CHANCE
Exhibit 10.2
NTL COMMUNICATIONS LIMITED
AS PARENT
NTL INVESTMENT HOLDINGS LIMITED
AS POST-NOVATION BORROWER
NTL COMMUNICATIONS CORP.
(to be renamed NTL INCORPORATED on the Plan Effective Date)
AS NEW NTL
J.P. MORGAN plc
(formerly known as CHASE MANHATTAN PLC)
AND MORGAN STANLEY DEAN WITTER BANK LIMITED
AS ARRANGERS AND JOINT BOOK MANAGERS
J.P. MORGAN EUROPE LIMITED
(formerly known as CHASE MANHATTAN INTERNATIONAL LIMITED)
AS AGENT, SECURITY TRUSTEE AND SECOND SECURITY TRUSTEE
AND
OTHERS
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CREDIT AGREEMENT
MADE ON 30 MAY 2000,
AS AMENDED OR WAIVED PURSUANT TO LETTERS DATED 6
JUNE 2000 AND 28 JULY 2000,
AMENDMENT AGREEMENTS DATED 8 JUNE 2000, 30 JUNE
2000 AND 4 SEPTEMBER 2000, A NOVATION AGREEMENT
DATED 21 FEBRUARY 2001, LETTERS OF CONSENT DATED 22
DECEMBER 2000 AND 29 JANUARY 2001, AS AMENDED AND
RESTATED PURSUANT TO A RESTATEMENT AMENDMENT
AGREEMENT DATED 26 SEPTEMBER 2001, AS AMENDED OR
WAIVED PURSUANT TO LETTERS DATED 22 OCTOBER 2001
AND 25 MARCH 2002 AND AS AMENDED AND RESTATED
PURSUANT TO A RESTATEMENT AMENDMENT AGREEMENT
DATED 9 January 2003
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CONTENTS
Clause Page
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1. Definitions And Interpretation..................................................................................1
2. The Facilities.................................................................................................51
3. Utilisation Of The Revolving Facility..........................................................................53
4. Payment And Calculation Of Interest On Revolving Advances......................................................54
5. Utilisation Of The Term Facility...............................................................................55
6. Interest Periods For Term Advances.............................................................................55
7. Payment And Calculation Of Interest On Term Advances...........................................................56
8. Market Disruption And Alternative Interest Rates...............................................................56
9. Notification...................................................................................................58
10. Repayment Of The Revolving Facility............................................................................58
11. Repayment Of The Term Facility.................................................................................58
12. Cancellation And Prepayment....................................................................................59
13. Mandatory Prepayment...........................................................................................61
14. Taxes..........................................................................................................69
15. Tax Receipts...................................................................................................70
16. Increased Costs................................................................................................72
17. Illegality.....................................................................................................73
18. Mitigation.....................................................................................................73
19. Representations................................................................................................74
20. Financial Information..........................................................................................78
21. Financial Condition............................................................................................86
22. Covenants......................................................................................................97
23. Events Of Default.............................................................................................109
24. Guarantee And Indemnity.......................................................................................115
25. Commitment Commission And Fees................................................................................118
26. Costs And Expenses............................................................................................119
27. Default Interest And Break Costs..............................................................................120
28. Borrowers' Indemnities........................................................................................121
29. Currency Of Account And Payment...............................................................................122
30. Payments......................................................................................................122
31. Set-Off.......................................................................................................124
32. Sharing.......................................................................................................124
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33. The Agent, The Arrangers And The Banks........................................................................127
34. Assignments And Transfers.....................................................................................132
35. Change Of Currency............................................................................................135
36. Additional Borrowers..........................................................................................136
37. Accession Of Guarantors.......................................................................................137
38. Calculations And Evidence Of Debt.............................................................................138
39. Remedies And Waivers, Partial Invalidity......................................................................139
40. Notices.......................................................................................................139
41. Counterparts..................................................................................................141
42. Amendments....................................................................................................141
43. Governing Law.................................................................................................145
44. Jurisdiction..................................................................................................145
Schedule 1 The Banks 146
Part A (Revolving Banks)......................................................................................146
Part B (Term Banks)...........................................................................................148
Schedule 2 Form Of Transfer Certificate................................................................................149
Schedule 3 Initial Revolving Bank Conditions Precedent.................................................................152
Schedule 4 Notice Of Drawdown..........................................................................................156
Schedule 5 Existing Encumbrances.......................................................................................157
Schedule 6 Form Of Compliance Certificate..............................................................................159
Schedule 7 Form Of Borrower Accession Memorandum.......................................................................165
Schedule 8 Form Of Guarantor Accession Memorandum......................................................................167
Schedule 9 Additional Conditions Precedent.............................................................................169
Part A Accession Conditions Precedent.........................................................................169
Part B Security Documentation.................................................................................171
Schedule 10 Form Of Resignation Notice.................................................................................173
Schedule 11 Mandatory Costs............................................................................................174
Schedule 12 Members Of The Uk Group....................................................................................177
Schedule 13 Uk Group Principal Properties..............................................................................183
Schedule 14 Form Of Report On Title....................................................................................185
Schedule 15 Certain Addresses..........................................................................................186
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Schedule 16 The Guarantors.............................................................................................187
Schedule 17 Historic Representations...................................................................................193
Part A Representations Made Prior To The Amendment Agreement Dated 4 September 2000...........................194
Part B Representations Made On Or After The Amendment Agreement Dated 4 September 2000 But Prior To The First
Restatement Amendment Agreement........................................................................204
Part C Representations Made On Or After The First Restatement Amendment Agreement But Prior To The Second
Restatement Amendment Agreement........................................................................206
Appendix A The Plan - Article 1 - Definitions, Rules of Interpretation and Computation of Time
Appendix B Change of Control and Asset Disposition provisions of the Exit Financing Indenture
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THIS AGREEMENT made on 30 May 2000, as amended or waived pursuant to letters
dated 6 June 2000 and 28 July 2000, amendment agreements dated 8 June 2000, 30
June 2000 and 4 September 2000, a novation agreement dated 21 February 2001,
letters of consent dated 22 December 2000 and 29 January 2001, as amended and
restated pursuant to a restatement amendment agreement dated 26 September
2001, as amended or waived pursuant to letters dated 22 October 2001 and 25
March 2002 and as amended and restated pursuant to the Restatement Amendment
Agreement dated 9 January 2003 is
BETWEEN:
(1) NTL COMMUNICATIONS LIMITED, a company incorporated in England and
Wales with company number 3521915 (the "Parent");
(2) NTL INVESTMENT HOLDINGS LIMITED, a company incorporated in England
and Wales with company number 3173552 (the "Post-Novation Borrower");
(3) THE GUARANTORS (as defined below);
(4) NTL COMMUNICATIONS CORP. (to be renamed NTL Incorporated on the Plan
Effective Date), a company incorporated in Delaware ("New NTL");
(5) J.P. MORGAN plc (formerly known as Chase Manhattan plc) and MORGAN
STANLEY DEAN WITTER BANK LIMITED as arrangers and joint book managers
of the Revolving Facility (the "Arrangers");
(6) J.P. MORGAN EUROPE LIMITED (formerly known as Chase Manhattan
International Limited) as agent for the Banks (the "Agent");
(7) J.P. MORGAN EUROPE LIMITED (formerly known as Chase Manhattan
International Limited) as security trustee for the Finance Parties
(the "Security Trustee");
(8) J.P. MORGAN EUROPE LIMITED (formerly known as Chase Manhattan
International Limited) as security trustee for the Term Banks and the
Agent (the "Second Security Trustee"); and
(9) THE BANKS (as defined below).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Accession Memorandum" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"Accountants' Report" means the report prepared by Arthur Andersen,
the Target's accountants at such time, dated 14 February 2000 and
splitting the Target's financial statements for its financial years
ended 31 March 1997, 31 March 1998 and 31 March
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1999 between the CWC ConsumerCo Business and the CWC DataCo Business
(as set out in Part A of Appendix 8 of the CWC Circular).
"Acquisition" means the acquisition by Euroco of the issued share
capital of CWC Holdings pursuant to the Transaction Agreement.
"Acquisition Date" means the date on which the Acquisition is
completed, being a date on or prior to 31 March 2001.
"Additional Borrower" means any company which has become an
Additional Borrower under the Revolving Facility in accordance with
Clause 36 (Additional Borrowers).
"Additional Finance Provider" means each of Cisco Systems Finance
International and Export Development Canada.
"Additional Finance Provider Accession Date" means 2 October 2001.
"Additional Obligor" means an Additional Borrower or a Guarantor.
"Advance" means a Revolving Advance or a Term Advance.
"Affiliate Transaction" means any transaction between an Obligor or
any other member of the UK Group and an affiliate thereof, of a type
referred to at paragraphs (a) to (l) of sub-clause 22.27.1 of Clause
22.27 (Transactions with Affiliates).
"Applicable High Yield Index" means:
(a) the index of securities issued by US cable television
companies included in the Deutsche Bank Global High Yield
Index; or
(b) if the index referred to at paragraph (a) above does not
exist at any relevant time, the index of securities issued
by US cable television companies included in the CSFB High
Yield Index; or
(c) if the index referred to at paragraph (a) above and the
index referred to at paragraph (b) above do not exist at any
relevant time, such other publicly available index which
would most closely resemble the index referred to at
paragraph (b) above had it continued to exist, as may be
agreed between the Agent (acting on the instructions of an
Instructing Group) and New NTL (in each case acting
reasonably) provided that until any such agreement the index
referred to at paragraph (b) above in the form immediately
prior to it ceasing to exist shall be used.
"Asset Adjustment Payments" means:
(a) a payment made by a member of the UK Group to a company
carrying on the CWC DataCo Business, in respect of a
transfer of assets from that company carrying on the CWC
DataCo Business to such a member of the UK Group where (i)
such payment by the member of the UK Group is in cash and in
an amount equal to the full market value (including any
amount in respect of VAT) of the relevant assets transferred
and (ii) Cable & Wireless is obliged under the
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Transaction Agreement to reimburse the member of the UK Group in
respect of such payment; or
(b) a payment made by a company carrying on the CWC DataCo
Business to a member of the UK Group, in respect of a
transfer of assets from such a member of the UK Group to
that company carrying on the CWC DataCo Business where (i)
such payment by the company carrying on the CWC DataCo
Business is in cash and in an amount equal to the full
market value (including any amount in respect of VAT) of the
relevant assets transferred and (ii) New NTL is obliged to
reimburse or, if not so obliged, reimburses the company
carrying on the CWC DataCo Business in respect of such
payment; or
(c) a payment made by a member of the UK Group to a company
carrying on the CWC DataCo Business, in respect of a
transfer of assets from that company carrying on the CWC
DataCo Business to such member of the UK Group where (i)
such payment by the member of the UK Group is in cash and in
an amount equal to the VAT chargeable on the supply
constituted by the transfer of the relevant assets to the
member of the UK Group and (ii) Cable & Wireless is obliged
under the Transaction Agreement to pay to the company
carrying on the CWC DataCo Business an amount equal to the
full market value (exclusive of any amount in respect of
VAT) of the relevant asset transferred; or
(d) a payment made by a company carrying on the CWC DataCo
Business to a member of the UK Group, in respect of a
transfer of assets from such a member of the UK Group to
that company carrying on the CWC DataCo Business where (i)
such payment by the company carrying on the CWC DataCo
Business is in cash and in an amount equal to the VAT
chargeable on the supply constituted by the transfer of the
relevant assets to the company carrying on the CWC DataCo
Business and (ii) New NTL is obliged to pay or, if not so
obliged, pays to the member of the UK Group an amount equal
to the full market value (exclusive of any amount in respect
of VAT) of the relevant asset transferred,
in the case of paragraph (a) above, in accordance with the terms of
the Transaction Agreement and, in the case of each of paragraphs (b),
(c) and (d) above, until such time as the rights, benefits and
obligations of Euroco under the Transaction Agreement in respect of
Asset Adjustment Payments have been transferred to New NTL, in
accordance with the Asset Adjustment Payments Memorandum and at any
time after such transfer in accordance with the Transaction
Agreement.
"Asset Adjustment Payments Memorandum" means the memorandum relating
to Asset Adjustment Payments certified by an Authorised Signatory of
New NTL and delivered to the Agent as a condition precedent to the
Second Restatement Amendment Effective Date.
"Asset Passthrough" means a series of transactions, commencing (in so
far as it affects the UK Group) with a transaction between NTL UK and
a member of the UK Group, which may be followed by one or more
similar transactions between various members of the UK Group, and
culminating with a similar transaction between a member of the UK
Group and a Final Asset Transferee, the purpose of which is to enable
NTL UK to
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indirectly transfer assets (other than cash) to that Final Asset
Transferee by way of transfers of those assets to and from (and, if
necessary, between) one or more members of the UK Group in such a
manner as to be neutral to the UK Group taken as a whole provided
that:
(a) the consideration payable (if any) by the first member of
the UK Group to acquire such assets to NTL UK comprises
either (i) cash funded or to be funded directly or
indirectly by a payment from the Final Asset Transferee in
connection with that series of transactions or (ii)
Subordinated Funding;
(b) if the Parent (having acquired such assets from NTL UK)
transfers them on to another member of the UK Group, the
consideration payable by such a member of the UK Group
comprises either (i) cash funded or to be funded directly or
indirectly by a payment from the Final Asset Transferee in
connection with that series of transactions or (ii) Parent
Funding;
(c) the consideration payable by the Final Asset Transferee is
equal to the consideration received or receivable by NTL UK;
(d) the consideration payable by each member of the UK Group
participating in such a series of transactions is equal in
value;
(e) all of the transactions comprising such a series of
transactions (from and including the transfer of the assets
by NTL UK to and including the acquisition of those assets
by the Final Asset Transferee) are completed within two
Business Days; and
(f) upon completion of all of the transactions comprising such a
series of transactions, no person (other than another member
of the UK Group and provided that no member of the UK Group
which is not an Obligor may have recourse pursuant to such
transactions, to a member of the UK Group which is an
Obligor) has any recourse to any member of the UK Group in
relation to such a series of transactions (other than in
respect of (i) the Subordinated Funding mentioned in
paragraph (a) above and (ii) covenants as to title provided
in favour of the Final Asset Transferee on the same terms as
such covenants were provided in favour of NTL UK in respect
of the relevant assets).
"Assigned Debt" means any loan made by the Parent to any other member
of the UK Group, where the Parent's rights in respect of any such
loan have been assigned to the Security Trustee and the Second
Security Trustee pursuant to the Parent Intra-Group Loan Assignment
and the Second Parent Intra-Group Loan Assignment.
"Authorised Signatory" means, in relation to the Parent, New NTL, NTL
UK, an Obligor or a proposed Obligor, any person who is duly
authorised (in such manner as may be reasonably acceptable to the
Agent) and in respect of whom the Agent has received a certificate
signed by a director or another Authorised Signatory of the Parent,
New NTL, NTL UK or, as the case may be, such Obligor or proposed
Obligor setting out the name and signature of such person and
confirming such person's authority to act.
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"Available Revolving Commitment" means, in relation to a Revolving
Bank at any time and save as otherwise provided herein, its Revolving
Commitment at such time less its share of the Revolving Advances
which are then outstanding and not due for repayment, provided that
such amount shall not be less than zero.
"Available Revolving Facility" means, at any time, the aggregate
amount of the Available Revolving Commitments adjusted, in the case
of any proposed drawdown, so as to take into account:
(a) any reduction in the Revolving Commitment of a Revolving
Bank pursuant to the terms hereof;
(b) the amount of any Revolving Advance which, pursuant to any
other drawdown, is to be made; and
(c) the amount of any Revolving Advance which is due to be
repaid,
on or before the proposed drawdown date.
"Average Revenue Contributions" means, in respect of any asset at any
time:
A + B
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2
where:
A = the revenue generated by, or attributable (whether in
whole or in part) to, such asset during the immediately
preceding financial year of the Parent, expressed as a
percentage of the aggregate of the consolidated revenue of
the UK Group for such a financial year and, to the extent
that the Target Group was not part of the UK Group for any
part of such financial year, a determination by the Parent
of the amount of the consolidated revenue of the Target
Group for the part of such financial year for which the
Target Group was not part of the UK Group; and
B = the revenue generated by, or attributable (whether in
whole or in part) to, such asset during the financial year
of the Parent preceding that referred to in A above,
expressed as a percentage of the aggregate of the
consolidated revenue of the UK Group for such financial year
and, to the extent that the Target Group was not part of the
UK Group for any part of such financial year, a
determination by the Parent of the amount of the
consolidated revenue of the Target Group for the part of
such financial year for which the Target Group was not part
of the UK Group.
"Bank" means a Revolving Bank or a Term Bank.
"Bankruptcy Court" means the United States Bankruptcy Court for the
Southern District of New York.
"Borrower Accession Memorandum" means a memorandum substantially in
the form set out in Schedule 7 (Form of Borrower Accession
Memorandum).
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"Borrowers" means the Post-Novation Borrower and each Additional
Borrower, provided that such company has not been released from its
rights and obligations hereunder in accordance with Clause 36.3
(Resignation of a Borrower).
"Budget" means a budget delivered by the Parent to the Agent pursuant
to Clause 20.6 (Budgets).
"Business Day" means a day (other than a Saturday or Sunday) which is
not a public holiday and on which banks are open for general business
in both London and New York.
"Business Plan" means the financial model, including profit and loss
accounts, balance sheets and cashflow projections relating to the UK
Group (assuming, for these purposes, that the Pushdown Date has
occurred), as set out in Annex 16 of the Information Memorandum.
"Cable & Wireless" means Cable & Wireless plc, a company incorporated
in England and Wales (company number 238525).
"Cable & Wireless Loan" means a loan of up to (pound)50,000,000 from
CWC Holdings to Cable & Wireless, made in relation to the costs
incurred by the CWC ConsumerCo Business in connection with the
separation of the CWC ConsumerCo Business and the CWC DataCo Business
(as provided for in the Transaction Agreement).
"Capital Events Proceeds" shall have the meaning ascribed thereto in
the Working Capital Facility Agreement.
"Capital Expenditure" has the meaning given to it in Clause 21.3
(Financial Definitions).
"Captive Insurance Company" means NTL Insurance Limited or its
successor as the captive insurance company for the Group (or any part
thereof which includes the UK Group).
"Caxton" means Caxton Holdings Limited, a company incorporated in
England and Wales (company number 3840888), being (prior to the First
Caxton Sale) a wholly owned subsidiary of the Target which, together
with its subsidiaries, carries on the CWC DataCo Business.
"Charged Account" means the New NTL Charged Account or, as the case
may be, the New Holdco Charged Account.
"Commitment" means, in relation to a Bank at any time, the aggregate
of its Revolving Commitment and its Term Commitment.
"Compliance Certificate" means a certificate substantially in the
form set out in Schedule 6 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking in
the standard form from time to time of the LMA or in such other form
as may be agreed between the Parent and the Agent, addressed to the
Parent or, in the case of any confidentiality
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undertaking dated after the Second Restatement Amendment Effective
Date, addressed to the Parent and New NTL.
"Consolidated Annualised EBITDA" has the meaning given to it in
Clause 21.3 (Financial Definitions).
"Covenant Group" means New NTL and any subsidiary of New NTL which is
a holding company of the Parent (such subsidiaries of New NTL, at the
Second Restatement Amendment Effective Date, being New Holdco and NTL
UK).
"CWC Circular" means the circular to the Target's shareholders dated
14 February 2000 (as supplemented by a circular dated 3 March 2000),
relating to the Scheme and the proposed acquisition of the CWC DataCo
Business by Cable & Wireless and the CWC ConsumerCo Business by
Euroco.
"CWC ConsumerCo Business" means the residential cable, business
cable, indirect residential telephony, residential internet and
digital television development and services businesses owned and
operated by the Target and its subsidiaries.
"CWC DataCo Business" means the corporate, business, internet
protocol and wholesale operations carried on by the Target and its
subsidiaries prior to the First Caxton Sale.
"CWC Holdings" means NTL (CWC Holdings), formerly known as Cable &
Wireless Communications (Holdings) plc, a company incorporated in
England and Wales with company number 3922682.
"Debentures" means:
(a) the debenture dated 21 February 2001 granted by certain
Obligors in favour of the Security Trustee;
(b) the debenture dated 27 September 2001 granted by certain
Obligors in favour of the Second Security Trustee;
(c) the debenture dated 11 June 2001 granted by NTL Glasgow
Holdings Limited and NTL Kirklees Holdings Limited in favour
of the Security Trustee;
(d) the debenture dated 25 March 2002 granted by NTL Rectangle
Limited in favour of the Security Trustee; and
(e) the debenture dated 23 August 2002 granted by Herts Cable
Limited and Northampton Cable Television Limited in favour
of the Security Trustee,
and any other debentures, in the agreed form, executed or to be
executed in connection herewith, creating first ranking fixed and
floating charges over the whole of the assets and undertaking of the
entity party thereto as Obligor save to the extent that such assets
include:
(i) shares or any other interests in or assets of a
Project Company;
(ii) shares in a UK Group Excluded Subsidiary; or
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shares in Cable Guide Limited, and includes, where
the context so admits, any further or supplemental
charge or security granted pursuant thereto.
"Debtors" has the meaning ascribed thereto in Appendix A (The Plan -
Article I - Definitions, Rules of Interpretation and Computation of
Time).
"Diamond Cable" means Diamond Cable Communications Limited, a company
registered in England and Wales with company number 02965241.
"Diamond Holdings" means Diamond Holdings Limited, a company
registered in England and Wales with company number 03483724.
"Diamond Holdings Notes" means, collectively, the (a) 10% Senior
Notes due 2008 issued by Diamond Holdings (and guaranteed by Diamond
Cable) under an indenture dated 6 February 1998 and (b) 91/8% Senior
Notes due 2008 issued by Diamond Holdings (and guaranteed by Diamond
Cable) under an indenture dated 6 February 1998.
"Disclosure Letter" means the letter dated on or about the Execution
Date, from the Parent to the Agent (on behalf of the Finance
Parties), setting out various matters to be excluded from certain
representations and covenants in this Agreement.
"Disclosure Statement" means the written disclosure statement
relating to the Plan, as approved by the Bankruptcy Court on 15 July
2002.
"Dispute" means any dispute referred to in Clause 44 (Jurisdiction).
"Dormant Subsidiary" means, at any time, with respect to any company,
any subsidiary of such company which is "dormant" as defined in
section 249AA of the Companies Act 1985 (or the equivalent under the
laws of the jurisdiction of incorporation of the relevant company).
"EBIT" has the meaning given to it in Clause 21.3 (Financial
Definitions).
"EBITDA" has the meaning given to it in Clause 21.3 (Financial
Definitions).
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU Legislation" means legislative measures of the European Union
for the introduction of, changeover to or operation of the euro in
one or more member states, being in part legislative measures to
implement the third stage of EMU.
"Encumbrance" means (a) a mortgage, standard security, charge,
pledge, lien or other encumbrance securing any obligation of any
person, (b) any arrangement under which money or claims to, or the
benefit of, a bank or other account may be applied, set off or made
subject to a combination of accounts so as to effect discharge of any
sum owed or payable to any person or (c) any other type of
preferential arrangement (including any title transfer and retention
arrangement) having a similar effect.
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"Environmental Claim" means any claim, proceeding or investigation by
any person pursuant to any Environmental Law.
"Environmental Law" means any applicable law in any jurisdiction in
which any member of the UK Group conducts business which relates to
the pollution or protection of the environment or harm to or the
protection of human health or the health of animals or plants.
"Environmental Permits" means any permit, licence, consent, approval
and other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of
the business of any member of the UK Group conducted on or from the
properties owned or used by the relevant member of the UK Group.
"Equity Rights", and each defined term referred to in the definition
thereof, has the meaning ascribed thereto in Appendix A (The Plan -
Article I - Definitions, Rules of Interpretation and Computation of
Time).
"Equity Rights Eligible Preferred Stock", and each defined term
referred to in the definition thereof, has the meaning ascribed
thereto in Appendix A (The Plan - Article I - Definitions, Rules of
Interpretation and Computation of Time).
"Equity Rights Offering" means the offer of Equity Rights to holders
of Equity Rights Eligible Preferred Stock and Old Common Stock as of
the Equity Rights Offering Record Date to acquire, as a detachable
unit, New NTL Common Stock and Series A Warrants.
"Equity Rights Offering Record Date", and each defined term referred
to in the definition thereof, has the meaning ascribed thereto in
Appendix A (The Plan - Article I - Definitions, Rules of
Interpretation and Computation of Time).
"Euroco" means NTL Incorporated (formerly known as NTL Holdings Inc.
and to be renamed NTL Europe, Inc. on the Plan Effective Date), a
company incorporated in Delaware.
"Event of Default" means any circumstance described as such in Clause
23 (Events of Default).
"Excess Capacity Network Services" means the provision of network
services, or agreement to provide network services, by a member of
the UK Group in favour of one or more of its affiliates where such
network services are only provided in respect of the capacity
available to such member of the UK Group in excess of that network
capacity it requires to continue to provide current services to its
existing and projected future customers and to allow it to provide
further services to both its existing and projected future customers
in accordance with the Updated Business Plan.
"Excess Cash Flow" means, for any Financial Quarter, Operating Cash
Flow for that period less Group Total Debt Service for that period.
"Excluded Contributions" means the cash proceeds of:
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(a) any Permitted Refinancing;
(b) the Exit Financing; and
(c) the Exit Shares.
"Excluded Debt and Equity" means the cash proceeds of:
(a) any Permitted Refinancing;
(b) the Exit Financing;
(c) the Exit Shares;
(d) the Equity Rights Offering; and
(e) the Noteholder Election Option.
"Execution Date" means the date this Agreement was originally entered
into, being 30 May 2000.
"Existing Covenant Group Performance Bonds and Guarantees" means:
(a) the performance bond dated 6 May 1999 in an aggregate amount
of up to (pound)2,000,000 issued by JPMorgan Chase Bank at
the request of NTL UK in favour of the Commissioners of HM
Customs and Excise;
(b) the deed of guarantee dated 30 November 2001 in an amount of
(pound)1,500,000 between JPMorgan Chase Bank and London
Stock Exchange PLC and entered into by JPMorgan Chase Bank
at the request of NTL UK;
(c) the deed of guarantee dated 6 September 2001 in an amount of
(pound)5,043,438 between The Chase Manhattan Bank (now known
as JPMorgan Chase Bank) and Thomas More Square Limited
relating to premises on floors 1 to 5, The Quadrant, Thomas
More Square, London E1 and entered into by The Chase
Manhattan Bank (now known as JPMorgan Chase Bank) at the
request of NTL UK;
(d) the deed of guarantee dated 6 September 2001 in an amount of
(pound)1,032,100 between The Chase Manhattan Bank (now known
as JPMorgan Chase Bank) and Thomas More Square Limited
relating to premises on floor 6, The Quadrant, Thomas More
Building, London E1 and entered into by The Chase Manhattan
Bank (now known as JPMorgan Chase Bank) at the request of
NTL UK; and
(e) the deed of guarantee dated 6 September 2001 in an amount of
(pound)1,990,250 between The Chase Manhattan Bank (now known
as JPMorgan Chase Bank) and Thomas More Square Limited
relating to premises on floors 7 to 8, The Quadrant, Thomas
More Building, London E1 and entered into by The Chase
Manhattan Bank (now known as JPMorgan Chase Bank) at the
request of NTL UK.
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"Existing Performance Bonds" means:
(a) performance bonds in an aggregate amount of up to
(pound)7,100,000 issued by Zurich Re at the request of
certain members of the Target Group;
(b) performance bonds in an aggregate amount of up to
(pound)1,139,199 issued by National Westminster Bank Plc at
the request of certain members of the Target Group; and
(c) performance bonds in an aggregate amount of up to
(pound)2,800,000 issued by National Westminster Bank Plc at
the request of certain members of the UK Group.
"Existing Target Indebtedness" shall bear the meaning given to such
term in the form of this Agreement in force as at the Execution Date.
"Exit Financing" means the New NTL Exit Facility (together with the
related payment-in-kind notes referred to at paragraphs (g) and (h)
of the definition of New NTL Exit Facility Agreements) or any
refinancing of the New NTL Exit Facility (together with the related
payment-in-kind notes referred to at paragraphs (g) and (h) of the
definition of New NTL Exit Facility Agreements) on terms set out in
the New NTL Exit Facility Agreements.
"Exit Financing Indenture" means the indenture referred to at
paragraph (a) of the definition of New NTL Exit Facility Agreements.
"Exit Shares" means the 500,000 shares of Common Stock of New NTL
with a par value of $0.01 per share to be purchased by the providers
of the New NTL Exit Facility on or before the Plan Effective Date.
"Extended UK Group" means:
(a) the Parent;
(b) NTL (South Hertfordshire) Limited (formerly known as Cable &
Wireless Communications (South Hertfordshire) Limited) for
so long as a member of the UK Group is the general partner
of South Hertfordshire United Kingdom Fund, Ltd;
(c) each of the Parent's direct and indirect subsidiaries from
time to time (other than each member of the NTL Ireland
Sub-Group); and
(d) each member of the NTL Diamond Sub-Group for so long as the
relevant member of the NTL Diamond Sub-Group is a member of
the Group.
"Facility" means the Revolving Facility or the Term Facility.
"Facility Office" means, in relation to the Agent, the office
identified with its signature in the Second Restatement Amendment
Agreement or such other office as it may select by notice and, in
relation to any Bank, the office notified by it to the Agent in
writing prior to the Execution Date (or, in the case of a Transferee,
at the end of the Transfer
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Certificate to which it is a party as Transferee or, in relation to
an Additional Finance Provider, the office notified by it to the
Agent in writing on or prior to the Additional Finance Provider
Accession Date or such other office as it may from time to time
select by notice in writing to the Agent.
"Final Asset Transferee" means the member of the Group (or any person
in which a member of the UK Group owns an interest but which is not a
member of the Group), other than a member of the UK Group, who is the
final transferee in respect of a transfer from NTL UK, through one or
more members of the UK Group.
"Finance Documents" means this Agreement, any Borrower Accession
Memorandum delivered hereunder, any Guarantor Accession Memorandum
delivered hereunder, the letter referred to in Clause 25.5 (Agency
and Other Fees), any Secured Hedging Agreement, the Security
Documents, the Second Security Documents, the Security Trust
Agreement, the Second Security Trust Agreement, the NTL UK Revolving
Bank Subordination Agreement, the NTL UK Term Bank Subordination
Agreement, the First Restatement Amendment Agreement, the Second
Restatement Amendment Agreement and any other document designated as
such by the Agent and the Parent provided that the letters dated 8
March 2002 and 28 March 2002 from the Agent (on behalf of the Banks)
to the Parent, New NTL, the Post-Novation Borrower and the Guarantors
shall cease to be Finance Documents on the Second Restatement
Amendment Effective Date.
"Finance Parties" means, at any time, the Agent, the Arrangers, the
Security Trustee, the Second Security Trustee, the Banks and the
Hedge Counterparties at such time.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit facility or
performance bond facility;
(c) any Hedging Agreement (and the amount of the Financial
Indebtedness in relation thereto shall be calculated by
reference to the mark-to-market valuation of such
transaction at the relevant time); and
(d) (without double counting) any guarantee or indemnity for any
of the items referred to in paragraphs (a) to (c) above.
"Financial Quarter" has the meaning given to it in Clause 21.3
(Financial Definitions).
"First Caxton Sale" means the transfer, after the Scheme Effective
Date, of Caxton by the Target to CWC Holdings, as authorised by the
Scheme, such a transfer being made at book value (subject to
adjustment under Schedule 19 of the Transaction Agreement), on terms
that the price payable by CWC Holdings is left outstanding to the
extent that CWC Holdings does not assume at least a corresponding
amount of indebtedness of the Target in consideration for the sale of
Caxton.
"First Restatement Amendment Agreement" means the amendment agreement
dated 26 September 2001 between, inter alia, certain of the parties
hereto, pursuant to which
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this Agreement was originally amended and restated to include, inter
alia, the terms and conditions relating to the Term Facility.
"France Telecom", and each defined term referred to in the definition
thereof, has the meaning ascribed thereto in Appendix A (The Plan -
Article I - Definitions, Rules of Interpretation and Computation of
Time).
"Funded Excluded Subsidiary" means, in respect of a Funding
Passthrough, a UK Group Excluded Subsidiary or any person in which a
member of the UK Group owns an interest but which is not a member of
the UK Group which:
(a) indirectly receives funding from NTL UK; and/or
(b) by way of dividend or other distribution, loan or payment of
interest on or the repayment of the principal amount of any
indebtedness owed by it, directly or indirectly, makes a
payment to NTL UK.
"Funding Passthrough" means a series of transactions between NTL UK,
one or more members of the UK Group and a Funded Excluded Subsidiary
where:
(a) in the case of funding being provided by NTL UK to the
Funded Excluded Subsidiary, that funding is:
(i) first made available by NTL UK to the Parent by
way of Subordinated Funding;
(ii) secondly (if relevant) made available by the
Parent to any other members of the UK Group by way
of Parent Funding; and
(iii) thirdly (if relevant) made available by one or
more transactions between members of the UK Group
(other than the Parent) and finally made available
by a member of the UK Group to the Funded Excluded
Subsidiary in all such cases by way of either the
subscription for new equity capital, the advancing
of loans or capital contribution; or
(b) in the case of a payment to be made by the Funded Excluded
Subsidiary to NTL UK, that payment is:
(i) first made by the Funded Excluded Subsidiary to a
member of the UK Group, and thereafter between
members of the UK Group (as relevant), by way of
dividend or other distribution, loan or payment of
interest on or the repayment of the principal
amount of any indebtedness owed by such Funded
Excluded Subsidiary or relevant member of the UK
Group; and
(ii) finally made by the Parent to NTL UK by way of
dividend or other distribution, loan or the
payment of interest on or the repayment of the
principal amount of any Subordinated UK Group
Debt.
"Group" means:
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(a) for the purposes of Clause 20.1 (Annual Statements), Clause
20.2 (Quarterly Statements), Clause 21.2 (Group Financial
Condition), Clause 21.3 (Financial Definitions) and any
other provisions of this Agreement using the definitions
defined in Clause 21.3 (Financial Definitions):
(i) New NTL and its subsidiaries for the time being;
and
(ii) NTL (South Hertfordshire) Limited (formerly known
as Cable & Wireless Communications (South
Hertfordshire) Limited for so long as a member of
the Group is the general partner of South
Hertfordshire United Kingdom Fund, Ltd.; and
(b) for all other purposes, New NTL and its subsidiaries for the
time being.
"Group Total Debt Service" has the meaning given to it in Clause 21.3
(Financial Definitions).
"Guarantor" means any company listed in Schedule 16 (The Guarantors)
or any company which has become a Guarantor in accordance with Clause
37 (Accession of Guarantors) provided that (in either case) such
company has not been released from its rights and obligations
hereunder in accordance with Clause 37.3 (Resignation of a
Guarantor).
"Guarantor Accession Memorandum" means a memorandum substantially in
the form set out in Schedule 8 (Form of Guarantor Accession
Memorandum).
"Hedge Counterparty" means a Bank who has agreed to enter into a
Secured Hedging Agreement which complies with the provisions of this
Agreement.
"Hedging Agreement" means an agreement in respect of an interest rate
swap, currency swap, forward foreign exchange transaction, cap,
floor, collar or option transaction or any other treasury transaction
or any combination thereof or any other transaction entered into in
connection with protection against or benefit from fluctuation in any
rate or price.
"Hedging Liabilities" means all present and future sums and actual or
contingent liabilities and obligations payable, owing, due or
incurred by a member of the UK Group to any Hedge Counterparty
pursuant to the terms of any Secured Hedging Agreement.
"Hedging Strategy" means the hedging strategy adopted by the Parent
from time to time for the sole purpose of hedging the UK Group's then
existing interest rate or currency risk exposure in connection with
its ordinary business acting reasonably and prudently and not for
speculative or proprietary trading purposes.
"ICTA" means the Income and Corporation Taxes Act 1988.
"Indebtedness for Borrowed Money" means any indebtedness for or in
respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
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(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument (for the avoidance of doubt excluding any
such instrument issued solely by way of consideration for
the acquisition of assets where such an instrument is not
issued for the purpose of raising finance);
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable in cash (other than redeemable
shares issued by way of consideration for the acquisition of
assets where such shares are not issued for the purpose of
raising finance);
(e) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with generally
accepted accounting principles in the relevant jurisdiction,
be treated as a finance or capital lease;
(f) the amount of any liability in respect of any advance or
deferred purchase agreement if the primary reason for
entering into such agreement is to raise finance;
(g) receivables sold or discounted (other than on a non-recourse
basis);
(h) any agreement or option to re-acquire an asset if the
primary reason for entering into such agreement or option is
to raise finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing; and
(j) (without double counting) the amount of any liability in
respect of any guarantee or indemnity for any of the items
referred to in paragraphs (a) to (i) above.
"Indenture of Mortgage" means the first ranking fixed security over
certain properties situated in Northern Ireland, dated 21 February
2001, granted by National Transcommunications Limited and CableTel
Northern Ireland Limited in favour of the Security Trustee.
"Information Memorandum" means the document concerning the CWC
ConsumerCo Business and the UK Group which at NTL (Delaware) Inc.'s
and the Parent's request and on their behalf, was prepared in
relation to this transaction and distributed by the Arrangers to
selected banks during May 2000.
"Instructing Group" means, at any time, a Bank or Banks whose
Commitments amount (or, if each Bank's Commitment has been reduced to
zero, did immediately before such reduction to zero, amount) in
aggregate to more than sixty-six and two thirds per cent. of the
Total Commitments.
"Insurance Proceeds" means the proceeds of any insurance claim
intended to compensate for damage to, or destruction of, any asset or
interruption of business received by any member of the UK Group after
deducting:
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(a) any reasonable out of pocket expenses incurred by any member
of the UK Group in relation to such a claim; and
(b) proceeds relating to third party claims, which are applied
towards meeting such claims.
"Intellectual Property" means all patents, trade marks, service
marks, designs, copyrights, design rights, moral rights, inventions,
confidential information, know-how and other intellectual property
rights and interests, whether registered or unregistered, and the
benefit of all licences, applications and rights to use such
intellectual property now or hereafter belonging to any member of the
UK Group.
"Intercreditor Agreement" means the agreement dated on or about the
Execution Date, as amended on the Term Effective Date, between the
Banks, the lenders under the Working Capital Facility, the Agent, the
Working Capital Facility Agent and the Security Trustee, by which the
lenders under the Working Capital Facility undertake certain
obligations in respect of their rights under the Working Capital
Facility.
"Interest Period" has the meaning ascribed in Clause 6.1 (Interest
Periods) in relation to any Term Advance and the meaning ascribed in
Clause 27.1 (Default Interest Periods) in relation to any Unpaid Sum.
"Intra-Group Services" means:
(a) the provision of services by a member of the UK Group to a
member of the Group, where such member of the Group requires
those services to enable it to carry on its business and
provided that the consideration for the provision thereof is
in the reasonable opinion of the Parent no less than the
cost (save in any immaterial respect) incurred by such
member of the UK Group in providing such services;
(b) the provisions of services constituted by NTL Group Limited
employing personnel, acting as agent to buy equipment or
other assets or services or trade with residential customers
on behalf of other members of the Group, where the costs of
such employment or purchasing and the costs and revenues
generated by such trading are in the reasonable opinion of
the Parent reimbursed by or distributed (save in any
immaterial respect) to the relevant Group member; and
(c) the provision of services constituted by the Pre-Novation
Borrower acting as agent to trade with business customers on
behalf of other members of the Group, where the costs and
revenues of such trading are in the reasonable opinion of
the Parent reimbursed by or distributed (save in any
immaterial respect) to the relevant Group member.
"LIBOR" means, in relation to any amount to be advanced to or owing
by an Obligor under the Finance Documents on which interest for a
given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which
displays the British Bankers Association Interest Settlement
Rate for sterling (being currently "3750") or the currency
of
-16-
<page>
any Unpaid Sum for such period as of 11.00 a.m. on the
Quotation Date for such period or, if such page or such
service shall cease to be available, such other page or such
other service for the purpose of displaying the British
Bankers Association Interest Settlement Rate for sterling
(or the currency of such Unpaid Sum) as the Agent, after
consultation with the Revolving Banks or, as the case may
be, the Term Banks and the Parent, shall select; or
(b) if no quotation for sterling (or the currency of such Unpaid
Sum) and the relevant period is displayed and the Agent has
not selected an alternative service on which a quotation is
displayed, the arithmetic mean (rounded upwards to five
decimal places) of the rates (as notified to the Agent) at
which each of the Reference Banks was offering to prime
banks in the London interbank market deposits in sterling
(or the currency of such Unpaid Sum) for such period as of
11.00 a.m. on the Quotation Date for such period.
"Licences" means each licence which is material to the conduct of the
business of any member of the UK Group.
"LMA" means the Loan Market Association.
"Loan" means, at any time, the aggregate of the Revolving Loan and
the Term Loan.
"Mandatory Cost Rate" means the rate determined in accordance with
Schedule 11 (Mandatory Costs).
"Material Adverse Effect" means:
(a) prior to the Pushdown Date:
(i) in respect of the Pre-Novation Borrower only, a
material adverse effect on (x) the business,
operations, property or condition (financial or
otherwise) of the Pre-Novation Borrower or (y) the
ability of the Pre-Novation Borrower to perform
its material obligations under the Finance
Documents to which it is a party; and
(ii) in all other cases, a material adverse effect on
(x) the business, operations, property or
condition (financial or otherwise) of the UK Group
taken as a whole and/or the Target Group taken as
a whole or (y) the ability of any Obligor to
perform its material obligations under the Finance
Documents to which it is a party; and
(b) at all times on and after the Pushdown Date, a material
adverse effect on (x) the business, operations, property or
condition (financial or otherwise) of the UK Group taken as
a whole or (y) the ability of any Obligor to perform its
material obligations under the Finance Documents to which it
is a party.
"Material Commercial Contracts" means any commercial agreements
entered into by any member of the UK Group which are reasonably
likely to be material to the business or prospects of the UK Group
taken as a whole.
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<page>
"Monthly Performance Update Report" means the report to be prepared
by the Reporting Accountants and delivered to the Agent in respect of
(inter alia) the performance of the Extended UK Group during the
relevant month against the projected performance of the Extended UK
Group as set out in the Updated Business Plan and each relevant
Budget delivered after the date of the Updated Business Plan.
"Net Average Revenue Contributions" means, at any time:
(a) the aggregate of the Average Revenue Contributions of all
assets disposed of by members of the UK Group under
paragraph (g) of the definition of Permitted Disposals,
less
(b) the aggregate of the estimated Average Revenue Contributions
of all assets acquired by members of the UK Group either in
exchange for, or out of the proceeds of the disposal of,
assets disposed of under paragraph (g) of the definition of
Permitted Disposals (such estimated Average Revenue
Contributions to be reasonably agreed between the Parent and
the Agent on the basis of the revenues such acquired assets
could have reasonably been expected to have generated for
the two financial years of the Parent immediately preceding
the date of their acquisition, had such assets been owned by
the relevant member of the UK Group throughout those two
financial years).
"New Holdco" means Communications Cable Funding Corporation, a
company incorporated in Delaware.
"New Holdco Charged Account" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances,
in the name of New Holdco, over which first ranking security is
granted in favour of the Security Trustee pursuant to the New Holdco
Security Over Cash Agreement and into which members of the UK Group
make deposits for the purpose of making Permitted Payments in
accordance with paragraph (d) of the definition thereof.
"New Holdco Security over Cash Agreement" means the assignment and
charge executed or to be executed by New Holdco in favour of the
Security Trustee, assigning and charging New Holdco's rights in
respect of sums deposited in the New Holdco Charged Account.
"New NTL Charged Account" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances,
in the name of New NTL over which first ranking security is granted
in favour of the Security Trustee pursuant to the New NTL Security
Over Cash Agreement into which members of the UK Group make deposits
for the purpose of making Permitted Payments in accordance with
paragraph (d) of the definition thereof.
"New NTL Common Stock", and each defined term referred to in the
definition thereof, has the meaning ascribed thereto in Appendix A
(The Plan - Article I - Definitions, Rules of Interpretation and
Computation of Time).
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<page>
"New NTL Exit Facility" means $558,249,000 aggregate principal
amount at maturity (exclusive of any payment-in-kind notes), 19%
senior secured notes due 2010, issued by New NTL, on or prior to the
Plan Effective Date.
"New NTL Exit Facility Agreements" means:
(a) the indenture between New NTL, the guarantors listed therein
and U.S. Bank National Association as trustee pursuant to
which New NTL will issue $558,249,000 aggregate principal
amount at maturity (exclusive of any payment-in-kind notes)
of 19% senior secured notes due 2010;
(b) the purchase agreement between New NTL, the guarantors
listed therein and the purchasers listed therein and entered
into in connection with the Exit Financing Indenture; and
(c) the exchange and registration rights agreement between New
NTL, the guarantors listed therein and the purchasers listed
therein and entered into in connection with the Exit
Financing Indenture;
(d) the triangle stock pledge agreement made by the holders of
membership interests in NTL (Triangle) LLC in favour of, or
for the benefit of, U.S. Bank National Association as
collateral agent for the benefit of the Secured Parties (as
defined therein) and the other parties thereto and entered
into in connection with the Exit Financing Indenture;
(e) the pledge and security agreement made by New NTL and the
senior guarantors listed therein in favour of, or for the
benefit of, U.S. Bank National Association as trustee for
the benefit of the Secured Parties (as defined therein) and
the other parties thereto and entered into in connection
with the Exit Financing Indenture;
(f) the equity registration rights agreement between New NTL and
the purchasers listed therein and entered into in connection
with the Exit Financing Indenture;
(g) the 19% senior secured notes due 2010 and referred to in the
definition of New NTL Exit Facility and any replacement
senior secured note issued as a result of the loss or
destruction of any issued senior secured note or issued to a
transferee of any issued senior secured note together with
any payment-in-kind notes issued in accordance with such
senior secured notes; and
(h) if and when issued as provided in the exchange and
registration rights agreement referred to at paragraph (c)
above or the Exit Financing Indenture, New NTL's senior
secured notes due 2010 issued in the Registered Exchange
Offer in exchange for the senior secured notes referred to
at paragraph (g) above or otherwise as provided in the Exit
Financing Indenture together with any payment-in-kind notes
issued in accordance with such senior secured notes,
in the case of each of the agreements referred to at paragraphs (a)
to (f) above and the 19% senior secured notes due 2010 referred to at
paragraph (g) above (other than any replacement senior secured notes
or payment-in-kind notes referred to at paragraph (g) above), dated
on or before the Plan Effective Date.
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<page>
"New NTL Security Over Cash Agreement" means the assignment and
charge executed or to be executed by New NTL in favour of the
Security Trustee, assigning and charging New NTL's rights in respect
of sums deposited in the New NTL Charged Account.
"Noteholder Election Option" means the option offered to the NTL CC
Subordinated Notes Holders, the NTL Delaware Subordinated Notes
Holders (other than France Telecom), and the NTL Inc. Subordinated
Notes Holders (other than France Telecom) as of the Noteholder
Election Option Record Date, to purchase (a) shares of New NTL Common
Stock and (b) shares of New NTL Common Stock (each accompanied by a
Series A Warrant) that were not subscribed for in the Equity Rights
Offering.
"Noteholder Election Option Record Date", and each defined term
referred to in the definition thereof, has the meaning ascribed
thereto in Appendix A (The Plan - Article I - Definitions, Rules of
Interpretation and Computation of Time).
"Notice of Drawdown" means a notice substantially in the form set out
in Schedule 4 (Notice of Drawdown).
"Notice Period" means, in relation to a Revolving Advance:
(a) the period commencing ten Business Days before the proposed
date for the making of that Revolving Advance and ending
2.00 p.m. three Business Days before the proposed date for
the making of that Revolving Advance; or
(b) such later time as all of the Revolving Banks may agree.
"NTL CC Subordinated Notes Holders", and each defined term referred
to in the definition thereof, has the meaning ascribed thereto in
Appendix A (The Plan - Article I - Definitions, Rules of
Interpretation and Computation of Time).
"NTL (CWC Holdings)" means NTL (CWC Holdings), a company incorporated
in England and Wales with company number 3922682.
"NTL Delaware Subordinated Note" means the note dated as of 5 April
2002 in the principal amount of (pound)90,000,000 evidencing
indebtedness originally owed by NTL UK to NTL (Delaware) Inc. and to
be transferred, on the Plan Effective Date, by NTL (Delaware) Inc. to
New Holdco against consideration paid in cash in an amount equal to
the face amount (or its equivalent in dollars) of such note together
with accrued interest thereon.
"NTL Delaware Subordinated Notes Holders", and each defined term
referred to in the definition thereof, has the meaning ascribed
thereto in Appendix A (The Plan - Article I - Definitions, Rules of
Interpretation and Computation of Time).
"NTL Diamond Sub-Group" means Diamond Cable, Diamond Holdings and
each of their subsidiaries from time to time.
"NTL Inc. Business Plan" means the long term financial plan warranted
by Euroco and NTL (Delaware) Inc. to SFG VI Inc in connection with an
investment made by SFG VI Inc. in Euroco and NTL (Delaware) Inc. in
June 2001.
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"NTL Inc. Subordinated Notes Holders", and each defined term referred
to in the definition thereof, has the meaning ascribed thereto in
Appendix A (The Plan - Article I - Definitions, Rules of
Interpretation and Computation of Time).
"NTL Ireland Sub-Group" means NTL Communications (Ireland) Limited
and its subsidiaries from time to time.
"NTL Triangle Sub-Group" means NTL Triangle LLC and its subsidiaries
from time to time.
"NTL UK" means NTL (UK) Group, Inc., a company incorporated in
Delaware.
"NTL UK Intra-Group Loan Assignment" means the assignment dated 21
February 2001 by NTL UK in favour of the Security Trustee, assigning
NTL UK's rights in respect of loans made or to be made by it to the
Parent.
"NTL UK Revolving Bank Subordination Agreement" means the
subordination agreement dated 30 May 2000 between NTL UK as the
lender, the Parent as the borrower and the Security Trustee, pursuant
to which, whilst sums remain outstanding under the Finance Documents,
no payments of interest, repayments of principal or any other
payments of any kind can be made in respect of indebtedness owed by
the Parent to NTL UK save as provided therein.
"NTL UK Term Bank Subordination Agreement" means the subordination
agreement dated 27 September 2001 between NTL UK as the lender, the
Parent as the borrower and the Second Security Trustee, pursuant to
which, whilst sums remain outstanding under the Term Facility, no
payments of interest, repayments of principal or any other payments
of any kind can be made in respect of indebtedness owed by the Parent
to NTL UK save as provided therein.
"Obligors" means the Borrowers and the Guarantors.
"Oftel" means the Director General of Telecommunications and/or any
other successor or other body or authority having, inter alia, the
right, function and/or obligation to monitor and enforce compliance
with the provisions of licences issued pursuant to the
Telecommunications Act 1984.
"Old Common Stock", and each defined term referred to in the
definition thereof, has the meaning ascribed thereto in Appendix A
(The Plan - Article I - Definitions, Rules of Interpretation and
Computation of Time).
"Operating Cash Flow" has the meaning given to it in 21.3 (Financial
Definitions).
"Original Financial Statements" means:
(a) in relation to the Parent, its audited consolidated
financial statements for its financial year ended 31
December 1998;
(b) in relation to the Pre-Novation Borrower, its audited
unconsolidated financial statements for its financial year
ended 31 December 1998; and
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(c) in relation to the Target (and insofar as they relate to the
CWC ConsumerCo Business), the consolidated financial
statements of the Target and its subsidiaries, prepared by
its auditors for the financial year ended 31 March 1999 (as
set out in the Accountants' Report) and the consolidated
financial statements of the Target and its subsidiaries,
prepared by its management for the six month period ended 30
September 1999 (as set out in the CWC Circular).
"Overdraft Facility" means any facility provided by a United Kingdom
clearing bank to a member of the UK Group.
"Parent Funding" means:
(a) the subscription by the Parent for new equity capital of any
other member of the UK Group; and
(b) Assigned Debt.
"Parent Intra-Group Loan Assignment" means the assignment dated 21
February 2001 by the Parent in favour of the Security Trustee,
assigning the Parent's rights in respect of loans made or to be made
by it to other members of the UK Group. For the avoidance of doubt:
(a) the reference to paragraphs (a) to (e), (h) or (j) of the
definition of Permitted Payment in paragraph (a) of the
definition of Permitted Loan Payment in the Parent
Intra-Group Loan Assignment shall, after the Second
Restatement Amendment Effective Date, be construed as a
reference to paragraphs (a) to (c) or (e) of the definition
of Permitted Payment; and
(b) the reference to paragraph (f) of the definition of
Permitted Payment in paragraph (b) of the definition of
Permitted Loan Payment in the Parent Intra-Group Loan
Assignment shall, after the Second Restatement Amendment
Effective Date, be construed as a reference to paragraph (d)
of the definition of Permitted Payment.
"Participating Member State" means any member state of the European
Union which has adopted the euro as its lawful currency at the
relevant time.
"Permitted Acquisitions" means:
(a) the incorporation of a company (which is or immediately
becomes a member of the UK Group) or the acquisition of the
shares in a newly incorporated company (which is or
immediately becomes a member of the UK Group) from its
subscribing shareholders, where such a company at all times:
(i) carries on business in an administrative capacity,
supporting the business of the UK Group (as
carried on in accordance with Clause 22.24 (Change
of Business));
(ii) acts as a captive insurance company in the role
previously performed by NTL Insurance Limited;
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(iii) acts as the holding company for, and the operating
company of, the assets of National
Transcommunications Limited, Singapore branch;
(iv) is the vehicle for any Permitted Acquisition; or
(v) acts as a healthcare trust company in relation to
the administration and provision of health
benefits to be provided to other members of the
Group;
(b) any acquisition made by a member of the UK Group pursuant to
the implementation of an Asset Passthrough or a Funding
Passthrough;
(c) any acquisition of assets as referred to in paragraphs (a)
or (c) of the definition of Asset Adjustment Payments;
(d) any acquisition made by a member of the UK Group of assets
from a company carrying on the CWC DataCo Business where (i)
no consideration is paid by the member of the UK Group to
the company carrying on the CWC DataCo Business in
connection with the transfer of such assets and (ii) Cable &
Wireless is obliged to pay to such company carrying on the
CWC DataCo Business the full market value (if any) of the
relevant assets transferred, all in accordance with the
Transaction Agreement;
(e) any acquisition by an Obligor or, as the case may be, a
member of the UK Group pursuant to a Permitted Disposal
within paragraphs (f), (h) or (i) of the definition thereof
and any acquisition by a member of the UK Group of shares
issued by a wholly-owned subsidiary of the Parent which is a
member of the UK Group provided that if the shares of such
wholly-owned subsidiary are subject to Security, such newly
issued shares shall also be subject to Security (in form and
substance the same as the existing Security or otherwise in
such form and substance as may be reasonably required by the
Agent) upon their issue;
(f) certain acquisitions to be agreed by an Instructing Group
(subject to such limitations, including in relation to the
aggregate value thereof, as may be required by an
Instructing Group) of assets of Euroco and its subsidiaries;
(g) any acquisition which is specifically and separately
consented to in writing by an Instructing Group prior to
such acquisition being made;
(h) the acquisition of the assets of National
Transcommunications Limited, Singapore branch, by a newly
incorporated company which is a member of the UK Group and
which acts as a holding company for, and the operating
company of, such assets; and
(i) acquisitions not falling within paragraphs (a) to (h) above
provided that the aggregate value of acquisitions permitted
by this paragraph (i) shall not, in any financial year of
the Parent, exceed in aggregate (pound)25,000,000 (or its
equivalent in other currencies).
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"Permitted Covenant Group Indebtedness" means any Financial
Indebtedness of any member of the Covenant Group:
(a) arising under a Permitted Refinancing;
(b) arising under a guarantee or other covenant for payment
given in respect of the Working Capital Facility or under a
covenant for payment given in the Security Documents or the
Second Security Documents;
(c) where such is owed by NTL UK to New Holdco or by New Holdco
to New NTL or by New NTL to New Holdco, or where such is
owed by NTL UK to another member of the Covenant Group
under, or in connection with any refinancing of, the NTL
Delaware Subordinated Note;
(d) arising in respect of the Existing Covenant Group
Performance Bonds and Guarantees;
(e) incurred on or after the Second Restatement Amendment
Effective Date provided that:
(i) the Group Net Consolidated Total Debt to
Consolidated Annualised EBITDA of the Group
covenant at Clause 21.2 (Group Financial
Condition) is complied with at the date on which
the relevant Financial Indebtedness is proposed to
be incurred and will be complied with on a pro
forma basis until the Term Final Maturity Date;
and
(ii) the final maturity date of such Financial
Indebtedness is, in the case of indebtedness
incurred by New NTL, a date no earlier than 1
September 2008 and, in the case of all other
indebtedness, a date no earlier than 1 March 2008;
(f) under any Hedging Agreement entered into by New NTL or New
Holdco under which New NTL or, as the case may be, New
Holdco enters into currency or interest swaps in relation to
underlying Financial Indebtedness of the Covenant Group
which is Permitted Covenant Group Indebtedness;
(g) arising in respect of the Exit Financing; and
(h) incurred in connection with the Plan and specifically and
separately consented to by an Instructing Group.
"Permitted Disposal" means any disposal:
(a) made in the ordinary and usual course of business;
(b) on arm's length commercial terms of an asset by a member of
the UK Group who is not an Obligor;
(c) for cash (if the relevant asset has any value) on arm's
length commercial terms of any surplus or obsolete assets no
longer required for the efficient operation of the business
of the UK Group;
-24-
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(d) of cash, where such a disposal is not otherwise prohibited
by the Finance Documents;
(e) by way of a realisation of a Permitted Investment;
(f) by an Obligor to another Obligor, provided that if the
relevant assets are subject to an Encumbrance pursuant to a
Security Document or a Second Security Document, they remain
so or become subject to a similar Encumbrance in favour of
the Finance Parties in the hands of the acquiring Obligor,
in each case without the re-opening of any insolvency
related hardening periods under the Insolvency Act 1986 or
any other relevant insolvency related legislation;
(g) on (A) arm's length commercial terms for cash consideration
or (B) in exchange for similar assets located in either the
United Kingdom or Ireland which the Agent (acting
reasonably) determines to be of a comparable or superior
quality provided that:
(i) in each case the Net Average Revenue Contributions
at no time exceed 5 per cent. of the consolidated
revenues of the UK Group, determined on a per
annum basis; and
(ii) the proceeds of any disposal under (A) of this
paragraph (g) are applied in accordance with
Clause 13.2 (Mandatory Prepayment from Asset
Disposals);
(h) of an interest in real or heritable property by way of a
lease or licence granted by a member of the UK Group to a
member of the UK Group;
(i) by a member of the UK Group who is not an Obligor to another
member of the UK Group;
(j) of any assets as referred to in paragraphs (b) or (d) of the
definition of Asset Adjustment Payments;
(k) of any assets by a member of the UK Group to a company
carrying on the CWC DataCo Business where (i) no
consideration is paid by the company carrying on the CWC
DataCo Business to the member of the UK Group in connection
with the transfer of such assets and (ii) New NTL is obliged
to pay or, if not so obliged, pays to such member of the UK
Group the full market value (if any) of the relevant assets
transferred, all in accordance with the Transaction
Agreement or, as the case may be, the Asset Adjustment
Payments Memorandum;
(l) of any assets pursuant to the implementation of an Asset
Passthrough or of any funds received pursuant to the
implementation of a Funding Passthrough;
(m) of any assets pursuant to a limited recourse asset
securitisation or a limited recourse factoring transaction
provided that:
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(i) at the time of the disposal the ratio of UK Group
Net Consolidated Total Debt to Consolidated
Annualised EBITDA of the UK Group is less than
3:1;
(ii) the full amount of the proceeds of such disposal
(after reasonable fees and expenses) are used in
prepayment and cancellation of the Facilities in
accordance with Clause 13.6 (Application of
Proceeds);
(iii) at the time of the disposal all amounts
outstanding under the Working Capital Facility
have been paid in full, and the Working Capital
Facility has been cancelled; and
(iv) the aggregate book value of assets disposed of
pursuant to this paragraph (m) shall not during
any financial year of the Parent exceed
(pound)200,000,000 (or its equivalent in other
currencies);
(n) by National Transcommunications Limited, Singapore branch,
of its assets to a newly incorporated company which is a
member of the UK Group and which acts as a holding company
for, and the operating company of, such assets; and
(o) which is specifically and separately consented to in writing
by an Instructing Group prior to such disposal being made.
"Permitted Encumbrance" means:
(a) any Encumbrance specified in Schedule 5 (Existing
Encumbrances), if the principal amount thereby secured is
not increased;
(b) any Encumbrance over or affecting any asset acquired by a
member of the UK Group after the Execution Date and subject
to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation
of the acquisition of such asset by a member of
the UK Group; and
(ii) the Financial Indebtedness secured by such
Encumbrance at all times falls within paragraph
(m) of the definition of Permitted Indebtedness;
(c) any Encumbrance over or affecting any asset of any company
which becomes a member of the UK Group after the Execution
Date, where such Encumbrance is created prior to the date on
which such company becomes a member of the UK Group, if:
(i) such Encumbrance was not created in contemplation
of the acquisition of such company; and
(ii) the Financial Indebtedness secured by such
Encumbrance at all times falls within paragraph
(i) or (m) of the definition of Permitted
Indebtedness;
(d) any netting or set-off arrangement entered into by any
member of the UK Group in the normal course of its banking
arrangements for the purpose of netting debit and credit
balances;
-26-
<page>
(e) any right of set-off or any title transfer or retention of
title arrangement entered into by any member of the UK Group
in the normal course of its trading activities on the
counterparty's standard or usual terms (where such terms
reasonably accord with the terms generally adopted in the
market to which such a trading activity relates);
(f) any lien arising by operation of law or by a contract having
a similar effect and in each case arising or entered into in
the normal course of business, if such lien is discharged
within thirty days of arising;
(g) any Encumbrance created pursuant to, arising under or
evidenced by the Security Documents or the Second Security
Documents;
(h) any Encumbrance granted by a member of the UK Group over the
shares or other interests it holds in, or over the assets
attributable to, a Project Company;
(i) any Encumbrance created by any arrangements referred to in
paragraph (e) or paragraph (f) of the definition of
Indebtedness for Borrowed Money;
(j) any Encumbrance arising pursuant to an order of attachment,
an injunction restraining the disposal of assets or any
similar legal process in each case arising in connection
with court proceedings being diligently conducted by a
member of the UK Group, in good faith;
(k) any Encumbrance over cash deposited as security for the
obligations of a member of the UK Group in respect of a
performance bond, guarantee, standby letter of credit or
similar facility entered into by such a member of the UK
Group in the ordinary course of business;
(l) any Encumbrance constituted by a rent deposit deed entered
into on arm's length terms and in the ordinary course of
business securing the obligations of a member of the UK
Group in relation to property leased to a member of the UK
Group;
(m) any Encumbrance existing at the Second Restatement Amendment
Effective Time and which relates solely to the South Herts
Refinancing Loan;
(n) any Encumbrance securing Permitted Indebtedness falling
within paragraph (m) of the definition of that term; and
(o) any Encumbrance over the shares of NTL (Triangle) LLC where
such Encumbrance is granted as security for amounts due
under the New NTL Exit Facility Agreements or any Permitted
Refinancing of the Exit Financing.
"Permitted Indebtedness" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance
Documents;
(b) in respect of Subordinated UK Group Debt;
(c) arising in relation to the implementation of the Hedging
Strategy;
-27-
<page>
(d) arising under Permitted Loans and Guarantees;
(e) arising under Secured Ancillary Facilities or in relation to
any documentary or standby letter of credit facility or
performance bond facility made available by a financial
institution on an unsecured basis provided that the
aggregate indebtedness of all members of the UK Group in
relation to such facilities and the Secured Ancillary
Facilities does not exceed (pound)40,000,000 (or its
equivalent in other currencies);
(f) falling within paragraph (e) of the definition of
Indebtedness for Borrowed Money ("Finance Lease Debt")
which, when aggregated with any other Finance Lease Debt
incurred in reliance on this paragraph (f) by each member of
the UK Group does not exceed (pound)45,000,000 (or its
equivalent in other currencies);
(g) arising in respect of Existing Performance Bonds;
(h) in respect of Permitted Overdraft Borrowings provided that
the aggregate amount of such Financial Indebtedness does not
exceed (pound)20,000,000 (or its equivalent in other
currencies);
(i) of any company which became or becomes a member of the UK
Group after the Execution Date, where such Financial
Indebtedness arose prior to the date on which such company
became or becomes a member of the UK Group; if:
(i) such Financial Indebtedness was not created in
contemplation of the acquisition of such company;
(ii) the aggregate amount of all Financial Indebtedness
falling within this paragraph (i) does not exceed
(pound)20,000,000 (or its equivalent in other
currencies); and
(iii) such Financial Indebtedness is repaid within three
months of such company becoming a member of the UK
Group;
(j) arising under the Working Capital Facility;
(k) arising in relation to either an Asset Passthrough or a
Funding Passthrough provided that any such Financial
Indebtedness is Subordinated UK Group Debt if it is owed by
the Parent to NTL UK and Assigned Debt if it is owed by a
member of the UK Group to the Parent;
(l) arising in connection with a Permitted Disposal falling
within paragraph (m) of the definition of Permitted Disposal
provided that such Financial Indebtedness shall not exceed
the lesser of:
(i) (pound)20,000,000 (or its equivalent in other
currencies); and
(ii) an amount equal to 10 per cent. of the disposal
proceeds received by the Parent or, as the case
may be, other member of the UK Group in connection
with such Permitted Disposal; and
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<page>
(m) not falling within paragraphs (a) to (l) above, of any
members of the UK Group provided that the aggregate amount
of such Financial Indebtedness does not exceed
(pound)20,000,000 (or its equivalent in other currencies)
and, in the case of any such Financial Indebtedness (other
than where such Financial Indebtedness arises in respect of
any performance bond facility or any other facility of a
similar type) which is incurred after the Second Restatement
Amendment Effective Time, the final maturity date of such
Financial Indebtedness is a date no earlier than 1 March
2008.
"Permitted Investments" means:
(a) any debt securities which are readily marketable and which
are rated at least "AA" by Standard & Poor's Corporation or
"Aa2" by Moody's Investors Services, Inc.;
(b) certificates of deposit and deposits with banks and bankers
acceptances in each case with a bank rated at least A- (or
the equivalent thereof) by Moody's Investors Services, Inc.
or Standard & Poor's Corporation; and
(c) commercial paper rated at least A-1 (or the equivalent
thereof) by Moody's Investors Services, Inc. or Standard &
Poor's Corporation.
"Permitted Loans and Guarantees" means:
(a) trade credit or guarantees or indemnities granted in the
ordinary course of business on usual and customary terms;
(b) loans made by any member of the UK Group to its employees
either (i) in the ordinary course of its employees'
employment or (ii) to fund the exercise of share options by
its employees;
(c) loans made by one Obligor (other than the Parent) to another
Obligor;
(d) loans made by the Parent to other Obligors where the
indebtedness in respect of such constitutes Assigned Debt;
(e) loans made by a member of the UK Group pursuant to either an
Asset Passthrough or a Funding Passthrough;
(f) loans made by a member of the UK Group which is not an
Obligor to any other member of the UK Group;
(g) loans made by a member of the UK Group to a member of the
Group, where the proceeds of such a loan are (whether
directly or indirectly) used to fund a Permitted Payment in
accordance with this Agreement (including, but not limited
to, the timing requirements set out in the definition of
Permitted Payments);
(h) credit granted by any member of the UK Group to a member of
the Group, where the indebtedness outstanding thereunder
relates to Intra-Group Services
-29-
<page>
provided that where such credit relates to services falling
within paragraphs (b) or (c) of the definition of
Intra-Group Services:
(i) the settlement of all such credit estimated by the
Parent to be owed by members of the Group which
are not Obligors shall take place no less
frequently than on a monthly basis; and
(ii) if, on the first Business Day falling after the
fourteenth day of each calendar month, the
aggregate amount of all such credit owed by
members of the Group which are not Obligors is
estimated by the Parent to be in excess of
(pound)25,000,000 (or its equivalent in other
currencies) all such credit shall be promptly
settled at such time provided that any overpayment
or underpayment arising as a result of the
settlement of all such credit may be returned to
the overpaying party or paid by the underpaying
party;
(i) the South Herts Refinancing Loan;
(j) the Cable & Wireless Loan or other loans arising in
connection with the Transaction Agreement;
(k) loans made, credit granted and guarantees or indemnities
given in an aggregate amount not exceeding (pound)200,000;
(l) deferred consideration in an amount of up to
(pound)52,500,000 owed to NTL (CWC) Limited in relation to
the disposal of NTL Telephone Equipment Limited; and
(m) any guarantee or indemnity given by a member of the UK Group
in respect of any Permitted Indebtedness, or other
obligation not restricted by the terms of the Finance
Documents, of another member of the UK Group.
"Permitted Overdraft Borrowings" means Financial Indebtedness in
respect of an Overdraft Facility if such Financial Indebtedness:
(a) has been incurred solely for short term cash management
purposes in the ordinary course of business; and
(b) is fully repaid within three Business Days of it having been
incurred (from available funds other than Permitted
Overdraft Borrowings).
"Permitted Payment" means (i) a payment of interest on, or a
repayment of the principal amount of, Assigned Debt to the extent
that such payment or repayment is required by the Parent to meet its
interest payment obligations under the Working Capital Facility and
that such payment or repayment is not restricted pursuant to the
definition of Restricted Payment and (ii) a Restricted Payment which
is:
(a) made, at any time, to fund the actual cash payment
obligations (other than the repayment or prepayment of
principal) of any member of the Covenant Group in relation
to:
(i) the Exit Financing or any Permitted Refinancing of
the Exit Financing;
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<page>
(ii) indebtedness incurred by a member of the Covenant
Group to refinance the Working Capital Facility;
(iii) indebtedness incurred by a member of the Covenant
Group the proceeds of which have been contributed
to the Parent by way of Subordinated Funding after
the Second Restatement Amendment Effective Time in
accordance with the provisions of Clause 22.16
(Mandatory Contribution);
(iv) indebtedness incurred by any member of the
Covenant Group the proceeds of which have been
voluntarily contributed to the Parent by way of
Subordinated Funding after the Second Restatement
Amendment Effective Time (being, for the avoidance
of doubt, indebtedness which does not fall within
paragraph (iii) above);
(v) any indebtedness incurred by any member of the
Covenant Group in order to refinance the Diamond
Holdings Notes or the Triangle Notes provided that
prior to any such Permitted Payment being made the
Banks shall have been granted a guarantee from
each member of the NTL Diamond Sub-Group and/or
(as the case may be) each member of the NTL
Triangle Sub-Group and the Security Trustee (as
trustee for the Banks) shall have been granted a
first ranking security interest over: (a) all the
assets and undertakings of each member of the NTL
Diamond Sub-Group and/or (as the case may be) each
member of the NTL Triangle Sub-Group; and (b) all
the issued shares of each member of the NTL
Diamond Sub-Group and/or (as the case may be) each
member of the NTL Triangle Sub-Group;
(vi) any indebtedness incurred by any member of the
Covenant Group after the Second Restatement
Amendment Effective Time, subject always to
compliance with the Group Net Consolidated Total
Debt to Consolidated Annualised EBITDA covenant
set out in Clause 21.2 (Group Financial
Condition); or
(vii) any Hedging Agreement entered into by New Holdco
or New NTL under which New Holdco or, as the case
may be, New NTL enters into currency or interest
swaps in relation to Permitted Covenant Group
Indebtedness;
which, in each case, have fallen due or will fall due within
five Business Days of such Permitted Payment being made
provided that the cash portion of any interest payable on
indebtedness which may be funded by a Permitted Payment
under sub-paragraph (iii), (iv), (v) or (vi) above shall not
be more than 6 per cent. in excess of the average yield of
the index of securities issued by US cable television
companies included in the Applicable High Yield Index
(measured at the time the indebtedness is incurred);
(b) made, at any time, to fund the payment of corporate expenses
(including taxes) by any member of the Covenant Group (which
for the avoidance of doubt shall not include any member of
the NTL Diamond Sub-Group or any member of the NTL Triangle
Sub-Group) the amount of such payments during each financial
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year of the Parent being no greater than (pound)10,000,000
(or its equivalent in other currencies);
(c) made pursuant to an Asset Passthrough and funded solely from
cash generated by entities outside of the UK Group or made
available pursuant to a Funding Passthrough and funded
solely from cash generated by entities outside of the UK
Group;
(d) deposited in a Charged Account and:
(i) represents the proceeds of a payment of interest
on Subordinated UK Group Debt, which within two
Business Days of receipt by NTL UK is paid (x) by
NTL UK to New Holdco and within two Business Days
of receipt by New Holdco is paid by New Holdco to
New NTL or (y) by NTL UK to New Holdco, in each
case in accordance with arrangements the Group has
with the Inland Revenue; and
(ii) in each case referred to at paragraph (i) above,
is reinvested in the Parent within ten Business
Days of such Restricted Payment being made, such
an investment being by way of Subordinated
Funding;
(e) made out of the proceeds of an Asset Adjustment Payment
referred to in paragraph (b) of the definition thereof
received by a member of the UK Group;
(f) a repayment of Assigned Debt to the Parent provided that:
(i) an amount equal to the repaid Assigned Debt is
re-invested by the Parent in a member of the UK
Group subject to or potentially liable to US
Federal Income Taxes or whose members or
shareholders are liable or potentially liable to
US Federal Income Taxes in respect of its net
income or profits, by way of Assigned Debt,
immediately after such Restricted Payment; and
(ii) the aggregate principal amount of such repaid and
re-invested Assigned Debt on any day does not
exceed (pound)25,000,000 (or its equivalent in
other currencies); or
(g) a repayment of Assigned Debt to the Parent, to the extent
that the amounts which constituted such Assigned Debt are in
accordance with the terms of the Working Capital Facility
Agreement, elected to be treated as "Capital Events
Proceeds" and, in each case, are to be immediately applied
in prepayment and cancellation of the Working Capital
Facility in accordance with the terms of the Working Capital
Facility Agreement,
provided always that any payment (under any of the above paragraphs)
shall only be permitted if and to the extent that no Event of Default
has occurred (and is continuing) or would result from the making of
such payment and provided further that Permitted Payments under
paragraphs (a) or (b) above may only be made, if and to the extent
that, the aggregate cash resources (including any undrawn available
facilities) of all members
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of the Covenant Group would, in the absence of the proposed Permitted
Payment, fall below (pound)150,000,000 (or its equivalent in other
currencies).
For the avoidance of doubt and notwithstanding any provisions to the
contrary in any Subordination Agreement, no Permitted Payments may be
made in respect of any indebtedness which is Subordinated UK Group
Debt outstanding at the Second Restatement Amendment Effective Time
other than as a means of facilitating any of the Permitted Payments
at paragraphs (a) to (g) above and subject at all times to the
limitations at paragraphs (a) to (g) above.
"Permitted Refinancing" means any refinancing by any member of the
Covenant Group of:
(a) the Working Capital Facility;
(b) the Exit Financing (which, for the avoidance of doubt, may
be by way of the issuance of equity or the raising of debt
and may take place in one or more tranches);
(c) the Diamond Holdings Notes; and
(d) the Triangle Notes,
provided that, in each case, the final maturity date of any
indebtedness incurred in respect of such refinancing is a date no
earlier than the date falling six months after the Term Final
Maturity Date.
"Plan" means the Debtors' second amended joint plan of reorganisation
under Chapter 11, dated 15 July 2002 together with all exhibits
thereto, in each case as amended by a confirmation order in respect
thereof dated 5 September 2002.
"Plan Effective Date" shall bear the meaning given to the term
"Effective Date" in the Plan.
"Potential Event of Default" means any event which would become (with
the passage of time, the giving of notice, the making of any
determination hereunder or any combination thereof) an Event of
Default.
"Pre-Novation Borrower" means NTL Business Limited.
"Prepayment Escrow Account" means an account, bearing interest at a
commercially reasonable rate in relation to the given circumstances,
held with the Agent (or such other financial institution reasonably
acceptable to the Agent) in the name of the Parent over which the
Parent has granted first ranking security in favour of the Security
Trustee and into which sums are deposited in accordance with Clause
13 (Mandatory Prepayment).
"Prescribed Accounting Period" means a prescribed accounting period
as defined in the Value Added Tax Regulations 1995, as applicable to
the relevant member of the UK Group.
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"Principal Properties" means the properties which are specified in
Schedule 13 (UK Group Principal Properties).
"Project Company" means a subsidiary of a company (or a person in
which such company has an interest) which has a special purpose and
whose creditors have no recourse to any member of the UK Group in
respect of any Financial Indebtedness of that subsidiary or person
(as the case may be) or any of such subsidiary's or person's
subsidiaries (other than recourse to such member of the UK Group who
has granted security over its shares or other interest in such a
Project Company beneficially owned by it provided that such recourse
is limited to the realisation of such security).
"Proportion" means, in relation to a Bank at any time, the proportion
which its Commitment bears to the Total Commitments.
"Pushdown Date" means 21 February 2001.
"Qualifying Lender" means:
(a) a Bank which is (on the date a payment of interest falls due
under a Finance Document) beneficially entitled to and
within the charge to United Kingdom corporation tax in
respect of that payment provided that the advance in respect
of which the payment is made was made by a bank for the
purposes of section 349 of ICTA at the time the advance was
made;
(b) a Treaty Lender; or
(c) a Bank, being a Term Bank, is a company which is (on the
date a payment of interest falls due under a Finance
Document) beneficially entitled to the payment and is
either:
(i) resident in the United Kingdom; or
(ii) not being so resident, carries on a trade in the
United Kingdom through a branch or agency and the
payment falls to be brought into account in
computing such Term Bank's chargeable profits (as
that term is defined in section 11(2) of ICTA),
and in respect of such Bank within this paragraph (c), the
United Kingdom Inland Revenue has not issued a direction
that Section 349A(1) of ICTA does not apply to the relevant
payment.
"Quarter Date" has the meaning given to it in Clause 21.3 (Financial
Definitions).
"Quotation Date" means, in relation to any period for which an
interest rate is to be determined under the Finance Documents, the
day on which quotations would ordinarily be given by prime banks in
the London Interbank Market for deposits in the currency of the
relevant sum for delivery on the first day of that period, provided
that, if, for any such period, quotations would ordinarily be given
on more than one date, the Quotation Date for that period shall be
the last of those dates.
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<page>
"Reference Banks" means the principal London offices of Citibank
N.A., JPMorgan Chase Bank and The Royal Bank of Scotland plc or such
other bank or banks as may from time to time be agreed between the
Parent and the Agent acting on the instructions of an Instructing
Group.
"Registered Exchange Offer" means the offer by New NTL pursuant to
the exchange and registration rights agreement referred to at
paragraph (c) of the definition of New NTL Exit Facility Agreements
to certain holders of the senior secured notes referred to in the
definition of New NTL Exit Facility, to issue and deliver to such
holders, in exchange for such senior secured notes, a like aggregate
principal amount at maturity of exchange notes registered under the
Securities Act of 1933 (as amended).
"Relevant Period" has the meaning given to it in Clause 21.3
(Financial Definitions).
"Repayment Date" means, in relation to any Revolving Advance, the
last day of the Term thereof.
"Repeated Representations" means each of the representations set out
in Clause 19.4 (Status and Due Authorisation) to Clause 19.15
(Existing Group Indebtedness).
"Report on Title" means a report on title given by counsel to an
Additional Obligor, substantially in the form set out in Schedule 14
(Form of Report on Title).
"Reporting Accountants" means the accountancy firm engaged by the
Agent on behalf of the Banks to advise the Banks in connection with
matters relating to, inter alia, the financial position and
performance of the Group and compliance with certain obligations set
out in this Agreement which, as at the Second Restatement Amendment
Effective Date, is PricewaterhouseCoopers.
"Reporting Accountants Mandate Letter" means the mandate letter dated
on or about the date of the Second Restatement Amendment Agreement
from PricewaterhouseCoopers as Reporting Accountants to the Agent and
the Working Capital Facility Agent and countersigned by each of the
Agent, the Working Capital Facility Agent, New NTL, the Parent and
the Post-Novation Borrower.
"Required Monthly Information" means, the information set out at
Appendix B of the Reporting Accountants Mandate Letter as being
required to be delivered by New NTL, the Parent and/or the
Post-Novation Borrower to the Reporting Accountants to enable
preparation of the Monthly Performance Update Reports, including:
(a) a report on 13 week short-term cash flow forecast for the UK
Group, such report to include:
(i) forecast cash receipts by month;
(ii) forecast debtor days;
(iii) forecast supplier payments and assumptions
regarding the unwinding of the opening accounts
payable ledger and accruals balances, as well as
assumed payment terms on new purchases; and
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(iv) details of other cash flow items and material
assumptions; and
(b) a monthly management account pack for the Extended UK Group,
such management account pack to include:
(i) monthly and year-to-date revenues, gross margin
and EBITDA for the Extended UK Group and by
division compared to budget;
(ii) details of any exceptional costs;
(iii) monthly Capital Expenditure spend and details of
material projects;
(iv) a summary net cash flow statement and aggregated
balance sheet for the Extended UK Group; and
(v) a commentary on monthly performance.
"Reservations" means:
(a) the principle that equitable remedies are remedies which may
be granted or refused at the discretion of the court, the
limitation of enforcement by laws relating to bankruptcy,
insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws generally affecting
the rights of creditors, the time barring of claims under
any applicable law, the possibility that an undertaking to
assume liability for or to indemnify against non-payment of
any stamp duty or other tax may be void, defences of set-off
or counterclaim and similar principles;
(b) anything analogous to any of the matters set out in
paragraph (a) above under any laws of any applicable
jurisdiction;
(c) the reservations in or anything disclosed by any of the
legal opinions delivered pursuant to Clause 2.4 (Initial
Conditions Precedent) and Schedule 3 (Initial Revolving Bank
Conditions Precedent), Schedule 9 (Additional Conditions
Precedent) or clause 2.1 (Conditions Precedent) of the First
Restatement Amendment Agreement or clause 2 (Restatement) of
the Second Restatement Amendment Agreement; and
(d) any circumstance arising through a failure to obtain any of
the consents referred to in 22.15 (Consents and Properties)
on or before the execution of the relevant Security Document
or Second Security Document.
"Resignation Notice" means a notice substantially in the form set out
in Schedule 10 (Form of Resignation Notice).
"Restricted Group" means each member of the Group, other than each
subsidiary of New NTL who is:
(a) a member of the UK Group; and
(b) a Guarantor.
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"Restricted Payment" means any (a) payment by a member of the UK
Group to a member of the Restricted Group by way of dividend or other
distribution, (b) payment of interest on any Assigned Debt (other
than to the extent required by the Parent to meet its interest
payment obligations under the Working Capital Facility), (c)
repayment of the principal amount of any Assigned Debt (other than to
the extent required by the Parent to meet its interest payment
obligations under the Working Capital Facility provided that the
Parent shall have first applied all interest payable in respect of
Assigned Debt towards Permitted Payments), (d) payment of interest on
any Subordinated UK Group Debt, (e) repayment of the principal amount
of any Subordinated UK Group Debt and (f) any other payment (save to
the extent such payment is excluded from paragraphs (b) or (c) above)
in respect of any Assigned Debt or Subordinated UK Group Debt.
"Revolving Advance" means an advance made or to be made by the
Revolving Banks under the Revolving Facility.
"Revolving Bank" means any:
(a) financial institution named in Part A (Revolving Banks) of
Schedule 1 (The Banks); or
(b) financial institution which has become a party hereto as a
Revolving Bank in accordance with Clause 34.4 (Assignments
by Banks) or Clause 34.5 (Transfers by Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"Revolving Commitment" means, in relation to a Revolving Bank at any
time and save as otherwise provided herein, the amount set opposite
its name under the heading "Revolving Commitment" in Part A
(Revolving Banks) of Schedule 1 (The Banks). The Revolving
Commitments of Morgan Stanley Dean Witter Bank Limited and Morgan
Stanley Senior Funding, Inc. shall be determined in accordance with
Clause 34.10 (Morgan Stanley Commitment).
"Revolving Facility" means the revolving loan facility granted to the
Borrowers in this Agreement in an aggregate principal amount of
(pound)2,584,800,000.
"Revolving Instructing Group" means, at any time, a Bank or Banks
whose Revolving Commitments amount (or, if each Bank's Revolving
Commitment has been reduced to zero, did immediately before such
reduction to zero, amount) in aggregate to more than sixty-six and
two thirds per cent. of the Total Revolving Commitments.
"Revolving Loan" means, at any time, the aggregate principal amount
of the outstanding Revolving Advances at such time.
"Revolving Margin" means the percentage rate per annum determined in
accordance with Clause 4.3 (Revolving Margin Ratchet) to Clause 4.5
(Revolving Default Margin).
"Revolving Termination Date" means 30 September 2005.
"Rights Offerings" means the Equity Rights Offering and the
Noteholder Election Option.
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"Rollover Advance" means a Revolving Advance which is used to
refinance a maturing Revolving Advance and which is the same amount
as such maturing Revolving Advance and is to be drawn by the Borrower
of such maturing Revolving Advance on the day such maturing Revolving
Advance is to be repaid.
"Scheme" means the scheme of arrangement under Section 425 in
relation to the Target.
"Scheme Effective Date" means 12 May 2000.
"Scottish Share Pledge" means the share pledge, dated 21 February
2001, between the Parent, NTL Group Limited and NTL Glasgow as
pledgors and the Security Trustee, creating first ranking security
over the pledgors' rights and interests in relation to certain shares
and other assets specified therein.
"Second Caxton Sale" means the transfer of Caxton by CWC Holdings to
Cable & Wireless (UK) Holdings plc in part satisfaction of the
reduction in the share capital of CWC Holdings occurring prior to the
Acquisition, such reduction being confirmed by the court in
accordance with section 135 of the Companies Act, 1985.
"Second Debenture" means the Debenture dated 27 September 2001
granted by the Chargors (as listed and defined therein) in favour of
the Second Security Trustee, to hold for the benefit of the Term
Banks, the Agent and itself, creating second ranking (ranking only
behind the first ranking security created pursuant to the Security
Documents) fixed and floating charges over substantially the whole of
the assets and undertaking of such Chargors, in favour of the Second
Security Trustee to hold for the benefit of the Term Banks, the Agent
and itself.
"Second Indenture of Mortgage" means the second ranking (ranking only
behind the first ranking security created pursuant to the Security
Documents) fixed security over certain properties situated in
Northern Ireland duly executed and delivered by National
Transcommunications Limited and CableTel Northern Ireland Limited in
favour of the Second Security Trustee to hold for the benefit of the
Term Banks, the Agent and itself.
"Second NTL UK Intra-Group Loan Assignment" means the second ranking
(ranking only behind the first ranking security created pursuant to
the Security Documents) assignment, dated 27 September 2001, executed
by NTL UK in favour of the Second Security Trustee to hold for the
benefit of the Term Banks, the Agent and itself, assigning NTL UK's
rights in respect of loans made, or to be made, by it to members of
the UK Group.
"Second Parent Intra-Group Loan Assignment" means the second ranking
(ranking only behind the first ranking security created pursuant to
the Security Documents) assignment, dated 27 September 2001, granted
by the Parent in favour of the Second Security Trustee to hold for
the benefit of the Term Banks, the Agent and itself, assigning the
Parent's rights in respect of loans made or to be made by it to other
members of the UK Group. For the avoidance of doubt:
(a) the reference to paragraphs (a) to (e), (h) or (j) of the
definition of Permitted Payment in paragraph (a) of the
definition of Permitted Loan Payment in the Second Parent
Intra-Group Loan Assignment shall, after the Second
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Restatement Amendment Effective Date, be construed as a
reference to paragraphs (a) to (c) or (e) of the definition
of Permitted Payment; and
(b) the reference to paragraph (f) of the definition of
Permitted Payment in paragraph (b) of the definition of
Permitted Loan Payment in the Second Parent Intra-Group Loan
Assignment shall, after the Second Restatement Amendment
Effective Date, be construed as a reference to paragraph (d)
of the definition of Permitted Payment.
"Second Pledge Agreement" means the pledge agreement, dated 27
September 2001, granted by NTL UK CableComms Holdings Inc., NTL
CableComms Group plc, North CableComms Management Inc., North
CableComms Holdings Inc., Winston Investors LLC, NTL Solent Company,
NTL Sussex Company, NTL Surrey Company, NTL Bromley Company, NTL
Chartwell Holdings Inc., NTL Wessex Company, NTL CableComms Group
Inc., South CableComms Management Inc., South CableComms Holdings
Inc., Chartwell Investors LP, NTL Winston Holdings Inc., NTL Winston
Holdings Limited, NTL Chartwell Holdings 2, Inc. and NTL Chartwell
Holdings Limited, creating second ranking (ranking only behind the
first ranking security created pursuant to the Security Documents)
security over their rights and interests in relation to certain
shares as specified therein, in favour of the Second Security Trustee
to hold for the benefit of the Term Banks, the Agent and itself.
"Second Restatement Amendment Agreement" means the amendment
agreement dated 9 January 2003 between the parties hereto which
amends this Agreement by way of a restatement of this Agreement.
"Second Restatement Amendment Effective Date" means the date on which
the Second Restatement Amendment Effective Time occurs.
"Second Restatement Amendment Effective Time" means the "Effective
Time" as such term is defined in the Second Restatement Amendment
Agreement.
"Second Restatement Amendment Financial Statements" means:
(a) in relation to New NTL, its annual report on Form 10-K for
its financial year ended 31 December 2001; and
(b) in relation to the Parent, the audited consolidated
financial statements for the UK Group for the financial year
ended 31 December 2001.
"Second Security" means the security from time to time constituted by
or pursuant to the Second Security Documents and the guarantees
provided hereunder.
"Second Security Agreement" means the security agreement, dated 27
September 2001, granted by NNS UK Holdings 1 Inc., NNS UK Holdings 2
Inc., North CableComms Holdings Inc., North CableComms Management
Inc., NTL Bromley Company, NTL CableComms Group Inc., NTL Chartwell
Holdings Inc., NTL Chartwell Holdings 2 Inc., NTL North CableComms
Holdings Inc., NTL North CableComms Management Inc., NTL Programming
Subsidiary Company, NTL Solent Company, NTL South CableComms Holdings
Inc., NTL South CableComms Management Inc., NTL Surrey
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Company, NTL Sussex Company, NTL UK CableComms Holdings Inc., NTL
Wessex Company, NTL Winston Holdings Inc., NTL Wirral Company, South
CableComms Holdings Inc., South CableComms Management Inc., North
CableComms LLC, South CableComms LLC and Winston Investors LLC,
creating a second ranking (ranking only behind the first ranking
security created pursuant to the Security Documents) continuing
security interest in relation to certain assets as specified therein,
in favour of the Second Security Trustee to hold for the benefit of
the Term Banks, the Agent and itself.
"Second Security Documents" means the Second Debenture, the Second
Indenture of Mortgage, the Second NTL UK Intra-Group Loan Assignment,
the Second Parent Intra-Group Loan Assignment, the Second Security
Agreement, the Second Share Charge Agreement, the Second Share
Pledge, the Second Standard Securities and the Second Pledge
Agreement.
"Second Security Trust Agreement" means the security trust agreement
dated 26 September 2001 entered into in connection with the Term
Facility between, inter alia, the Second Security Trustee, the Agent
and the Term Banks.
"Second Share Charge Agreement" means the second ranking (ranking
only behind the first ranking security created pursuant to the
Security Documents) share charge agreement dated 27 September 2001
executed by North CableComms LLC, NTL Bromley Company, NTL North
CableComms Holdings Inc., NTL North CableComms Management Inc., NTL
Solent Company, NTL South CableComms Holdings Inc., NTL South
CableComms Management Inc., NTL Surrey Company, NTL Sussex Company,
NTL UK CableComms Holdings Inc., NTL Wessex Company, NTL Wirral
Company and South CableComms LLC, charging their rights and interests
in certain shares as specified therein in favour of the Second
Security Trustee to hold for the benefit of the Term Banks, the Agent
and itself.
"Second Share Pledge" means the share pledge dated 27 September 2001
executed by the Parent, NTL Group Limited and NTL Glasgow creating
second ranking (ranking only behind the first ranking security
created pursuant to the Security Documents) security over their
rights and interests in relation to certain shares in favour of the
Second Security Trustee to hold for the benefit of the Term Banks,
the Agent and itself.
"Second Standard Securities" means the second ranking (ranking only
behind the first ranking security created pursuant to the Security
Documents), fixed security over certain properties situated in
Scotland (ranking second in priority to the fixed security created
pursuant to the Standard Securities) dated 27 September 2001 executed
and delivered by CableTel (UK) Limited and National
Transcommunications Limited in favour of the Second Security Trustee
to hold for the benefit of the Term Banks, the Agent and itself.
"Section 425" means section 425 of the Companies Act 1985.
"Secured Ancillary Facilities" means any bank facilities made
available to members of the UK Group (on normal commercial terms)
pursuant to documentation in the agreed form and where the providers
of such facilities have each acceded to the Security Trust Agreement
as a Secured Ancillary Facilities Provider provided that the
aggregate
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indebtedness of all members of the UK Group in respect of Secured
Ancillary Facilities at no time exceeds (pound)40,000,000 (or its
equivalent).
"Secured Ancillary Facilities Provider" means a financial institution
which has executed a Secured Party Accession Undertaking (as defined
in the Security Trust Agreement) and delivered such to the Security
Trustee, thereby allowing it to share in the Security.
"Secured Hedging Agreement" means a Hedging Agreement entered into
between a member of the UK Group and a Hedge Counterparty for the
purpose of hedging the payment obligations of the Obligors under the
Finance Documents.
"Security" means the security from time to time constituted by or
pursuant to the Security Documents and the guarantees provided
hereunder.
"Security Documents" means the documents constituting the UK Group
Security and the New NTL Security Over Cash Agreement, the New Holdco
Security over Cash Agreement and any other agreement or document
(other than the Second Security Documents) pursuant to which any
member of the Group creates any security interest in favour of the
Finance Parties (or the Security Trustee on their behalf) for all or
any part of the obligations of the Obligors or any of them under any
of the Finance Documents.
"Security Trust Agreement" means the security trust agreement dated
30 May 2000 entered into in connection herewith between, inter alia,
the Security Trustee, the Agent and the Banks.
"Series A Warrants", and each defined term referred to in the
definition thereof, has the meaning ascribed thereto in Appendix A
(The Plan - Article I - Definitions, Rules of Interpretation and
Computation of Time).
"Share Charge Agreement" means the share charge agreement, dated 21
February 2001, between certain members of the UK Group as chargors
and the Security Trustee creating a first ranking charge over the
chargors' rights and interests in certain shares as specified
therein.
"South Herts Facility" means the facility agreement dated 18 April
1995 between, among others, Cable & Wireless Communications (South
Hertfordshire) Limited (now known as NTL (South Hertfordshire)
Limited) and Bank of America, N.A.
"South Herts Refinancing Loan" means a loan of up to
(pound)17,100,000 from the Target to Cable & Wireless Communications
(South Hertfordshire) Limited (now known as NTL (South Hertfordshire
Limited) where:
(a) such a loan is used by Cable & Wireless Communications
(South Hertfordshire) Limited (now known as NTL (South
Hertfordshire) Limited) to refinance its existing
outstandings under the South Herts Facility; and
(b) Cable & Wireless Communications (South Hertfordshire)
Limited (now known as NTL (South Hertfordshire) Limited)
provides security in respect of its
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obligations under such a loan, substantially similar to the
security provided by it in respect of the South Herts
Facility.
"Specified Quarter Date" means 30 June or 31 December, as the case
may be.
"Standard Securities" means the first ranking or, in the case of the
Second Security Documents, second ranking (ranking only behind the
first ranking security created pursuant to the Security Documents)
fixed security over certain real or heritable property located in
Scotland given in favour of the Security Trustee or the Second
Security Trustee.
"Standard Security Documents" means:
(a) the first ranking fixed security over certain property
situated in Scotland, dated 12 April 2001, granted by
CableTel (UK) Limited in favour of the Security Trustee;
(b) the first ranking fixed security over certain property
situated in North Lanarkshire, Scotland, dated 21 February
2001, granted by National Transcommunications Limited in
favour of the Security Trustee; and
(c) the first ranking fixed security over certain property
situated in Edinburgh, Scotland, dated 21 February 2001,
granted by National Transcommunications Limited in favour of
the Security Trustee.
"Statutory Requirements" means any applicable provision or
requirement of any Act of Parliament including the Telecommunications
Act 1984, the Cable and Broadcasting Act 1984 and the Cable and the
Broadcasting Act 1990 or any instrument, rule or order made under any
Act of Parliament or any regulation or by-law of any local or other
competent authority or any statutory undertaking or statutory company
which has jurisdiction in relation to the carrying out, use,
occupation, operation of the properties or the businesses of any
member of the UK Group carried out thereon.
"Subordinated Funding" means:
(a) the subscription by New NTL or any member of the Covenant
Group, for new equity capital of the Parent; and
(b) Subordinated UK Group Debt.
"Subordinated UK Group Debt" means any loan made by NTL UK to the
Parent, where:
(a) such a loan has been subordinated to the Loan pursuant to
the NTL UK Revolving Bank Subordination Agreement or the NTL
UK Term Bank Subordination Agreement; and
(b) NTL UK has assigned its rights in respect of such a loan to
the Security Trustee and the Second Security Trustee as
security for the obligations of the Obligors under the
Finance Documents pursuant to the NTL UK Intra-Group Loan
Assignment and the Second NTL UK Intra-Group Loan
Assignment.
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"Subordination Agreement" means each subordination agreement in the
agreed form executed or to be executed by any member of the Covenant
Group in favour of the Security Trustee, or executed by a member of
the Covenant Group in favour of the Second Security Trustee, pursuant
to which the indebtedness identified therein owed by any member of
the UK Group to such member of the Covenant Group is subordinated to
the obligations of the Obligors under the Finance Documents.
"Supplemental Mortgage" means the mortgage, dated 26 June 2001,
between NTL Communication Services Limited and the Security Trustee,
creating first fixed security in relation to Volvo House,
Southampton.
"Syndication Date" means 4 September 2000.
"Target" means Cable & Wireless Communications Limited (company
number 3288998) (now known as NTL (CWC) Limited).
"Target Group Excluded Subsidiaries" means:
(a) NTL (South Hertfordshire) Limited, formerly known as Cable &
Wireless Communications (South Hertfordshire) Limited, and
its subsidiaries;
(b) Fawnspring Limited;
(c) any company which, at the relevant time, was a subsidiary of
CWC Holdings which at such time was a Dormant Subsidiary and
which (i) had assets with an aggregate value of
(pound)10,000 or less and (ii) did not hold a Licence; and
(d) any company which, at the relevant time, was a subsidiary of
CWC Holdings which at such time was a Project Company.
"Target Group" means CWC Holdings, Target and its direct and indirect
subsidiaries (other than such of the Target Group Excluded
Subsidiaries which were subsidiaries of the Target immediately after
the Second Caxton Sale) immediately after the Second Caxton Sale,
such comprising the CWC ConsumerCo Business.
"Term" means, in relation to any Revolving Advance, save as otherwise
provided herein, the period for which such Revolving Advance is
borrowed, as specified in the Notice of Drawdown relating thereto.
"Term Advance" means the advance made by the Term Banks under the
Term Facility and each portion thereof resulting from a division
provided for in Clause 6.4 (Division of Term Advances) or a
consolidation provided for in Clause 6.3 (Consolidation of Term
Advances), as the same may be reduced by payment in accordance with
Clause 11 (Repayment of the Term Facility), Clause 12 (Cancellation
and Prepayment), Clause 13 (Mandatory Prepayment) or Clause 17
(Illegality) or any other provision of this Agreement.
"Term Bank" means any company, bank or financial institution:
(a) named in Part B (Term Banks) of Schedule 1 (The Banks); or
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(b) which has become a party hereto as a Term Bank in accordance
with Clause 34.4 (Assignments by Banks) or Clause 34.5
(Transfers by Banks),
and which has not ceased to be a party hereto in accordance
with the terms hereof.
"Term Commitment" means, in relation to a Term Bank at any time and
save as otherwise provided herein, the amount set opposite its name
under the heading "Term Commitment" in Part B (Term Banks) of
Schedule 1 (The Banks).
"Term Effective Date" means the date referred to in clause 2.1
(Conditions Precedent) of the First Restatement Amendment Agreement,
being 26 September 2001.
"Term Execution Date" means the date of the First Restatement
Amendment Agreement.
"Term Facility" means the term loan facility granted to the
Post-Novation Borrower in this Agreement in an aggregate principal
amount of (pound)200,000,000 subject to reduction as herein provided.
"Term Final Maturity Date" means 30 September 2007.
"Term Instructing Group" means a Term Bank or Term Banks to whom in
aggregate more than sixty-six and two thirds per cent. of the amount
of the Term Loan is (or, immediately prior to its repayment, was
then) owed.
"Term Loan" means, at any time, the aggregate principal amount of the
outstanding Term Advances at such time.
"Term Margin" means 5.5 per cent. per annum.
"Term Prepayment Amount" means, at any time:
(a) prior to the first anniversary of the Term Effective Date,
two per cent. of the portion of the Term Loan prepaid at
such time;
(b) during the period from the first anniversary of the Term
Effective Date to (but excluding) the second anniversary of
the Term Effective Date, 1.5 per cent. of the portion of the
Term Loan prepaid at such time; and
(c) during the period from the second anniversary of the Term
Effective Date to (and including) the third anniversary of
the Term Effective Date, one per cent. of the portion of the
Term Loan prepaid at such time.
"Term Repayment Date" means each of the dates specified in Clause
11.1 (Term Repayment Instalments), provided that if such day is not a
Business Day, the Term Repayment Date shall be the next succeeding
Business Day.
"Total Commitments" means the aggregate of the Total Revolving
Commitments and the Total Term Commitments.
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"Total Revolving Commitments" means, at any time, the aggregate of
the Revolving Banks' Revolving Commitments at such time.
"Total Term Commitments" means, at any time, the aggregate of the
Term Banks' Term Commitments at such time.
"Transaction Agreement" means the restated agreement dated as of 26
July 1999 between Bell Atlantic Corporation, Cable & Wireless, the
Target and Euroco (as amended from time to time before the Second
Restatement Amendment Effective Date, and as amended from time to
time after the Second Restatement Amendment Effective Date and
notified to the Agent).
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 2 (Form of Transfer Certificate) or in such other
form as may be agreed between the Parent and the Agent signed by a
Bank and a Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee
of all or a part of such Bank's rights, benefits and
obligations under the Finance Documents upon and subject to
the terms and conditions set out in Clause 34.3 (Assignment
and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it
will assume as a result of delivery of such certificate to
the Agent as contemplated in Clause 34.5 (Transfers by
Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the
date for the making of the transfer as specified in such Transfer
Certificate.
"Transferee" means a person to which a Bank seeks to transfer by
novation all or part of such Bank's rights, benefits and obligations
under the Finance Documents.
"Treaty Lender" means a Bank which:
(a) is treated as a resident of a Treaty State for the purposes
of the Treaty; and
(b) does not carry on a business in the United Kingdom through a
permanent establishment with which that Bank's participation
in the Loan is effectively connected,
provided that in the case of each Bank which is an Additional Finance
Provider, unless the Parent otherwise agrees, either such Bank has:
(a) provided to the appropriate department of the UK Inland
Revenue a correct and complete claim for that payment to be
made without withholding or deduction for and on account of
tax under the double taxation agreement which claim has been
certified by the relevant non-UK tax authority as applicable
under the relevant double taxation agreement; or
(b) complied with such other arrangement as may be agreed
between the Parent (acting reasonably) and such Bank.
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"Treaty on European Union" means the Treaty of Rome of 25 March 1957,
as amended by the Single European Act 1986 and the Maastricht Treaty
(which was signed at Maastricht on 7 February 1992 and came into
force on 1 November 1993).
"Treaty State" means a jurisdiction having a double taxation
agreement (a "Treaty") with the United Kingdom which makes provision
for exemption from tax imposed by the United Kingdom on interest.
"Triangle Notes" means the 11.2% senior discount debentures due 15
November 2007, with a principal amount at maturity of $517,300,000,
issued by NTL Triangle LLC (formerly known as Comcast UK Cable
Partners Limited).
"UK Group" means:
(a) for the purpose of the definition of Required Monthly
Information, 19.9 (Audited Financial Statements), Clause
20.1 (Annual Statements), Clause 20.2 (Quarterly
Statements), Clause 21.1 (UK Group Financial Condition),
Clause 21.3 (Financial Definitions) and any other provisions
of this Agreement using the definitions defined in Clause
21.3 (Financial Definitions):
(i) the Parent;
(ii) NTL (South Hertfordshire) Limited (formerly known
as Cable & Wireless Communications (South
Hertfordshire) Limited) for so long as a member of
the UK Group is the general partner of South
Hertfordshire United Kingdom Fund, Ltd; and
(iii) each of the Parent's direct and indirect
subsidiaries from time to time, excluding the UK
Group Excluded Subsidiaries (other than NTL (South
Hertfordshire) Limited (formerly known as Cable &
Wireless Communications (South Hertfordshire)
Limited)); and
(b) for all other purposes, the Parent and each of its direct
and indirect subsidiaries from time to time other than the
UK Group Excluded Subsidiaries.
The Target and the other members of the Target Group became members
of the UK Group on the Pushdown Date. For information purposes only,
the members of the UK Group on the date of the Second Restatement
Amendment Agreement are listed in Schedule 12 (Members of the UK
Group).
"UK Group Excluded Subsidiary" means:
(a) any subsidiary of the Parent which is a Dormant Subsidiary
and which (i) has assets (save for loans existing on the
Execution Date owed to it by other members of the UK Group)
with an aggregate value of (pound)10,000 or less; (ii) does
not hold a Licence and (iii) is not a Guarantor;
(b) Moleseye Limited;
(c) Fawnspring Limited;
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(d) any member of the NTL Triangle Sub-Group (until such time as
the Parent elects for the members of the NTL Triangle
Sub-Group to become Guarantors in accordance with Clause
37.4 (NTL Triangle Accession));
(e) NTL (South Hertfordshire) Limited (formerly known as Cable &
Wireless Communications (South Hertfordshire) Limited and
its subsidiaries, until such time as NTL (South
Hertfordshire) Limited becomes a wholly-owned subsidiary of
the Parent;
(f) any subsidiary of the Parent which is a Project Company; and
(g) any company which becomes a subsidiary of the Parent after
the Execution Date pursuant to an Asset Passthrough,
provided that any of such companies shall become a member of the UK
Group and cease to be a UK Group Excluded Subsidiary if the Parent
and the Agent (acting on the instructions of an Instructing Group,
acting reasonably) so agree.
"UK Group Security" means the security constituted by the NTL UK
Intra-Group Loan Assignment, the Parent Intra-Group Loan Assignment,
the Share Charge Agreement, the Scottish Share Pledge, the Standard
Security Documents, the Indenture of Mortgage, the US Security
Agreement, the US Pledge Agreement, each Debenture in favour of the
Security Trustee, the Supplemental Mortgage and each Guarantor
Accession Memorandum executed or to be executed by the Parent and
sufficient members of the UK Group to ensure compliance with Clause
22.25 (Guarantors).
"Unpaid Sum" has the meaning ascribed in Clause 27.1 (Default
Interest Periods).
"Updated Business Plan" means the business plan for the Group in the
agreed form and delivered as a condition precedent to the Second
Restatement Amendment Effective Time.
"US Pledge Agreement" means the pledge agreement (governed by New
York law), dated 21 February 2001, between certain members of the UK
Group as pledgors and the Security Trustee, creating a first ranking
security and interest in relation to certain assets of the debtors as
specified therein.
"US Security Agreement" means the security agreement (governed by New
York law), dated 21 February 2001, between certain members of the UK
Group as debtors and the Security Trustee, creating first ranking
security over the rights and interests in relation to certain shares
as specified therein.
"VAT Act" means the Value Added Tax Act 1994.
"Working Capital Facility" means the working capital facility made
available to the Parent under the Working Capital Facility Agreement.
"Working Capital Facility Agreement" means the credit agreement dated
30 May 2000, originally in an amount of (pound)1,300,000,000 and
entered into between the Parent as borrower, the parties named
therein as guarantors, J.P. Morgan Europe Limited (formerly known as
Chase Manhattan International Limited) as agent and others.
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"Working Capital Facility Agent" means the person from time to time
appointed as the agent of the lenders under the Working Capital
Facility, at the Restatement Amendment Effective Date being J.P.
Morgan Europe Limited.
1.2 Interpretation
Any reference in this Agreement to:
the "Agent", an "Arranger", the "Security Trustee", the "Second
Security Trustee" or any "Bank" shall be construed so as to include
it and any subsequent successors and permitted transferees in
accordance with their respective interests;
an "affiliate" of a person shall be construed as a reference to a
subsidiary of that person or a holding company of that person or any
other subsidiary or holding company of that holding company;
"agreed form" in relation to any document means a form which is
initialled by each of the Agent and the Parent for the purposes of
identification (as such form may be amended from time to time by
agreement between such parties) or, if not so initialled, is a
document in form and substance reasonably satisfactory to the Agent;
"assets" includes present and future properties, revenues and rights
of every description;
a "company" includes any body corporate;
"continuing", in relation to an Event of Default, shall be construed
as a reference to an Event of Default which has not been waived in
writing or remedied and, in relation to a Potential Event of Default,
one which has not been remedied within the relevant grace period or
waived in accordance with the terms hereof;
"disposal" includes any sale, lease, transfer or other disposal;
the "equivalent" on any date in one currency (the "first currency")
of an amount denominated in another currency (the "second currency")
is a reference to the amount of the first currency which could be
purchased with the amount of the second currency at the spot rate of
exchange quoted by the Agent at or about 11.00 a.m. on such date for
the purchase of the first currency with the second currency;
"HM Customs & Excise" shall be construed as including "the
Commissioners" as defined in section 96(1) of the VAT Act;
a "holding company" of a company or corporation shall be construed as
a reference to any company or corporation of which the
first-mentioned company or corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
a "law" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, by-law, order or any other
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legislative measure of any government, supranational, local
government, statutory or regulatory body or court;
"leasehold" shall be construed so as to include any property in
Scotland, title to which is held under a duly registered or recorded
long lease;
a "member state" shall be construed as a reference to a member state
of the European Union;
a "month" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in the
next succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business
Day, such period shall end on the immediately succeeding
Business Day to occur in that next succeeding calendar month
or, if none, it shall end on the immediately preceding
Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
(and references to "months" shall be construed accordingly);
a "person" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing.
"repay" (or any derivative form thereof) shall, subject to any
contrary indication, be construed to include "prepay" (or, as the
case may be, the corresponding derivative form thereof) and vice
versa;
a "subsidiary" of a company or corporation shall be construed as a
reference to:
(a) any company or corporation:
(i) which is controlled, directly or indirectly, by
the first-mentioned company or corporation;
(ii) more than half the issued share capital of which
is beneficially owned, directly or indirectly, by
the first-mentioned company or corporation; or
(iii) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation,
and, for these purposes, a company or corporation shall be
treated as being controlled by another if that other company
or corporation is able to direct its affairs and/or to
control the composition of its board of directors or
equivalent body; and
(b) for the purposes only of Clause 20 (Financial Information),
Clause 21 (Financial Condition) and any other Clause where
the financial definitions referred to in Clause 21.3
(Financial Definitions) are used in this Agreement,
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any company or corporation which is a subsidiary undertaking
as defined in section 258 of the Companies Act 1985 or any
other legal entity which is accounted for as a subsidiary of
that first mentioned company or corporation;
a "successor" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of
its jurisdiction of incorporation or domicile has assumed the rights
and obligations of such party under this Agreement or to which, under
such laws, such rights and obligations have been transferred;
"tax" shall be construed so as to include any tax, levy, impost, duty
or other charge of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay
in paying any of the same);
"VAT" shall be construed as a reference to United Kingdom value added
tax as imposed by the VAT Act and any legislation supplemental
thereto;
a "wholly-owned subsidiary" of a company or corporation shall be
construed as a reference to any company or corporation which has no
other members except that other company or corporation and that other
company's or corporation's wholly-owned subsidiaries or persons
acting on behalf of that other company or corporation or its
wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which
such company or corporation carries on business including the seeking
of liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection or relief of
debtors.
1.3 Currency Symbols
1.3.1 "(pound)" and "sterling" denote lawful currency of the
United Kingdom and "$" and "dollars" denote lawful currency
of the United States of America.
1.3.2 "euro" means the single currency unit of the European Union
as constituted by the Treaty on European Union as referred
to in EMU Legislation and "euro unit" means the currency
unit of the euro as defined in EMU Legislation.
1.4 Agreements and Statutes
Any reference in a Finance Document to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case
may be, such other agreement or document as the same may
have been, or may from time to time be, amended, varied,
novated or supplemented (subject to and in accordance with
the provisions of this Agreement, where applicable); and
1.4.2 a statute or treaty shall be construed as a reference to
such statute or treaty as the same may have been, or may
from time to time be, amended or, in the case of a statute,
re-enacted.
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1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 Time
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to London time.
1.7 Terms defined in Debentures
Unless otherwise defined in any Debenture or if the context otherwise
requires, a term defined in this Agreement or in any other Finance
Document has the same meaning in such Debenture or any notice given
under or in connection with such Debenture, as if all references in
the defined terms to the Agreement or other Finance Document were a
reference to such Debenture or such notice.
1.8 Construction
Clauses 1.2 (Interpretation) to 1.6 (Time) of this Agreement will
apply as if incorporated in each Debenture or in any notice given
under or in connection with such Debenture, as if all references in
such Clauses to the Agreement were a reference to such Debenture or
such notice.
1.9 Application of provisions in Agreement
Clauses 26 (Costs and Expenses), 28.2 (Currency Indemnity), 39
(Remedies and Waivers, Partial Invalidity), 40 (Notices) and 44
(Jurisdiction) of this Agreement are deemed to form part of each
Debenture as if expressly incorporated into it and as if all
references in such Clauses to the Agreement were a reference to each
Debenture.
1.10 Clause and Schedule References
References in this Agreement to any Clause or Schedule shall, save as
otherwise specified, be to a Clause or Schedule contained in this
Agreement.
1.11 Third Party Rights
Save as provided herein, a person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties)
Act 1999 to enforce any term of this Agreement.
2. THE FACILITIES
2.1 Grant of the Facilities
Upon the terms and subject to the conditions hereof, the Revolving
Banks have granted to the Borrowers the Revolving Facility and the
Term Banks have granted to the Post-Novation Borrower the Term
Facility (which is fully drawn), in each case, as the same may be
reduced in accordance with the terms hereof provided that no Borrower
organised under the laws of any state of the United States of America
may borrow any amount under the Revolving Facility unless New NTL
gives its prior written consent to such borrowing.
2.2 Purpose
2.2.1 The Revolving Facility is intended to be used by the
Borrowers:
(a) to finance the working capital requirements of the
UK Group; and
(b) to finance, or refinance, Permitted Acquisitions;
and
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(c) to finance Asset Adjustment Payments.
2.2.2 The Term Facility was intended, and was applied, by the
Post-Novation Borrower to refinance amounts outstanding
under the Revolving Facility.
2.3 Application
2.3.1 Each Borrower shall apply all amounts raised by it under the
Revolving Facility in or towards satisfaction of the
purposes specified in sub-clause 2.2.1 of Clause 2.2
(Purpose).
2.3.2 The Post-Novation Borrower has applied all amounts raised by
it under the Term Facility in or towards satisfaction of the
purposes specified in sub-clause 2.2.2 of Clause 2.2
(Purpose).
2.3.3 None of the Finance Parties shall be obliged to concern
itself with such aforementioned application.
2.4 Initial Conditions Precedent
2.4.1 The conditions precedent to the initial availability of the
Revolving Facility (being the documents and other evidence
listed in Schedule 3 (Initial Revolving Bank Conditions
Precedent)) have been satisfied.
2.4.2 The condition precedent to the initial availability of the
Term Facility and the amendment and restatement of this
Agreement pursuant to the First Restatement Amendment
Agreement (being the occurrence of the Term Effective Date)
has been satisfied.
2.5 Banks' Obligations Several
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of
an Obligor towards any other party hereto nor shall any other party
be liable for the failure by such Bank to perform its obligations
hereunder.
2.6 Banks' Rights Several
The rights of each Bank are several and any debt arising hereunder at
any time from an Obligor to any of the other parties hereto shall be
a separate and independent debt. Each such party shall, save as
otherwise provided in this Agreement, the Security Trust Agreement
and the Second Security Trust Agreement, be entitled to protect and
enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary
for any party hereto to be joined as an additional party in any
proceedings for this purpose).
2.7 Acknowledgement of Second Security
The Revolving Banks acknowledge that, notwithstanding that the
Security covers the Term Loan and the Term Banks, the Term Banks have
also taken the security constituted by, or pursuant to, the Second
Security Documents. Each party hereto undertakes that it will not at
any time bring any legal action to challenge the validity or
effectiveness of any of the security purported to be created under or
pursuant to any Security Document or Second Security Document.
Further, and for the avoidance of doubt, the Term Banks acknowledge
(for the purposes of section 94 of the Law of Property Act, 1925)
that,
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notwithstanding the Second Security, all Advances made by the Banks
from time to time are intended to have the benefit of the Security
which ranks in priority to the Second Security given in respect of
the Term Advances.
3. UTILISATION OF THE REVOLVING FACILITY
3.1 Drawdown Conditions for Revolving Advances
A Revolving Advance will be made by the Revolving Banks to a
Borrower if:
3.1.1 during the Notice Period, the Agent has received a completed
Notice of Drawdown from such Borrower;
3.1.2 the proposed date for the making of such Revolving Advance
is a Business Day falling one month or more before the
Revolving Termination Date;
3.1.3 the proposed amount of such Revolving Advance is (a) if less
than the Available Revolving Facility an amount or integral
multiple of (pound)50,000,000 or (b) equal to the amount of
the Available Revolving Facility;
3.1.4 there would not, immediately after the making of such a
Revolving Advance, be more than ten Revolving Advances
outstanding;
3.1.5 save for Rollover Advances, neither of the events mentioned
in sub-clauses 8.1.1 and 8.1.2 of 8.1 (Market Disruption)
shall have occurred;
3.1.6 the proposed Term of the Revolving Advance requested shall
be a period of one, two, three or six months or such other
period as the Agent (acting on the instructions of all
Revolving Banks) may agree in each case ending on or before
the Revolving Termination Date; and
3.1.7 on and as of the proposed date for the making of such
Revolving Advance:
(a) in the case of Revolving Advances (other than
Rollover Advances), (i) no Event of Default or
Potential Event of Default is continuing and (ii)
the Repeated Representations are true in all
material respects; and
(b) in the case of Rollover Advances (i) no Event of
Default is continuing and (ii) those of the
Repeated Representations which are not capable of
remedy or change if incorrect or misleading in any
material respect, are true in all material
respects.
3.2 Each Revolving Bank's Participation in Revolving Advances
Each Revolving Bank will participate through its Facility Office in
each Revolving Advance made pursuant to this Clause 3 in the
proportion borne by its Available Revolving Commitment to the
Available Revolving Facility immediately prior to the making of that
Revolving Advance.
3.3 Reduction of Available Revolving Commitment
If a Revolving Bank's Revolving Commitment is reduced in accordance
with the terms hereof after the Agent has received the Notice of
Drawdown for a Revolving Advance
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and such reduction was not taken into account in the Available
Revolving Facility, then the amount of that Revolving Advance shall
be reduced accordingly.
4. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
4.1 Payment of Interest
On the Repayment Date relating to each Revolving Advance (and, if the
Term of such Revolving Advance exceeds six months, on the expiry of
each period of six months during such Term) the Borrower to which
such Revolving Advance has been made shall pay accrued interest on
that Revolving Advance.
4.2 Calculation of Interest
The rate of interest applicable to a Revolving Advance from time to
time during its Term shall be the rate per annum which is the sum of:
4.2.1 the Revolving Margin at such time;
4.2.2 the Mandatory Cost Rate; and
4.2.3 LIBOR.
4.3 Revolving Margin Ratchet
The Revolving Margin shall:
4.3.1 from the Second Restatement Amendment Effective Date until
the date falling 6 months after such date, be 3.50 per cent.
per annum; and
4.3.2 at any time thereafter, subject to Clause 4.5 (Revolving
Default Margin) and in accordance with the provisions of
Clause 4.4 (Revolving Margin Changes), be the percentage
rate per annum determined by the ratio of UK Group
Consolidated Total Debt on the most recent Specified Quarter
Date to Consolidated Annualised EBITDA of the UK Group for
the Relevant Period which ends on such most recent Specified
Quarter Date in accordance with the table set out below.
<table>
<caption>
--------------------------------------------------------------- ------------------------------------------
Ratio of UK Group Consolidated Total Debt to Consolidated Revolving Margin (per cent. per annum)
Annualised EBITDA of the UK Group
--------------------------------------------------------------- ------------------------------------------
<s> <c> <c>
Greater than or equal to 5:1 4.00
--------------------------------------------------------------- ------------------------------------------
Less than 5:1 and greater than or equal to 4:1 3.00
--------------------------------------------------------------- ------------------------------------------
Less than 4:1 2.50
--------------------------------------------------------------- ------------------------------------------
</table>
4.4 Revolving Margin Changes
Any reduction or increase to the Revolving Margin provided for by
Clause 4.3 (Revolving Margin Ratchet) shall take effect in relation
to all existing Revolving Advances and future Revolving Advances, in
each case with effect from the date the Agent receives the Compliance
Certificate in accordance with Clause 20.5 (Compliance
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Certificates) for its most recent Specified Quarter Date save that
the first reduction or increase to the Revolving Margin from the rate
specified in sub-clause 4.3.1 of Clause 4.3 (Revolving Margin
Ratchet) shall take effect from the date the Agent receives the first
Compliance Certificate delivered in accordance with Clause 20.5
(Compliance Certificates) after the date falling six months after the
Second Restatement Amendment Effective Date. Any change in the
Revolving Margin applicable to an existing Revolving Advance shall
only relate to the remainder of the current Term of such a Revolving
Advance.
4.5 Revolving Default Margin
If at any time on or after the date falling 6 months after the Second
Restatement Amendment Effective Date the Agent (acting reasonably)
determines (in writing) that an Event of Default or Potential Event
of Default has occurred or come into existence, the Revolving Margin
shall, from the date of such determination until the date specified
by the Agent (in writing) as being the date on which it has been
demonstrated to its satisfaction (acting reasonably) that such Event
of Default or Potential Event of Default is no longer continuing, be
4 per cent. per annum. The Agent shall promptly notify the other
parties hereto of any determination that an Event of Default or
Potential Event of Default has occurred or exists or, as the case may
be, that it has been demonstrated to its satisfaction (acting
reasonably) that such is no longer continuing.
5. UTILISATION OF THE TERM FACILITY
The Term Facility has been utilised in full.
6. INTEREST PERIODS FOR TERM ADVANCES
6.1 Interest Periods
The period for which a Term Advance is outstanding shall be divided
into successive periods (each an "Interest Period") each of which
(other than the first, which shall begin on the day the Term Advance
is made) shall start on the last day of the preceding Interest
Period.
6.2 Duration
The duration of each Interest Period shall, save as otherwise
provided herein, be one, two, three or six months or such other
period as the Agent (acting on the instructions of all Term Banks)
may agree, in each case as the Post-Novation Borrower may by not less
than five Business Days' prior notice (or such shorter notice period
as all the Term Banks may agree) to the Agent select, provided that:
6.2.1 if the Post-Novation Borrower fails to give such notice of
its selection in relation to an Interest Period, the
duration of that Interest Period shall, subject to
sub-clause 6.2.2 of this Clause 6.2, be one month; and
6.2.2 in respect of a Term Advance which, after taking into
account other Term Advances with Interest Periods ending on
or before a given Term Repayment Date, needs to be applied
in whole or in part in a repayment of the Term Loan on such
Term Repayment Date in accordance with Clause 11.1 (Term
Repayment Instalments), an Interest Period which would
otherwise end during
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the month preceding, or extend beyond, that Term Repayment
Date shall be of such duration that it shall end on that
Term Repayment Date.
6.3 Consolidation of Term Advances
If two or more Interest Periods end at the same time, then, on the
last day of those Interest Periods, the Term Advances to which they
relate shall be consolidated into and treated as a single Term
Advance.
6.4 Division of Term Advances
The Post-Novation Borrower may, by not less than five Business Days'
prior notice (or such shorter notice period as all the Term Banks may
agree) to the Agent, direct that a Term Advance shall, at the
beginning of any Interest Period relating thereto, be divided into
(and thereafter, save as otherwise provided herein, treated in all
respects as) two or more Term Advances in such amounts (in aggregate,
equalling the amount of the Term Advance being so divided) as shall
be specified by the Post-Novation Borrower in such notice, provided
that the Post-Novation Borrower shall not be entitled to make such a
direction if any Term Advance thereby coming into existence would be
of an amount less than (pound)50,000,000.
7. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES
7.1 Payment of Interest
On the last day of each Interest Period (and, if such Interest Period
exceeds six months, on the expiry of each period of six months during
such Interest Period), the Post-Novation Borrower shall pay accrued
interest on the Term Advance to which such Interest Period relates.
7.2 Calculation of Interest
The rate of interest applicable to a Term Advance from time to time
during an Interest Period relating thereto shall be the rate per
annum which is the sum of:
7.2.1 the Term Margin;
7.2.2 the Mandatory Cost Rate; and
7.2.3 LIBOR.
8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
8.1 Market Disruption
If:
8.1.1 in relation to any Advance LIBOR is to be determined by
reference to Reference Banks and at or about 11.00 a.m. on
the Quotation Date for the relevant Term or Interest Period
none or only one of the Reference Banks supplies a rate for
the purpose of determining LIBOR for the relevant Term or
Interest Period; or
8.1.2 in relation to a Revolving Advance, before the close of
business in London on the Quotation Date for such Advance
the Agent has been notified by a Revolving Bank or Revolving
Banks to whom in aggregate fifty per cent. or
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more of such Revolving Advance would be owed if made, that
LIBOR does not accurately reflect the cost of funding its
participation in such Revolving Advance; or
8.1.3 in relation to a Term Advance, before the close of business
in London on the Quotation Date for such Advance the Agent
has been notified by a Term Bank or Terms Banks to whom in
aggregate fifty per cent. or more of such Term Advance is
owed that LIBOR does not accurately reflect the cost of
funding its participation in such Term Advance,
then the Agent shall notify the Parent, the relevant Borrower and the
Revolving Banks or, as the case may be, the Term Banks of such event
and, notwithstanding anything to the contrary in this Agreement,
Clause 8.2 (Substitute Interest Rate and Substitute Term or Interest
Period) shall apply to such Advance (if it is a Rollover Advance or a
Term Advance that is already outstanding). If any of sub-clauses
8.1.1, 8.1.2 or 8.1.3 of this Clause 8.1 applies to a proposed
Revolving Advance (other than a Rollover Advance), such Revolving
Advance shall not be made or permitted.
8.2 Substitute Interest Rate and Substitute Term or Interest Period
If sub-clause 8.1.1 of Clause 8.1 (Market Disruption) applies to an
Advance, the duration of the relevant Term or Interest Period shall
be one month or, if less, such that it shall end on the Revolving
Termination Date (in the case of a Rollover Advance) or the next
succeeding Term Repayment Date (in the case of a Term Advance). If
any of sub-clauses 8.1.1, 8.1.2 or 8.1.3 of Clause 8.1 (Market
Disruption) applies to an Advance, the rate of interest applicable to
each Revolving Bank's or, as the case may be, each Term Bank's
portion of such Advance during the relevant Term or Interest Period
shall (subject to any agreement reached pursuant to Clause 8.3
(Alternative Rate)) be the rate per annum which is the sum of:
8.2.1 the Revolving Margin at such time or, as the case may be,
the Term Margin;
8.2.2 the Mandatory Cost Rate; and
8.2.3 the rate per annum notified to the Agent by such Revolving
Bank or such Term Bank before the last day of such Term or
Interest Period to be that which expresses as a percentage
rate per annum the cost to such Revolving Bank or Term Bank
of funding from whatever sources it may reasonably select
its portion of such Advance during such Term or Interest
Period.
8.3 Alternative Rate
If any of those events mentioned in sub-clauses 8.1.1, 8.1.2 or 8.1.3
of Clause 8.1 (Market Disruption) occurs in relation to an Advance
and if the Agent or the Parent so requires, the Agent and the Parent
shall enter into negotiations with a view to agreeing a substitute
basis (i) for determining the rates of interest from time to time
applicable to the relevant Advances and/or (ii) upon which the
relevant Advances may be maintained (whether in sterling or some
other currency) thereafter and any such substitute basis that is
agreed shall take effect in accordance with its terms and be binding
on each party hereto, provided that the Agent may not agree any such
substitute basis without the prior consent of each Bank (which is not
to be unreasonably withheld).
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9. NOTIFICATION
9.1 Advances
9.1.1 The Agent shall, promptly upon its receipt of a Notice of
Drawdown, notify each Revolving Bank of:
(a) the name of the Borrower;
(b) the proposed amount of the relevant Revolving
Advance;
(c) the proposed length of the relevant Term; and
(d) the aggregate principal amount of the relevant
Revolving Advance allocated to such Bank pursuant
to Clause 3.2 (Each Revolving Bank's Participation
in Revolving Advances).
9.1.2 The Agent shall, promptly upon receipt of notification under
Clause 6.2 (Duration), notify each Term Bank of the proposed
length of the Interest Period for the Term Advance to which
such notice relates.
9.2 Interest Rate Determination
The Agent shall promptly notify the relevant Borrower and the
Revolving Banks or, as the case may be, the Term Banks of each
determination of LIBOR, the Mandatory Cost Rate and (in the case of
the Revolving Banks) the Revolving Margin or (in the case of the Term
Banks) the Term Margin.
9.3 Changes to Advances or Interest Rates
The Agent shall promptly notify the relevant Borrower and the
Revolving Banks or, as the case may be, the Term Banks of any change
to (a) the proposed length of a Term or Interest Period or (b) any
interest rate occasioned by the operation of Clause 8 (Market
Disruption and Alternative Interest Rates).
10. REPAYMENT OF THE REVOLVING FACILITY
Each Borrower to which a Revolving Advance has been made shall repay
the Revolving Advance made to it in full on the Repayment Date
relating thereto. For the avoidance of doubt, the Revolving Facility
shall be repaid in full on the Revolving Termination Date.
11. REPAYMENT OF THE TERM FACILITY
11.1 Term Repayment Instalments
The Post-Novation Borrower shall repay the Term Loan in instalments
on each Term Repayment Date by repaying an amount equal to the amount
(the "Repayment Instalment"), set opposite that Term Repayment Date
in the table below.
<table>
<caption>
----------------------------------------------------------- ---------------------------------------------------------
Term Repayment Date Repayment Instalment
(pound)
----------------------------------------------------------- ---------------------------------------------------------
<s> <c> <c>
30 June 2006 5,000,000
----------------------------------------------------------- ---------------------------------------------------------
30 September 2006 5,000,000
----------------------------------------------------------- ---------------------------------------------------------
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31 December 2006 10,000,000
----------------------------------------------------------- ---------------------------------------------------------
31 March 2007 10,000,000
----------------------------------------------------------- ---------------------------------------------------------
30 June 2007 10,000,000
----------------------------------------------------------- ---------------------------------------------------------
30 September 2007 160,000,000 or, if different, the entire unpaid balance
of the Term Loan
----------------------------------------------------------- ---------------------------------------------------------
</table>
11.2 Selection of Term Advances
If, in relation to a Term Repayment Date, the aggregate amount of the
Term Advances exceeds the amount of the Term Loan to be repaid, the
Post-Novation Borrower may, by not less than five Business Days'
prior notice (or such shorter notice period as all the Term Banks may
agree) to the Agent, select which of those Term Advances will be
wholly or partially repaid, provided that:
11.2.1 the Post-Novation Borrower may not make any such selection
if, as a result, more than one such Term Advance would fall
to be partially repaid; and
11.2.2 if the Post-Novation Borrower fails to give such notice, the
Agent shall select the Term Advances to be wholly or
partially repaid.
12. CANCELLATION AND PREPAYMENT
12.1 Cancellation of the Revolving Facility
The Parent may, by giving to the Agent not less than five Business
Days' prior written notice to that effect, cancel the whole or any
part (being a minimum amount of (pound)50,000,000 and an integral
multiple of (pound)10,000,000) of the Available Revolving Facility.
Any such cancellation shall reduce the Available Revolving Commitment
and Revolving Commitment of each Revolving Bank rateably. Any amount
so cancelled under this Clause 12.1 may not be reborrowed.
12.2 Prepayment of the Revolving Facility
Subject to the provisions of Clause 27.4 (Break Costs), a Borrower to
which a Revolving Advance has been made may, by giving to the Agent
not less than five Business Days' prior written notice to that
effect, prepay the whole or any part of a Revolving Advance (being a
minimum amount of (pound)50,000,000 and an integral multiple of
(pound)10,000,000).
12.3 Prepayment of the Term Loan
12.3.1 Subject to sub-clause 12.3.2, the Post-Novation Borrower
may, by giving to the Agent not less than five Business
Days' prior notice (or such shorter notice period as the
Term Banks may agree) to that effect, prepay the whole or
any part of the Term Loan (being a minimum amount of
(pound)50,000,000 and an integral multiple of
(pound)10,000,000). Any prepayment so made shall satisfy pro
tanto the Post-Novation Borrower's obligations under Clause
11.1 (Term Repayment Instalments) and shall be applied
rateably to the instalments provided for therein.
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12.3.2 If any Term Bank receives any prepayment under
sub-clause 12.3.1 above, the Post-Novation
Borrower shall also, in addition to any amount
payable under Clause 27.4 (Break Costs), pay to
the Agent for the account of the Term Banks the
applicable Term Prepayment Amount. No Term
Prepayment Amount shall be payable in respect of a
prepayment required by the Banks (or such of the
Banks as may be relevant in accordance with Clause
42 (Amendments)) as a condition to any consent,
amendment or waiver given under the Finance
Documents.
12.3.3 Subject to this Clause 12.3 and whilst the
Revolving Facility subsists, a prepayment may only
be made under the Term Facility (a "Term Facility
Prepayment") if a contemporaneous prepayment is
made under the Revolving Facility (a "Revolving
Facility Prepayment") (in accordance with Clause
12.2 (Prepayment of the Revolving Facility)) and
the amount of the Revolving Facility Prepayment
bears the same proportion to the sum of the Term
Facility Prepayment and the Revolving Facility
Prepayment as the Total Revolving Commitments
bears to the Total Commitments at that time.
12.3.4 If, on the day on which the Term Facility
Prepayment and the Revolving Facility Prepayment
are due to be made, the amount of the Revolving
Facility Prepayment determined under sub-clause
12.3.3 exceeds the Revolving Loan, the Revolving
Loan shall be prepaid in full and the Available
Revolving Facility shall be reduced by an amount
equal to the difference between the Revolving
Facility Prepayment determined under sub-clause
12.3.3 and the Revolving Loan. Any such
cancellation shall reduce the Available Revolving
Commitment and Revolving Commitment of each
Revolving Bank rateably. Any amount so prepaid or
cancelled under this Clause 12.3 may not be
reborrowed.
12.4 Notice of Cancellation or Prepayment
Any notice of cancellation or prepayment given by the Parent or a
Borrower pursuant to this Clause 12 shall be irrevocable, shall
specify the date upon which such cancellation or prepayment is to be
made and the amount of such cancellation or prepayment and, in the
case of a notice of prepayment, shall oblige the relevant Borrower to
make such prepayment on such date.
12.5 Repayment of a Bank's Share of Loan
If:
12.5.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 14.1 (Tax Gross-up); or
12.5.2 any Bank claims indemnification from an Obligor under Clause
14.2 (Tax Indemnity), the Agent claims indemnification from
an Obligor under Clause 14.2 (Tax Indemnity) in respect of a
payment received by it and paid by it to a Bank under the
Finance Documents, or any Bank claims indemnification from a
Borrower under Clause 16.1 (Increased Costs),
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the Parent may, whilst such circumstance continues, give the
Agent at least five Business Days' prior written notice
(which notice shall be irrevocable) of its intention to
procure the repayment of such Bank's share of the Loan. On
the last day of each then current Term or Interest Period,
or at any other time subject to the provisions of Clause
27.4 (Break Costs), each Borrower to which an Advance has
been made shall repay such Bank's portion of the Advance to
which such Term or Interest Period relates. Any repayment of
a Term Advance under this Clause 12.5 shall reduce rateably
the remaining obligations of the Post-Novation Borrower
under Clause 11.1 (Term Repayment Instalments).
12.6 No Further Advances
A Bank for whose account a repayment is to be made under Clause 12.5
(Repayment of a Bank's Share of Loan) shall not be obliged to
participate in the making of Revolving Advances on or after the date
upon which the Agent receives the Parent's notice of its intention to
procure the repayment of such Bank's share of the Loan, and such
Bank's Available Revolving Commitment shall be reduced to zero.
12.7 No Other Repayments
No Borrower shall repay all or any part of the Loan except at the
times and in the manner expressly provided for in this Agreement.
13. MANDATORY PREPAYMENT
13.1 Mandatory Prepayment from Excess Cash Flow
The Parent shall ensure that within 15 Business Days of delivery of
the most recent financial statements of the UK Group pursuant to
Clause 20.2 (Quarterly Statements), commencing with the financial
statements delivered in respect of the Financial Quarter ending 31
December 2002, a percentage of the Parent's determination of Excess
Cash Flow for the Financial Quarter to which such quarterly financial
statements relate (such determination of Excess Cash Flow to be made
by reference to such quarterly financial statements and to be set out
in sufficient detail (including the relevant numbers used in
computing each component part of "Operating Cash Flow" and "Group
Total Debt Service") delivered with such quarterly financial
statements) is applied in cancellation and repayment of the Loan in
accordance with Clause 13.6 (Application of Proceeds), irrespective
of whether or not the Reporting Accountants have, prior to the end of
such 15 Business Day period, verified the Parent's determination of
Excess Cash Flow. The percentage of Excess Cash Flow in any Financial
Quarter which is required to be applied in cancellation and repayment
of the Loan pursuant to this Clause 13.1 shall be determined by
reference to the ratio of UK Group Consolidated Total Debt to
Consolidated Annualised EBITDA of the UK Group for such Financial
Quarter in accordance with the table below:
<table>
<caption>
----------------------------------------------------------- ---------------------------------------------------------
Ratio of UK Group Consolidated Total Debt to Consolidated Percentage of Excess Cash Flow to be applied in
Annualised EBITDA for the UK Group cancellation and repayment of the Loan
----------------------------------------------------------- ---------------------------------------------------------
<s> <c>
Greater than or equal to 4.00:1 75 per cent.
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----------------------------------------------------------- ---------------------------------------------------------
Less than 4.00:1 50 per cent.
----------------------------------------------------------- ---------------------------------------------------------
</table>
provided that if, pursuant to the foregoing provisions of this Clause
13.1, any amount is applied in cancellation and repayment of the Loan
in accordance with Clause 13.6 (Application of Proceeds) prior to
verification by the Reporting Accountants of the Parent's
determination of Excess Cash Flow, and the subsequent verification
thereof by the Reporting Accountants demonstrates that:
(a) a further amount of Excess Cash Flow for the relevant
Financial Quarter should have been applied in cancellation
and repayment of the Loan in order to fully satisfy the
Parent's obligations under this Clause 13.1, the Parent
shall, within 5 Business Days of receipt of notification to
such effect from the Agent or from the Reporting Accountants
on behalf of the Agent, apply such further amount in
cancellation and repayment of the Loan in accordance with
Clause 13.6 (Application of Proceeds); or
(b) the amount of Excess Cash Flow which should have been
applied in cancellation and repayment of the Loan in order
to fully satisfy the Parent's obligations under this Clause
13.1 for the relevant Financial Quarter (the "Verified
Amount") is less than the amount actually applied by the
Parent in cancellation and repayment of the Loan in respect
of such Financial Quarter (the "Applied Amount"), the
difference between the Applied Amount and the Verified
Amount shall be deducted (but deducted once only) from any
future amount of Excess Cash Flow which falls due, pursuant
to the foregoing provisions of this Clause 13.1, to be
applied in cancellation and repayment of the Loan in
accordance with Clause 13.6 (Application of Proceeds).
13.2 Mandatory Prepayment from Asset Disposals
13.2.1 Subject to sub-clause 13.2.2 and sub-clause 13.2.3 of this
Clause 13.2, at all times prior to the date upon which the
Exit Financing is repaid in full, the Parent shall ensure
that: (a) the net proceeds of any disposal falling within
paragraph (g)(A) of the definition of Permitted Disposal of
any asset by any member of the UK Group; and (b) the Net
Proceeds of any Asset Disposition made by any member of the
UK Group, which have not been either:
(i) in the case of (a) or (b) above, applied as
capital expenditure by members of the UK Group
(subject to a cap for capital expenditure of the
Group of $10,000,000 (or its equivalent in other
currencies) in each financial year of New NTL)
within 365 days of the receipt of such proceeds;
or
(ii) in the case of (b) above, to the extent such Net
Proceeds represent proceeds received from an
insurance claim, applied in amelioration of an
involuntary loss, damage, destruction or
condemnation of assets, toward the replacement,
reinstatement and/or repair of such assets and/or
the satisfaction of business interruption losses
in respect of which the relevant insurance claim
was made (or to refinance any expenditure incurred
in the
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replacement, reinstatement and/or repair of such
assets and/or the satisfaction of business
interrupting losses) within 365 days of the
receipt of such Net Proceeds,
are (without double counting and, for the avoidance of
doubt, in the case of (b) above, to the extent the relevant
Net Proceeds have not already been paid to the Agent and
applied in accordance with Clause 13.3 (Mandatory Prepayment
from Insurance Proceeds)) paid to the Agent for application
in cancellation and repayment of the Loan in accordance with
Clause 13.6 (Application of Proceeds) unless the relevant
member of the UK Group can show to the satisfaction of the
Agent (acting reasonably) that the aggregate of:
(x) the net disposal proceeds referred to at (a) above
in respect of disposals made in the immediately
preceding twelve calendar month period; and
(y) the Net Proceeds referred to at (b) above in
respect of Asset Dispositions (after deducting any
net disposal proceeds referred to at (x) above to
the extent such net disposal proceeds constitute
Net Proceeds referred to at (b) above and after
deducting any Net Proceeds which represent
proceeds received from an insurance claim (but
without prejudice to Clause 13.3 (Mandatory
Prepayment from Insurance Proceeds)) made by
members of the UK Group, any UK Group Excluded
Subsidiary (other than any member of the NTL
Triangle Sub-Group), NTL UK or any other
Subsidiary of New Holdco which is a holding
company of the Parent in the immediately preceding
twelve calendar month period,
does not exceed (pound)10,000,000 (or its equivalent in
other currencies).
13.2.2 The Banks hereby agree that, at any time following a
refinancing of the Exit Financing, they shall consider any
amendments proposed by the Parent to be made to sub-clause
13.2.1 of this Clause 13.2 with a view to ensuring that the
terms of sub-clause 13.2.1 of this Clause 13.2 are no more
onerous than the mandatory prepayment from asset disposals
provisions contained in the documentation for such
refinancing provided that:
(a) if such mandatory prepayment from asset disposals
provisions contained in the documentation for such
refinancing are less onerous (in the opinion of an
Instructing Group, acting reasonably) than
sub-clause 13.2.3 of this Clause 13.2, sub-clause
13.2.3 of this Clause 13.2 shall apply in
substitution of sub-clause 13.2.1 of this Clause
13.2;
(b) the Banks shall act reasonably when considering
any amendments proposed by the Parent to be made
to sub-clause 13.2.1 of this Clause 13.2 and, for
the avoidance of doubt, amendments to sub-clause
13.2.1 of this Clause 13.2 may be made by the
Agent (on behalf of the Banks) with the prior
consent of an Instructing Group; and
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(c) the documentation for any subsequent refinancing
of the initial refinancing of the Exit Facility
shall not contain more onerous mandatory
prepayment from asset disposal provisions than
those which are, at such time, applicable under
this Agreement.
13.2.3 At all times following the date upon which the Exit
Financing or any refinancing of the Exit Financing referred
to at sub-clause 13.2.2 of this Clause 13.2 has been repaid
in full other than by way of being refinanced by other
indebtedness or in the circumstances referred to at
paragraph (a) of sub-clause 13.2.2 of this Clause 13.2, the
Parent shall ensure that the net proceeds of any disposal
falling within paragraph (g)(A) of the definition of
Permitted Disposals of any asset by any member of the UK
Group, are applied in cancellation and repayment of the Loan
in accordance with Clause 13.6 (Application of Proceeds)
unless the relevant member of the UK Group can show to the
satisfaction of the Agent (acting reasonably) that:
(a) such disposal was on arms' length terms and the
net disposal proceeds are to be reinvested in
similar or like assets of a comparable or superior
quality or applied towards the UK Group's Capital
Expenditure within a period of 365 days from the
date of receipt of such proceeds by the relevant
member of the UK Group; or
(b) such disposal was on arms' length terms and in the
ordinary and usual course of business of such
member of the UK Group; or
(c) the net disposal proceeds, when aggregated with
the net disposal proceeds received by members of
the UK Group in respect of disposals falling
within paragraph (g)(A) of the definition of
Permitted Disposals made in the immediately
preceding twelve calendar month period (excluding
the proceeds from disposals falling within
paragraph (a) or paragraph (b) above), does not
exceed (pound)10,000,000 (or its equivalent in
other currencies).
In the case of paragraph (a) above only, the net disposal
proceeds referred to therein will be deposited in the
Prepayment Escrow Account and the relevant member of the UK
Group shall be entitled, during the 365 day period, to
withdraw (or require the Parent to withdraw) sums from such
account only to the extent that it is able reasonably to
demonstrate that such sums will be reinvested or applied in
accordance with the provisions of paragraph (a) above. Any
amounts not reinvested as specified in paragraph (a) above
during the 365 day period specified therein shall thereafter
be applied in repayment of the Loan in accordance with
Clause 13.6 (Application of Proceeds).
13.2.4 For the avoidance of doubt, the Parent shall also ensure
that the net proceeds of any disposal falling within
paragraph (m) of the definition of Permitted Disposal of any
asset by any member of the UK Group are applied in
cancellation and repayment of the Loan in accordance with
Clause 13.6 (Application of Proceeds).
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13.2.5 For the purposes of this Clause 13.2 and Clause 13.3
(Mandatory Prepayment from Insurance Proceeds), "Net
Proceeds" and "Asset Disposition" shall each bear the
meaning given to such term in the Exit Financing Indenture
as set out in Appendix B (Change of Control and Asset
Disposition provisions of the Exit Financing Indenture) as
those definitions may be amended from time to time provided
that no amendment to either of those definitions shall be
taken into account for the purposes of this Clause 13.2
until such time as the Agent shall have received a copy of
the amended definitions and such other information in
relation thereto as the Agent may reasonably request.
13.3 Mandatory Prepayment from Insurance Proceeds
The Parent shall ensure that Insurance Proceeds (including, for the
avoidance of doubt, Net Proceeds of any Asset Disposition (each as
defined in sub-clause 13.2.5 of Clause 13.2 (Mandatory Prepayment
from Asset Disposals)) received from an insurance claim) received by
any member of the UK Group above an aggregate minimum threshold of
Insurance Proceeds of (pound)10,000,000 (or its equivalent in other
currencies) (the "Minimum Threshold"), are paid to the Agent and
applied in repayment of the Loan in accordance with Clause 13.6
(Application of Proceeds), unless the Insurance Proceeds received
above the Minimum Threshold are:
13.3.1 promptly upon receipt deposited in the Prepayment Escrow
Account in accordance with the provisions of Clause 13.4
(Payment of Insurance Proceeds into Prepayment Escrow
Account); and
13.3.2 applied, to the satisfaction of the Agent, towards the
replacement, reinstatement and/or repair of the assets
and/or the satisfaction of business interruption losses in
respect of which the relevant insurance claim was made (or
to refinance any expenditure incurred in the replacement,
reinstatement and/or repair of such assets and/or the
satisfaction of business interruption losses) within a
period of 365 days from the date of receipt of such
Insurance Proceeds by the relevant member of the UK Group.
13.4 Payment of Insurance Proceeds into Prepayment Escrow Account
The Parent shall ensure that any Insurance Proceeds to be applied in
accordance with sub-clause 13.3.2 of Clause 13.3 (Mandatory
Prepayment from Insurance Proceeds) are deposited in the Prepayment
Escrow Account. The relevant member of the UK Group that received the
Insurance Proceeds shall be entitled, during the period of 365 days
from its receipt of the Insurance Proceeds, to withdraw sums from the
Prepayment Escrow Account only to the extent that it is able to
reasonably demonstrate that such sums will be applied towards the
replacement, reinstatement and/or repair of the assets and/or the
satisfaction of business interruption losses in respect of which the
relevant insurance claim was made (or to refinance any expenditure
incurred in the replacement, reinstatement and/or repair of such
assets and/or the satisfaction of business interruption losses). Any
sums not so withdrawn during such 365 day period shall thereafter be
paid to the Agent and applied in repayment of the Loan in accordance
with Clause 13.6 (Application of Proceeds).
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13.5 Mandatory Prepayment from Debt and Equity
Sub-clause 22.16.1(b) of Clause 22.16 (Mandatory Contribution)
obliges New NTL to ensure that 75 per cent. of the aggregate amount
of certain net cash proceeds of any equity or Financial Indebtedness
raised by any member of the Covenant Group after 31 December 2003
(other than the net cash proceeds of relevant Excluded Contributions)
is contributed to the members of the UK Group (other than the
Parent). New NTL shall ensure that 50 per cent. of the aggregate
amount of the net cash proceeds of any such equity or Financial
Indebtedness raised by members of the Covenant Group at any time
after 31 December 2003 (other than the net cash proceeds of Excluded
Debt and Equity) (such an amount being 662/3 per cent. of the amount
contributed to the UK Group (other than the Parent) in accordance
with sub-clause 22.16.1(b) of Clause 22.16 (Mandatory Contribution))
is deposited in the Prepayment Escrow Account and applied in
cancellation and repayment of the Loan in accordance with Clause 13.6
(Application of Proceeds).
13.6 Application of Proceeds
13.6.1 Any amounts paid to the Agent in accordance with Clause 13.1
(Mandatory Prepayment from Excess Cash Flow) to Clause 13.5
(Mandatory Prepayment from Debt and Equity) (each, a
"Relevant Amount") shall:
(a) be retained in the Prepayment Escrow Account
pending any withdrawal permitted by sub-clause
13.2.3 of Clause 13.2 (Mandatory Prepayment from
Asset Disposals) (if applicable) or Clause 13.4
(Payment of Insurance Proceeds into Prepayment
Escrow Account); and
(b) if no such right of withdrawal is available, if it
has ceased to be available or if the Parent so
instructs the Agent, be applied on one or more
Repayment Dates, or as the case may be, the last
day of one or more Interest Periods, until such
time as such amounts have been applied in full in
repayment of the Loan in accordance with this
Clause 13.6.
13.6.2 Any Relevant Amounts shall, when required to be applied in
repayment of the Loan in accordance with this Clause 13.6
(and then on the dates indicated in sub-clause 13.6.1
above), be applied as follows:
(a) in prepayment and cancellation of the Revolving
Loan by that portion of the Relevant Amount equal
to the proportion which the Total Revolving
Commitments bear to the Total Commitments (such
portion of the Relevant Amount being hereinafter
referred to as the "Revolving Relevant Amount")
provided that the Parent shall apply an amount
equal to the amount by which the Revolving
Relevant Amount exceeds the Revolving Loan in
payment to the relevant member of the UK Group,
with a corresponding cancellation of the Available
Revolving Facility in an amount equal to the
amount of such payment; and
(b) in prepayment of the Term Loan by that portion of
the Relevant Amount equal to the proportion which
the Total Term Commitments bears to the Total
Commitments.
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13.6.3
(a) A Term Bank may, at its option, elect to waive
receipt of its portion of a Relevant Amount, in
which case such amount shall be applied to reduce
the Revolving Loan in accordance with paragraph
(a) of sub-clause 13.6.2.
(b) Any prepayment of the Term Loan made pursuant to
this Clause 13.6 shall satisfy pro tanto the
Post-Novation Borrower's obligations under Clause
11.1 (Term Repayment Instalments) and shall be
applied rateably to the instalments provided for
therein.
13.6.4 Any amount of the Loan repaid in accordance with this Clause
13.6 may not be reborrowed. Any cancellation of the
Available Revolving Facility in accordance with this Clause
13.6 shall reduce the Revolving Commitment of each Revolving
Bank rateably and the amount so cancelled may not be
reborrowed.
13.7 Mandatory Prepayment due to Change in Control
13.7.1 If after the Plan Effective Date:
(a) any person, or group of connected persons, (which
did not have control at the Plan Effective Date)
acquires control of New NTL provided that, for the
avoidance of doubt, any change of control
occurring by reason of the issuance by New NTL of
the New NTL Common Stock pursuant to the Plan
shall not constitute a change of control for the
purposes of this sub-clause 13.7.1 of this Clause
13.7;
(b) New Holdco ceases to be (directly or indirectly) a
wholly-owned subsidiary of New NTL;
(c) NTL UK ceases to be (directly or indirectly) a
wholly owned subsidiary of New NTL;
(d) the Parent ceases to be (directly or indirectly) a
wholly-owned subsidiary of New NTL;
(e) the Post-Novation Borrower ceases to be (directly
or indirectly) a wholly-owned subsidiary of New
NTL;
(f) but prior to any Permitted Refinancing of the Exit
Financing, any Change of Control occurs under the
Exit Financing Indenture (unless such Change of
Control is the subject of a waiver (but not, for
the avoidance of doubt, a forbearance) by the
requisite percentage or, as the case may be,
number of holders of the notes issued pursuant to
the Exit Financing Indenture sufficient to bind
all of the holders of such notes) and/or any
Change of Control Offer is made; or
(g) following any Permitted Refinancing of the Exit
Financing, any party to the documentation
constituting such Permitted Refinancing becomes
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entitled to declare any indebtedness under such
Permitted Refinancing due and payable prior to its
specified maturity, or any such indebtedness
becomes so due and payable, in either case by
reason of any change of control (howsoever
expressed or defined in such documentation
constituting such Permitted Refinancing) in
respect of New NTL (unless such change of control
is the subject of a waiver (but not, for the
avoidance of doubt, a forbearance) by the
requisite percentage or, as the case may be,
number of creditors under such documentation
constituting such Permitted Refinancing),
then the Parent shall procure the immediate repayment of the
Loan in full (together with accrued interest thereon and any
other sums then owed by the Borrowers hereunder) and the
Available Revolving Commitment of each Bank shall
immediately be cancelled and reduced to zero.
13.7.2 For the purpose of this Clause 13.7:
"Change of Control" and "Change of Control Offer" shall each
bear the meaning given to such term in the Exit Financing
Indenture as set out in Appendix B (Change of Control and
Asset Disposition provisions of the Exit Financing
Indenture) or as such definitions in the Exit Financing
Indenture may be amended from time to time.
"control" means:
(a) the power (whether by way of ownership of shares,
proxy, contract, agency or otherwise) to:
(i) cast, or control the casting of, more than
one-half of the maximum number of votes
that might be cast at a general meeting of
New NTL; or
(ii) appoint or remove all, or the majority, of
the directors or other equivalent officers
of New NTL; or
(iii) give directions with respect to the
operating and financial policies of New
NTL which the directors or other
equivalent officers of New NTL are obliged
to comply with; or
(b) the holding of more than one-half of the issued
share capital of New NTL (excluding any part of
that issued share capital that carries no voting
rights).
"group of connected persons" means a group of persons who,
pursuant to an agreement or understanding (whether formal or
informal), actively co-operate, through the acquisition by
any of them, either directly or indirectly, of shares in New
NTL to obtain or consolidate control of New NTL.
13.7.3 This Clause 13.7 will not apply, and the Available Revolving
Commitments will not be cancelled, and the Loan will not
become due and payable in the
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event that any company acquires control of New NTL as part
of a solvent reorganisation of the Group on terms approved
by the Agent (acting on the instructions of an Instructing
Group).
14. TAXES
14.1 Tax Gross-up
All payments to be made by an Obligor to any Finance Party under the
Finance Documents shall be made free and clear of and without
deduction for or on account of tax unless such Obligor is required by
law to make such a payment subject to the deduction or withholding of
tax, in which case the sum payable by such Obligor (in respect of
which such deduction or withholding is required to be made) shall,
subject to Clause 14.4 (Excluded Claims), be increased to the extent
necessary to ensure that such Finance Party receives a sum net of any
deduction or withholding equal to the sum which it would have
received had no such deduction or withholding been made or required
to be made.
14.2 Tax Indemnity
Without prejudice to Clause 14.1 (Tax Gross-up), if the Agent or (as
a result of the introduction of, or change in or in the
interpretation, administration or application of, any law or
regulation or order or governmental rule or double taxation agreement
or any published practice or concession of any relevant taxing
authority after the Execution Date) any Bank (a) is required to make
any payment of or on account of tax on or in relation to any sum
received or receivable under the Finance Documents (including any sum
deemed for purposes of tax to be received or receivable by such
Finance Party, whether or not actually received or receivable) or (b)
has any liability in respect of any such payment asserted, imposed,
levied or assessed against it, the relevant Obligor shall, within
five Business Days of demand by the Agent, promptly indemnify the
Agent or Bank which suffers a loss or liability as a result against
such payment or liability, together with any interest, penalties,
costs and expenses payable or incurred in connection therewith,
provided that this 14.2 shall not apply to:
14.2.1 any tax imposed on and calculated by reference to the net
income, profits or gains actually received or receivable by
the Agent or such Bank (but, for the avoidance of doubt, not
including any sum deemed for purposes of tax to be received
or receivable by the Agent or such Bank but not actually
receivable) by the jurisdiction in which the Agent or such
Bank is incorporated or, if different, the jurisdiction (or
jurisdictions) in which the Agent or such Bank is treated as
resident for tax purposes; or
14.2.2 any tax imposed on and calculated by reference to the net
income, profits or gains of the Facility Office of the Agent
or such Bank actually received or receivable by the Agent or
such Bank (but, for the avoidance of doubt, not including
any sum deemed for purposes of tax to be received or
receivable by the Agent or such Bank but not actually
receivable) by the jurisdiction in which its Facility Office
is located; or
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14.2.3 any tax imposed on a Bank which would not have arisen but
for a sub-participation in respect of its rights and
benefits under any of the Finance Documents.
14.3 Claims by Banks and the Agent
A Bank intending to make a claim pursuant to Clause 14.2 (Tax
Indemnity) shall notify the Agent of the event giving rise to the
claim, whereupon the Agent shall notify the Parent and the Borrowers
thereof. If the Agent intends to make a claim pursuant to Clause 14.2
(Tax Indemnity) it shall notify the Parent and the Borrowers of the
event giving rise to the claim.
14.4 Excluded Claims
If any Finance Party is not or ceases to be a Qualifying Lender, no
Obligor shall be liable to pay to that Finance Party under Clause
14.1 (Tax Gross-Up) any amount in respect of taxes levied or imposed
in excess of the amount it would have been obliged to pay if that
Finance Party had been or had not ceased to be a Qualifying Lender
provided that this Clause 14.4 shall not apply (and each Obligor
shall be obliged to comply with its obligations under Clause 14.1
(Tax Gross-Up)) if:
14.4.1 after the Execution Date there shall have been any
introduction of, or change in or in the interpretation,
administration or application of, any law or regulation or
order or governmental rule or double taxation agreement or
any published practice or concession of any relevant taxing
authority and as a result thereof such Finance Party ceases
to be a Qualifying Lender; or
14.4.2 such Finance Party is not or ceases to be a Qualifying
Lender as a result of the actions of any Obligor.
14.5 Treaty Lenders
A Treaty Lender and each Obligor which makes a payment to which that
Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for that Obligor to obtain
authorisation to make that payment without a deduction or withholding
for or on account of tax. If an Obligor is able to demonstrate that a
deduction or withholding for or on account of tax is required to be
made by it as a result of a Treaty Lender's failure to so co-operate,
such an Obligor shall not be liable to pay any increased amount under
Clause 14.1 (Tax Gross-Up) as a result of such a deduction or
withholding.
14.6 Notification of Status
Each Bank shall notify the Agent if it is not a Qualifying Lender at
the time it becomes a Bank hereunder or, if it is then a Qualifying
Lender, shall promptly notify the Agent if at any time thereafter it
ceases to be a Qualifying Lender. The Agent shall promptly notify the
Parent of any notices it receives under this Clause 14.6.
15. TAX RECEIPTS
15.1 Notification of Requirement to Deduct Tax
If, at any time, an Obligor is required by law to make any deduction
or withholding from any sum payable by it under the Finance Documents
(or if thereafter there is any change in the rates at which or the
manner in which such deductions or withholdings are
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calculated), such Obligor and the Bank to which such sum is payable
shall promptly upon becoming aware of such a requirement notify the
Agent accordingly. If the Agent receives such a notification from a
Bank it shall promptly notify the Parent and the Obligor who is
required to make such a deduction or withholding.
15.2 Evidence of Payment of Tax
If an Obligor makes any payment under the Finance Documents in
respect of which it is required to make any deduction or withholding,
it shall pay the full amount required to be deducted or withheld to
the relevant taxation or other authority within the time allowed for
such payment under applicable law and shall request and, within
thirty days of it receiving the same, deliver to the Agent for each
relevant Bank an original receipt (or a certified copy thereof)
issued by such authority evidencing the payment to such authority of
all amounts so required to be deducted or withheld in respect of that
Bank's share of such payment.
15.3 Tax Credit Payment
If an additional payment is made under Clause 14 (Taxes) by an
Obligor for the benefit of any Finance Party and such Finance Party,
in its sole discretion, determines that it has obtained (and has
derived full use and benefit from) a credit against, a relief or
remission for, or repayment of, any tax, then, if and to the extent
that such Finance Party, in its sole opinion, determines that such
credit, relief, remission or repayment is in respect of or calculated
with reference to or otherwise relates to the additional payment made
pursuant to Clause 14 (Taxes), such Finance Party shall, to the
extent that it can do so without prejudice to the retention of the
amount of such credit, relief, remission or repayment, pay to such
Obligor such amount as such Finance Party shall, in its sole opinion,
determine to be the amount which will leave such Finance Party (after
such payment) in no worse after-tax position than it would have been
in had the additional payment in question not been required to be
made by such Obligor.
15.4 Tax Credit Clawback
If any Finance Party makes any payment to an Obligor pursuant to
Clause 15.3 (Tax Credit Payment) and such Finance Party subsequently
determines, in its sole opinion, that the credit, relief, remission
or repayment in respect of which such payment was made was not
available or has been withdrawn or that it was unable to use such
credit, relief, remission or repayment in full, such Obligor shall
reimburse such Finance Party such amount as such Finance Party
determines, in its sole opinion, is necessary to place it in the same
after-tax position as it would have been in if such credit, relief,
remission or repayment had been obtained and fully used and retained
by such Finance Party.
15.5 Tax and Other Affairs
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever
manner it thinks fit, oblige any Finance Party to claim any credit,
relief, remission or repayment in respect of any payment under Clause
14 (Taxes) in priority to any other credit, relief, remission or
repayment available to it nor oblige any Finance Party to disclose
any information relating to its tax or other affairs or any
computations in respect thereof.
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16. INCREASED COSTS
16.1 Increased Costs
If, by reason of the occurrence, in each case after the Execution
Date, of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any such new law or with
any request or requirement relating to the maintenance of capital or
any other request from or requirement of any central bank or other
fiscal, monetary or other authority (in each case, where a request or
requirement that does not have the force of law is a request or
requirement with which financial institutions subject to such request
or requirement are generally accustomed to comply):
16.1.1 a Bank or any holding company of such Bank is unable to
obtain the rate of return on its capital which it would have
been able to obtain but for such Bank's entering into or
assuming or maintaining a commitment or performing its
obligations under the Finance Documents;
16.1.2 a Bank or any holding company of such Bank incurs a cost as
a result of such Bank's entering into or assuming or
maintaining a commitment or performing its obligations under
the Finance Documents; or
16.1.3 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining such Bank's
share of the Advances or any Unpaid Sum,
then the Borrower(s) of the relevant Facility (acting through the
Parent) shall, within three Business Days of a demand of the Agent,
pay to the Agent for the account of that Bank amounts sufficient to
indemnify that Bank or to enable that Bank to indemnify its holding
company from and against, as the case may be, (i) such reduction in
the rate of return on its capital, (ii) such cost or (iii) such
increased cost.
16.2 Increased Costs Claims
A Bank intending to make a claim pursuant to Clause 16.1 (Increased
Costs) shall notify the Agent of the event giving rise to such claim,
whereupon the Agent shall notify the Parent thereof.
16.3 Exclusions
Notwithstanding the foregoing provisions of this Clause 16, no Bank
shall be entitled to make any claim under this Clause 16 in respect
of any reduction in the rate of return on capital, cost or increased
cost:
16.3.1 attributable to a deduction or withholding for or on account
of tax from a payment under a Finance Document required by
law to be made by an Obligor and compensated for pursuant to
the provisions of Clause 14.1 (Tax Gross-Up) (or would have
been compensated for under Clause 14.1 (Tax Gross-Up) but
was not so compensated solely because of Clause 14.4
(Excluded Claims) or Clause 14.5 (Treaty Lenders));
16.3.2 compensated by Clause 14.2 (Tax Indemnity) (or would have
been compensated for under Clause 14.2 (Tax Indemnity) but
was not so compensated solely
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because of one of the exclusions set out in sub-clauses
14.2.1 to 14.2.3 of Clause 14.2 (Tax Indemnity));
16.3.3 compensated by the Mandatory Cost Rate; or
16.3.4 attributable to the wilful breach by the relevant Finance
Party or its affiliates of any law or regulation.
17. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make,
fund or allow to remain outstanding all or part of its share of the
Advances, then that Bank shall, promptly after becoming aware of the
same, deliver to the Parent through the Agent a notice to that effect
and:
17.1.1 such Bank shall not thereafter be obliged to participate in
the making of any Advances and the amount of its Available
Revolving Commitment shall be immediately reduced to zero;
and
17.1.2 if the Agent on behalf of such Bank so requires, each
Borrower which has drawn an Advance shall no later than the
last day permitted by law repay such Bank's share of any
outstanding Advances together with accrued interest thereon
and all other amounts owing to such Bank under the Finance
Documents and any repayment of Term Advances so made shall
reduce rateably the remaining obligations of the
Post-Novation Borrower under Clause 11.1 (Term Repayment
Instalments).
18. MITIGATION
If, in respect of any Bank, circumstances arise which would or would
upon the giving of notice result in:
18.1.1 an increase in any sum payable to it or for its account
pursuant to Clause 14.1 (Tax Gross-up);
18.1.2 a claim for indemnification pursuant to Clause 14.2 (Tax
Indemnity) or Clause 16.1 (Increased Costs); or
18.1.3 the reduction of its Available Revolving Commitment to zero
or any repayment to be made pursuant to Clause 17
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying
the rights of such Bank or the obligations of the Obligors or the
Parent under any of the Clauses referred to above, such Bank shall
promptly upon becoming aware of such circumstances notify the Agent
thereof and, in consultation with the Agent and the Parent and to the
extent that it can do so lawfully, take reasonable steps (including a
change of location of its Facility Office or the transfer of its
rights, benefits and obligations under the Finance Documents to
another financial institution acceptable to the Parent and willing to
participate in any Facility in which such Bank has participated) to
mitigate the effects of such circumstances, provided that such Bank
shall be under no obligation to take any such action if, in the
opinion of such Bank, to do so might have any adverse effect upon its
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business, operations or financial condition (other than any minor
costs and expenses of an administrative nature).
19. REPRESENTATIONS
19.1 Historic Representations
Each of the Obligors, the Pre-Novation Borrower, CWC Holdings, the
Parent, New NTL and the Post-Novation Borrower made the
representations and warranties specified in Schedule 17 (Historic
Representations) as having been made by it at the times specified
therein.
19.2 Representing Parties
19.2.1 On the date of the Second Restatement Amendment Agreement
and the dates referred to in Clause 19.16 (Repetition of
Representations), each Obligor makes the representations and
warranties set out in Clause 19.4 (Status and Due
Authorisation) to Clause 19.8 (No Material Proceedings) and
Clause 19.11 (Execution of Finance Documents) to Clause
19.13 (Security Interest) with respect to itself.
19.2.2 On the date of the Second Restatement Amendment Agreement
and the dates referred to in Clause 19.16 (Repetition of
Representations), the Parent makes the representations and
warranties set out in:
(a) Clause 19.9 (Audited Financial Statements), Clause
19.10 (Budgets), and Clause 19.15 (Existing Group
Indebtedness); and
(b) Clause 19.7 (No Material Defaults), Clause 19.8
(No Material Proceedings), Clause 19.12
(Intellectual Property) and Clause 19.13 (Security
Interest) with respect to each member of the UK
Group.
19.2.3 On the Plan Effective Date and the dates referred to in
Clause 19.16 (Repetition of Representations) occurring
thereafter, New NTL and the Parent each makes the
representations and warranties set out in Clause 19.14
(Group Structure).
19.2.4 On the date of the Second Restatement Amendment Agreement
and the dates referred to in Clause 19.16 (Repetition of
Representations), New NTL makes the representations and
warranties set out in Clause 19.4 (Status and Due
Authorisation), Clause 19.6 (Binding Obligations), Clause
19.11 (Execution of Finance Documents) and Clause 19.13
(Security Interest) with respect to itself, and the
representation and warranty set out in sub-clause 19.15.1 of
Clause 19.15 (Existing Group Indebtedness), and on the Plan
Effective Date and each of the dates referred to in Clause
19.16 (Repetition of Representations) falling after the Plan
Effective Date, New NTL makes the representation and
warranty set out in Clause 19.5 (No Immunity) with respect
to itself.
19.3 Reliance on Representations and Warranties
Each of the Parent, New NTL and each Obligor acknowledges that the
Finance Parties have entered into the Finance Documents in reliance
on the representations and warranties referred to at Clause 19.1
(Historic Representations) and Clause 19.2 (Representing Parties).
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19.4 Status and Due Authorisation
It is duly organised under the laws of the jurisdiction in which it
is established or incorporated with power to enter into each of the
Finance Documents to which it is a party and to exercise its rights
and perform its obligations thereunder and all corporate and other
action required to authorise its execution of each of the Finance
Documents to which it is a party and its performance of its
obligations thereunder has been duly taken. No limit on its powers
will be exceeded as a result of the borrowings, granting of security
or giving of guarantees contemplated by the Finance Documents to
which it is a party.
19.5 No Immunity
In any proceedings taken in the jurisdiction in which it is
incorporated or established in relation to any Finance Document to
which it is party, it is not entitled to claim for itself or any of
its assets immunity from suit, execution, attachment or other legal
process.
19.6 Binding Obligations
The obligations expressed to be assumed by it in each Finance
Document to which it is expressed to be a party are legal and valid
obligations and (subject to the Reservations) binding on it and
enforceable against it in accordance with the terms thereof.
19.7 No Material Defaults
No Obligor nor any member of the UK Group is in breach of or in
default under any agreement to which it is a party (including,
without limitation, the Material Commercial Contracts) or which is
binding on it or any of its assets and no party has terminated or is
entitled to terminate (on the basis of any breach of or default
thereunder) any such agreement, to an extent or in a manner which
could reasonably be expected to have a Material Adverse Effect.
19.8 No Material Proceedings
No action or administrative proceeding of or before any court,
arbitrator or agency (including, but not limited to, investigative
proceedings) which could reasonably be expected to have a Material
Adverse Effect has been started or threatened against it or any of
its assets.
19.9 Audited Financial Statements
The most recent consolidated audited financial statements of the UK
Group:
19.9.1 were prepared in accordance with accounting principles
generally accepted in its jurisdiction of incorporation and
consistently applied;
19.9.2 disclose all material liabilities (contingent or otherwise)
and all material unrealised or anticipated losses of any
member of the UK Group to the extent required to be
disclosed by generally accepted accounting principles in the
United Kingdom; and
19.9.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of the UK Group during
the relevant financial year.
19.10 Budgets
It:
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19.10.1 regards (as at the date each Budget is delivered to the
Agent) as neither unreasonable, nor to any material extent
unattainable, any of the forecasts or projections set out in
the latest Budget delivered under Clause 20.6 (Budgets); and
19.10.2 believes (having made all reasonable enquiries) the
assumptions, upon which the forecasts and projections
contained in the latest Budget delivered under Clause 20.6
(Budgets) are based, to be fair and reasonable.
19.11 Execution of Finance Documents
Its execution of each Finance Document to which it is a party, the
exercise of its rights and the performance of its obligations
thereunder do not and will not:
19.11.1 conflict with any agreement, mortgage, bond or other
instrument or treaty to which it is party or which is
binding upon it or any of its assets in a manner that could
reasonably be expected to have a Material Adverse Effect;
19.11.2 conflict with its constitutive documents and rules and
regulations; or
19.11.3 conflict with any applicable law.
19.12 Intellectual Property
It is not aware of any adverse circumstance relating to the validity,
subsistence or use of any of its and, in the case of the Parent, any
member of the UK Group's Intellectual Property which could reasonably
be expected to have a Material Adverse Effect.
19.13 Security Interest
19.13.1 Subject (in each case) to the Reservations, each Security
Document and Second Security Document creates the security
interest which that Security Document or Second Security
Document purports to create or, if that Security Document or
Second Security Document purports to evidence a security
interest, accurately evidences a security interest which has
been validly created and each security interest ranks in
priority (save in respect of, if and to the extent
applicable, Permitted Encumbrances) as specified in the
Security Document or Second Security Document creating or
evidencing that interest.
19.13.2 The shares of any UK Group member which are subject to an
Encumbrance under the Security Documents and Second Security
Documents are fully paid and not subject to any option to
purchase or similar rights and the constitutional documents
of any such UK Group member do not and could not restrict or
inhibit (whether absolutely, partly, under a discretionary
power or otherwise) any transfer of such shares pursuant to
enforcement of the Security Documents or the Second Security
Documents.
19.13.3 For the avoidance of doubt, the Security is intended to
secure all amounts outstanding under the Finance Documents
from time to time, including without limitation, all amounts
made available by the Term Banks and the Additional Finance
Providers.
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19.14 Group Structure
Each of:
19.14.1 the corporate structure of the UK Group and the Covenant
Group set out in the structure chart delivered to the Agent
as a condition precedent to the Second Restatement Amendment
Effective Time is, true, complete and accurate as at the
Plan Effective Date; and
19.14.2 the corporate structure of the UK Group and the Covenant
Group set out in any structure chart delivered to the Agent
pursuant to Clause 22.30 (Revised Group Structure) is true,
complete and accurate as at the date of its delivery to the
Agent.
19.15 Existing Group Indebtedness
19.15.1 NTL UK owes no Financial Indebtedness to any other member of
the Covenant Group other than:
(a) New Holdco; and
(b) Financial Indebtedness owed under, or in
connection with any refinancing of, the NTL
Delaware Subordinated Note.
19.15.2 The Parent owes no Financial Indebtedness to New NTL or any
of the Parent's other holding companies, other than NTL UK.
19.16 Repetition of Representations
The Repeated Representations shall be deemed to be repeated by each
party who originally made the representation, on each date on which
(a) a Revolving Advance is or is to be made and (b) a company becomes
an Additional Obligor, by reference to the facts and circumstances
then existing provided that Clause 19.9 (Audited Financial
Statements) shall be deemed to be repeated by reference to the
relevant audited financial statements most recently delivered under
Clause 20.1 (Annual Statements).
19.17 Additional Representations at the Second Restatement Amendment
Effective Time
Each of New NTL and the Parent represents and warrants, and in the
case of sub-clause 19.17.2 (Disclosure of Information) each Obligor
also represents and warrants, at the Second Restatement Amendment
Effective Time, that:
19.17.1 Tax Consequences of Restructuring: The recapitalisation and
restructuring of the Group as contemplated in the Plan does
not have any material and adverse tax implications for the
Covenant Group (or any member thereof) and/or the UK Group
(or any member thereof), other than to the extent
specifically disclosed at paragraph 4 (Loss of NOLs) of
Section X.D (Certain Bankruptcy Considerations) of the
Disclosure Statement or as disclosed to the Agent in writing
at or prior to the Second Restatement Amendment Effective
Time;
19.17.2 Disclosure of Information: To the best of its knowledge,
information and belief, having made all reasonable efforts
to make due and careful enquiry, it has made full disclosure
of all material facts and circumstances in respect of the
recapitalisation and restructuring of the Group as
contemplated in the Plan and
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all information so disclosed is true, complete and accurate
in all material respects; and
19.17.3 Historic Financial Information: The historic financial
statements of the Group (excluding, for the avoidance of
doubt, any projections or statements related to the
projections, contained or referenced therein) contained at
Exhibit E of the Disclosure Statement were prepared in
accordance with the books and records of the Group and in
compliance with United States Generally Accepted Accounting
Principles (except as noted therein or in the notes thereto)
and fairly present, in all material respects, the financial
condition, results of operations and cash flows of the Group
(or the relevant part of the Group) in respect of the
periods to which such financial statements relate.
20. FINANCIAL INFORMATION
20.1 Annual Statements
As soon as the same become available, but in any event within 120
days after the end of each of the Parent's or, as the case may be,
New NTL's financial years, the Parent shall deliver to the Agent, in
sufficient copies for the Banks:
20.1.1 the consolidated financial statements of the Group for such
financial year, audited by an internationally recognised
firm of independent auditors; and
20.1.2 the consolidated financial statements of the UK Group for
such financial year, audited by an internationally
recognised firm of independent auditors licensed to practice
in England and Wales.
20.2 Quarterly Statements
As soon as the same become available, but in any event within 45 days
after the end of each Financial Quarter the Parent shall deliver to
the Agent, in sufficient copies for the Banks:
20.2.1 the unaudited consolidated financial statements of the Group
for such Financial Quarter save that in the case of the last
Financial Quarter of each financial year of New NTL, the
Parent shall only be obliged to deliver to the Agent the
unaudited consolidated management accounts of the Group for
such period; and
20.2.2 the unaudited consolidated financial statements of the UK
Group for such Financial Quarter.
20.3 Financial Statements of Borrowers
To the extent that the same are requested by any Bank to enable it to
comply with any law or any requirement of any central bank or other
fiscal, monetary or other authority, the Parent shall, upon the
request of the Agent, deliver to the Agent a Borrower's most recent
annual financial statements which are in final form and which the
relevant Borrower has prepared prior to such request (including any
balance sheet and profit and loss account if the same have been
prepared) in order to comply with any legal obligation on the
relevant Borrower to produce annual financial statements. Any such
annual financial statements shall be delivered to the Agent within 30
days of such financial statements being requested by the Agent
provided that if its most recent financial
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statements are in draft form and will not be in final form within
thirty days of the time of any such request, the relevant Borrower
shall notify the Agent thereof together with details of when such
financial statements are likely to be in final form, and shall
deliver the final form financial statements as soon as reasonably
practical thereafter.
20.4 Requirements as to Financial Statements
The Parent shall ensure that:
20.4.1 each set of financial statements delivered by it pursuant to
sub-clause 20.1.1 of Clause 20.1 (Annual Statements) and
sub-clause 20.2.1 of Clause 20.2 (Quarterly Statements)
(other than in the case of unaudited consolidated management
statements of the Group for the last Financial Quarter of
each financial year of New NTL) is certified by one of its
Authorised Signatories as fairly presenting, in all material
respects, the financial condition, results of operations and
cash flows of the Group in respect of the period to which
those financial statements relate, subject (in the case of
any financial statements delivered pursuant to sub-clause
20.2.1 of Clause 20.2 (Quarterly Statements)) to changes
resulting from audit and normal year end adjustments;
20.4.2 each set of unaudited consolidated management accounts of
the Group for the last Financial Quarter of each financial
year of New NTL delivered by it pursuant to sub-clause
20.2.1 of Clause 20.2 (Quarterly Statements) is certified by
one of the Parent's Authorised Signatories as:
(a) having been prepared by the management of New NTL
with such degree of skill and care as might
reasonably be expected in the preparation of
management accounts; and
(b) correctly showing (within the confines of the
information contained in such unaudited
consolidated management accounts) the
understanding of the management of New NTL of the
financial condition of the Group as at the end of
the period to which those unaudited consolidated
management accounts relate and of the results of
the Group's operations during such period;
20.4.3 each set of financial statements delivered by it pursuant to
sub-clause 20.1.2 of Clause 20.1 (Annual Statements) and
sub-clause 20.2.2 of Clause 20.2 (Quarterly Statements) is
certified by one of its Authorised Signatories as giving a
true and fair view of the consolidated financial condition
of the UK Group as at the end of the period to which those
financial statements relate and of the results of the UK
Group's operations during such period, subject (in the case
of any financial statements delivered pursuant to sub-clause
20.2.2 of Clause 20.2 (Quarterly Statements)) to changes
resulting from audit and normal year end adjustments; and
20.4.4 each set of financial statements delivered by it pursuant to
sub-clause 20.1.2 of Clause 20.1 (Annual Statements) (other
than the consolidated financial statements delivered
pursuant to sub-clause 20.1.2 of Clause 20.1 (Annual
Statements) in respect of the Parent's financial year ended
31 December 2002)
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and sub-clause 20.2.2 of Clause 20.2 (Quarterly Statements)
(other than the consolidated financial statements delivered
pursuant to sub-clause 20.2.2 of Clause 20.2 (Quarterly
Statements) in respect of the Financial Quarter ended 31
December 2002) is accompanied by a comparison to the
projections in the Budget for the financial year or, as the
case may be, Financial Quarter, to which those financial
statements relate.
20.5 Compliance Certificates
The Parent shall ensure that:
20.5.1 each set of consolidated financial statements delivered by
it pursuant to Clause 20.1 (Annual Statements) (other than
the consolidated financial statements delivered pursuant to
Clause 20.1 (Annual Statements) in respect of the Parent's
and New NTL's financial year ended 31 December 2002) or
Clause 20.2 (Quarterly Statements) (other than the
consolidated financial statements delivered pursuant to
Clause 20.2 (Quarterly Statements) in respect of the
Financial Quarter ended 31 December 2002) is accompanied by
a Compliance Certificate signed by two of its Authorised
Signatories; and
20.5.2 each Compliance Certificate delivered by it after the Second
Restatement Amendment Effective Time, up to and including
the Compliance Certificate delivered in respect of the sixth
complete Financial Quarter which ends after the Second
Restatement Amendment Effective Time, shall be copied to the
Reporting Accountants.
In addition, the Parent shall ensure that each Compliance Certificate
delivered by it after the Second Restatement Amendment Effective Time
has attached thereto the information specified in sub-clause 22.27.2
of Clause 22.27 (Transactions with Affiliates).
20.6 Budgets
The Parent shall, as soon as the same become available, and in any
event no later than 60 days after the beginning of each of its
financial years, deliver to the Agent in sufficient copies for the
Banks an annual budget (in a form agreed with the Agent) prepared by
reference to each Financial Quarter in respect of such financial year
including:
20.6.1 forecasts of projected disposals (including timing and
amount thereof) on a consolidated basis of the UK Group for
such financial year;
20.6.2 projected annual profit and loss accounts (including
projected turnover and operating costs) and projected
balance sheets and cash flow statements, together with the
main operating assumptions relating thereto, on a quarterly
basis, for such financial year on a consolidated basis for
the UK Group;
20.6.3 revisions to the projections set out in the Updated Business
Plan, together with the main operating assumptions relating
thereto, for such financial year until the Term Final
Maturity Date, based on the financial condition and
performance and prospects of the UK Group at such time;
20.6.4 projected Permitted Payments to be made during such
financial year and (in respect of paragraph (a) of the
definition of Permitted Payments) the related
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Financial Indebtedness of the relevant members of the
Covenant Group to which those Permitted Payments will
relate;
20.6.5 Capital Expenditure projected to accrue on a quarterly basis
for such financial year on a consolidated basis for the UK
group;
20.6.6 projected EBIT and EBITDA as at the end of each Financial
Quarter in such financial year, for the UK Group; and
20.6.7 a qualitative analysis and commentary from the management on
its proposed activities for such financial year.
The Parent shall provide the Agent with details of any material
changes in the projections delivered under this Clause 20.6 as soon
as reasonably practicable after it becomes aware of any such change.
20.7 Information for Reporting Accountants to prepare Monthly Performance
Update Report
20.7.1 The Parent shall, and the Parent shall (to the extent
necessary) procure that each member of the UK Group shall
(to the extent necessary) ensure that each member of the
Extended UK Group shall, provide the Reporting Accountants
with:
(a) by no later than the last Business Day of the
calendar month which succeeds the month (the
"relevant month") with respect to which any
Monthly Performance Update Report is to be
prepared, a report on the performance of the
Extended UK Group during such relevant month, such
report to include the Required Monthly Information
for such month;
(b) as soon as reasonably practicable after receipt of
any reasonable request from the Reporting
Accountants for further particulars in relation to
the Required Monthly Information, such further
particulars; and
(c) as soon as reasonably practicable after receipt of
any request, access to, and permission to inspect,
the assets, books, records and premises of the
Parent and each member of the Group, in each case
to the extent reasonably requested by the
Reporting Accountants in order to enable the
Reporting Accountants to prepare the Monthly
Performance Update Report within the time periods
set out in the Reporting Accountants Mandate
Letter.
20.7.2 Each of the Parent and the Post-Novation Borrower shall
comply with their respective payment obligations under the
Reporting Accountants Mandate Letter in the amounts
specified therein, in each case within 21 days of such
payment obligations arising.
20.7.3 The obligations of the Obligors under this Clause 20.7 shall
continue until such time as the Agent (acting on the
instructions of an Instructing Group) determines that the
Monthly Performance Update Reports are no longer necessary
provided that, without prejudice to the foregoing, the Agent
will (in
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good faith) review the ongoing need for the Monthly
Performance Update Reports on the date falling 18 months
after the Second Restatement Amendment Effective Date by
reference to the then current performance of the UK Group
and if the Agent (acting on the instructions of an
Instructing Group) informs the Parent that the result of
such review is that there is no ongoing need for Monthly
Performance Update Reports no member of the Group shall have
any further obligations under this Clause 20.7.
20.7.4 The Banks hereby consent to the Reporting Accountants
providing a copy of each Monthly Performance Update Report
(with such deletions as the Reporting Accountants and/or the
Agent may deem appropriate) to the lenders under the New NTL
Exit Facility.
20.8 Hedging
The Parent will promptly:
20.8.1 notify the Agent upon either it or any member of the UK
Group entering into any Hedging Agreement; and
20.8.2 notify the Agent of any amendments made to the Hedging
Strategy from time to time.
20.9 Asset Passthroughs and Funding Passthroughs
The Parent shall, at least five Business Days prior to effecting
either an Asset Passthrough or a Funding Passthrough provide the
Agent with:
20.9.1 written notice of the proposed Asset Passthrough or Funding
Passthrough;
20.9.2 a summary of the steps to be implemented in connection with
the proposed Asset Passthrough or Funding Passthrough;
20.9.3 a certificate from an Authorised Signatory of the Parent
confirming that the proposed Asset Passthrough or Funding
Passthrough will satisfy all of the requirements of the
definition thereof; and
20.9.4 such other information in relation to the proposed Asset
Passthrough or Funding Passthrough as the Agent may
reasonably request.
20.10 Other Financial Information
20.10.1 The Parent shall ensure that the consolidated financial
statements delivered by it pursuant to Clause 20.1 (Annual
Statements) in respect of the Parent's and New NTL's
financial year ended 31 December 2002 is accompanied by a
statement (for information purposes only) setting out the
financial condition and performance of the Group and the UK
Group for such financial year as if financial covenants set
out at Clause 21 (Financial Condition) were being tested at
such time.
20.10.2 Each Obligor shall, and the Parent shall procure that each
member of the UK Group shall, from time to time on the
request of the Agent, furnish the Agent with such
information about the business, condition (financial or
otherwise), operations, performance, properties or prospects
of, respectively, New NTL,
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such Obligor and the relevant member of the UK Group (or, as
the case may be, the UK Group) as the Agent or any Bank
(through the Agent) may reasonably require provided that
neither the Parent nor any Obligor shall be under any
obligation to supply any information the supply of which
would be contrary to any confidentiality obligation binding
on it.
20.11 Accounting Policies
The Parent shall ensure that:
20.11.1 each set of financial statements delivered pursuant to
Clause 20.1 (Annual Statements) and Clause 20.2 (Quarterly
Statements) (other than the unaudited consolidated
management accounts of the Group) is prepared using
accounting policies, practices, procedures and, in the case
of annual financial statements, accounting reference dates
consistent with those applied in the preparation of the
relevant Second Restatement Amendment Financial Statements;
and
20.11.2 each set of unaudited consolidated management accounts of
the Group delivered pursuant to Clause 20.2 (Quarterly
Statements) is prepared on a basis consistent with the basis
agreed between New NTL and the Reporting Accountants prior
to the date of the Second Restatement Amendment Agreement as
the basis upon which the unaudited consolidated management
accounts of the Group will be prepared,
unless, in relation to any such set of financial statements, (other
than the unaudited consolidated management accounts of the Group) the
Parent notifies the Agent that there have been one or more changes in
any such accounting policies, practices, procedures or accounting
reference dates or, in relation to any such set of unaudited
consolidated management accounts of the Group, the Parent notifies
the Agent that there have been one or more changes in the basis upon
which such unaudited consolidated management accounts have been
prepared and:
(a) (save in respect of any change in the basis upon
which unaudited consolidated management accounts
were prepared) the auditors of New NTL or the
Parent (as the case may be) provide:
(i) a description of the changes and the
adjustments which would be required to be
made to those financial statements in
order to cause them to use the accounting
policies, practices, procedures and, in
the case of annual financial statements,
accounting reference dates upon which the
relevant Second Restatement Amendment
Financial Statements were prepared; and
(ii) sufficient information, in such detail and
format as may be reasonably required by
the Agent, to enable the Banks to make an
accurate comparison between the financial
position indicated by those financial
statements and the relevant Second
Restatement Amendment Financial
Statements,
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in which case any reference in this Agreement to
those financial statements shall be construed as a
reference to those financial statements as
adjusted to reflect the basis upon which the
relevant Second Restatement Amendment Financial
Statements were prepared; or
(b) in respect of any change in the basis upon which
unaudited consolidated management accounts were
prepared, New NTL provides:
(i) a description of the changes and the
adjustments which would be required to be
made to those unaudited consolidated
management accounts in order to cause them
to be prepared on the basis agreed between
New NTL and the Reporting Accountants
referred to at sub-clause 20.11.2 of this
Clause 20.11; and
(ii) sufficient information, in such detail and
format as may be reasonably required by
the Agent, to enable the Banks to make an
accurate comparison between the financial
position indicated by those unaudited
consolidated management accounts and the
first set of unaudited consolidated
management accounts delivered pursuant to
Clause 20.2 (Quarterly Statements) after
the date of the Second Restatement
Amendment Agreement,
in which case any reference in this Agreement to
those unaudited consolidated management accounts
shall be construed as a reference to those
unaudited consolidated management accounts as
adjusted to reflect the basis upon which the first
set of unaudited consolidated management accounts
delivered pursuant to Clause 20.2 (Quarterly
Statements) after the date of the Second
Restatement Amendment Agreement were prepared; or
20.11.3 the Parent notifies the Agent that it is no longer
practicable to test compliance with the financial covenants
set out in Clause 21.1 (UK Group Financial Condition) in the
case of the Parent and Clause 21.2 (Group Financial
Condition) in the case of New NTL against the financial
statements received pursuant to this Clause 20, in which
case:
(a) the Agent and the Parent shall enter into
negotiations with a view to agreeing alternative
financial covenants to replace those contained in
Clause 21.1 (UK Group Financial Condition) or
Clause 21.2 (Group Financial Condition)
respectively in order to maintain a consistent
basis for such financial covenants;
(b) if, after three months commencing on the date of
the notice given to the Agent pursuant to this
sub-clause 20.11.3 of this Clause 20.11, the Agent
and the Parent cannot agree alternative financial
covenants which are acceptable to an Instructing
Group, the Agent shall refer the matter to such
internationally recognised accounting firm as may
be agreed between the Parent and an Instructing
Group for determination of the adjustments
required to be made to such financial statements
or the calculation of such
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ratios to take account of such change, such
determination to be binding on the parties hereto,
provided that pending such determination the
Parent shall continue to prepare financial
statements and calculate such ratios in accordance
with sub-clause 20.11.2(a) and sub-clause
20.11.2(b) of this Clause 20.11; and
(c) New NTL agrees that it shall be bound by (i) any
alternative financial covenants agreed between the
Agent and the Parent pursuant to paragraph (a) of
this sub-clause 20.11.3 of this Clause 20.11 and
(ii) any determination of adjustments required to
be made to financial statements or any adjustment
required to be made to the financial covenants by
an internationally recognised accounting firm
pursuant to paragraph (b) of this sub-clause
20.11.3 of this Clause 20.11.
20.12 General Information
The Parent shall, as soon as reasonably practicable, furnish the
Agent with such general information as it or any member of the UK
Group is required by law to supply or make available to its (or such
member of the UK Group's) (a) shareholders (in their capacity as
such) or (b) creditors generally or any class thereof provided that
the Parent shall not be required to furnish the Agent with such
general information which a member of the UK Group (other than the
Parent) is required by law to supply to its shareholders (in their
capacity as such) for so long as such member of the UK Group is a
wholly owned subsidiary of the Parent unless a specific item of
information is requested by the Agent or any Bank (in which case such
item of information shall be furnished to the Agent).
20.13 Litigation and Government or Regulatory Enquiry
New NTL (in respect of itself) and the Parent (in respect of itself
and each other member of the UK Group) shall advise the Agent
forthwith of the details of:
20.13.1 any litigation, arbitration or administrative proceedings
pending or threatened against it or, as the case may be, any
other member of the UK Group which could reasonably be
expected to result in liability of it or, as the case may
be, such other member of the UK Group in an amount in excess
of (pound)5,000,000 (or its equivalent); and
20.13.2 any notice or communication received by it or, as the case
may be, any other member of the UK Group from, or any actual
or potential enquiry, investigation or proceedings commenced
by, any government, court or regulatory agency or authority,
if such notice, communication, enquiry, investigation or
proceedings could reasonably be expected to have a Material
Adverse Effect.
20.14 New NTL's obligations in respect of Group financial statements
20.14.1 New NTL shall deliver to the Parent the consolidated
financial statements of the Group for each of its financial
years, audited by an internationally recognised firm of
independent auditors, in sufficient time to enable the
Parent to comply with its obligations under sub-clause
20.1.1 of Clause 20.1 (Annual Statements).
20.14.2 New NTL shall deliver to the Parent the unaudited
consolidated financial statements or, as the case may be,
unaudited consolidated management
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accounts, of the Group for each Financial Quarter in
sufficient time to enable the Parent to comply with its
obligations under sub-clause 20.2.1 of Clause 20.2
(Quarterly Statements).
20.15 Delivery of information to Banks
The Parent may satisfy its obligation under this Agreement to deliver
sufficient copies of any document or information for the Banks or to
deliver any other information to the Banks by delivering one copy of
the relevant document or information to the Agent with a request that
the Agent deliver that document or information to the Banks in the
manner in which it deems most appropriate (including by posting such
information onto an electronic website designated by the Agent for
such purpose) if:
20.15.1 the Agent expressly agrees that it will accept one copy only
of the relevant document or information (and the Agent
hereby agrees to accept one copy of the documents referred
to in Clauses 20.1 (Annual Statements), 20.2 (Quarterly
Statements) and 20.6 (Budgets) for the purposes of this
Clause 20.15); and
20.15.2 the document or information is in a format previously agreed
between the Parent and the Agent (and the Agent hereby
acknowledges that the format of the documents most recently
delivered prior to the date of the Second Restatement
Amendment Agreement, pursuant to clauses 21.1 (Annual
Statements), 21.2 (Quarterly Statements) and 21.5 (Budgets)
of this Agreement in the form scheduled to the First
Restatement Amendment Agreement are an agreed format for the
purposes of this Clause 20.15).
21. FINANCIAL CONDITION
21.1 UK Group Financial Condition
The Parent shall ensure that the financial condition of the UK Group
shall be such that:
21.1.1 Ratio of UK Group Net Consolidated Total Debt to
Consolidated Annualised EBITDA of the UK Group
(a) The ratio of the UK Group Net Consolidated Total
Debt on each of the Quarter Dates specified in
column one below to the Consolidated Annualised
EBITDA of the UK Group for the Relevant Period
ended on that Quarter Date shall be no greater
than the ratio set out in column two below
corresponding to that Quarter Date.
<table>
<caption>
----------------------------------------------- --------------------------------------------------
Column One Column Two
Quarter Date UK Group Net Consolidated Total Debt:
Consolidated Annualised EBITDA of the UK Group
----------------------------------------------- --------------------------------------------------
<s> <c> <c>
31 March 2003 6.08:1
----------------------------------------------- --------------------------------------------------
30 June 2003 6.11:1
----------------------------------------------- --------------------------------------------------
30 September 2003 5.86:1
----------------------------------------------- --------------------------------------------------
31 December 2003 5.48:1
----------------------------------------------- --------------------------------------------------
31 March 2004 5.34:1
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----------------------------------------------- --------------------------------------------------
30 June 2004 5.22:1
----------------------------------------------- --------------------------------------------------
30 September 2004 5.12:1
----------------------------------------------- --------------------------------------------------
31 December 2004 4.93:1
----------------------------------------------- --------------------------------------------------
31 March 2005 4.75:1
----------------------------------------------- --------------------------------------------------
30 June 2005 4.52:1
----------------------------------------------- --------------------------------------------------
30 September 2005 4.31:1
----------------------------------------------- --------------------------------------------------
31 December 2005 4.10:1
----------------------------------------------- --------------------------------------------------
31 March 2006 3.90:1
----------------------------------------------- --------------------------------------------------
30 June 2006 3.70:1
----------------------------------------------- --------------------------------------------------
30 September 2006 3.52:1
----------------------------------------------- --------------------------------------------------
31 December 2006 3.36:1
----------------------------------------------- --------------------------------------------------
31 March 2007 3.21:1
----------------------------------------------- --------------------------------------------------
30 June 2007 3.06:1
----------------------------------------------- --------------------------------------------------
</table>
Ratio of UK Group Net Consolidated Total Debt to
Consolidated EBITDA of the UK Group
(b) The ratio of UK Group Net Consolidated Total Debt
on each of the Quarter Dates specified in column
one below to the Consolidated EBITDA of the UK
Group for the financial year of the Parent ended
on that Quarter Date shall be no greater than the
ratio set out in column two below corresponding to
that Quarter Date.
<table>
<caption>
----------------------------------------------- --------------------------------------------------
Column One Column Two
Quarter Date UK Group Net Total Debt: Consolidated EBITDA of
the UK Group
----------------------------------------------- --------------------------------------------------
<s> <c> <c>
31 December 2003 5.79:1
----------------------------------------------- --------------------------------------------------
31 December 2004 5.06:1
----------------------------------------------- --------------------------------------------------
31 December 2005 4.27:1
----------------------------------------------- --------------------------------------------------
31 December 2006 3.47:1
----------------------------------------------- --------------------------------------------------
</table>
21.1.2 Ratio of Consolidated EBITDA of the UK Group to the
aggregate of UK Group Total Interest Payable, UK Group
Capital Expenditure and Permitted Payments
(a) The ratio of the Consolidated EBITDA of the UK
Group for each Relevant Period ended on the
Quarter Dates specified in column one below to the
aggregate of (a) UK Group Total Interest Payable
for that Relevant Period; (b) UK Group Capital
Expenditure accrued during that Relevant
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Period; and (c) Permitted Payments made during
that Relevant Period, shall be equal to or greater
than the ratio set out in column two below
corresponding to that Quarter Date.
<table>
<caption>
------------------------------------------------- ------------------------------------------------
Column One Column Two
Quarter Date Consolidated EBITDA of the UK Group: the
aggregate of UK Group Total Interest Payable,
UK Group Capital Expenditure and Permitted
Payments
------------------------------------------------- ------------------------------------------------
<s> <c> <c>
31 March 2003 0.73:1
------------------------------------------------- ------------------------------------------------
30 June 2003 0.76:1
------------------------------------------------- ------------------------------------------------
30 September 2003 0.81:1
------------------------------------------------- ------------------------------------------------
31 December 2003 0.77:1
------------------------------------------------- ------------------------------------------------
31 March 2004 0.79:1
------------------------------------------------- ------------------------------------------------
30 June 2004 0.81:1
------------------------------------------------- ------------------------------------------------
30 September 2004 0.84:1
------------------------------------------------- ------------------------------------------------
31 December 2004 0.86:1
------------------------------------------------- ------------------------------------------------
31 March 2005 0.91:1
------------------------------------------------- ------------------------------------------------
30 June 2005 0.95:1
------------------------------------------------- ------------------------------------------------
30 September 2005 0.98:1
------------------------------------------------- ------------------------------------------------
31 December 2005 1.03:1
------------------------------------------------- ------------------------------------------------
31 March 2006 1.10:1
------------------------------------------------- ------------------------------------------------
30 June 2006 1.15:1
------------------------------------------------- ------------------------------------------------
30 September 2006 1.19:1
------------------------------------------------- ------------------------------------------------
31 December 2006 1.21:1
------------------------------------------------- ------------------------------------------------
31 March 2007 1.24:1
------------------------------------------------- ------------------------------------------------
30 June 2007 1.26:1
------------------------------------------------- ------------------------------------------------
</table>
(b) The ratio of Consolidated EBITDA of the UK Group
for the financial year of the Parent ending on the
Quarter Dates specified in column one below to the
aggregate of (a) UK Group Total Interest Payable
for that financial year; (b) UK Group Capital
Expenditure accrued during that financial year;
and (c) Permitted Payments made during that
financial year, shall be equal to or greater than
the ratio set out in column two below
corresponding to that Quarter Date.
<table>
<caption>
------------------------------------------------- ------------------------------------------------
Column One Column Two
Quarter Date Consolidated EBITDA of the UK Group: the
aggregate of UK Group Total Interest Payable,
UK Group Capital Expenditure and Permitted
Payments
------------------------------------------------- ------------------------------------------------
<s> <c> <c>
31 December 2003 0.77:1
------------------------------------------------- ------------------------------------------------
31 December 2004 0.84:1
------------------------------------------------- ------------------------------------------------
31 December 2005 0.99:1
------------------------------------------------- ------------------------------------------------
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31 December 2006 1.18:1
------------------------------------------------- ------------------------------------------------
</table>
21.1.3 Aggregate amount of Liquidity of members of the UK Group and
members of the Covenant Group
The aggregate amount of Liquidity of members of the UK Group
and of members of the Covenant Group as at each Quarter Date
in column one listed below shall be equal to or greater than
the amount set out in column two below corresponding to such
Quarter Date.
<table>
<caption>
----------------------------------------------------- ----------------------------------------------------
Column One Column Two
Quarter Date Liquidity of members of the UK Group and members
of the Covenant Group
(pound)
----------------------------------------------------- ----------------------------------------------------
<s> <c> <c>
31 March 2003 216,000,000
----------------------------------------------------- ----------------------------------------------------
30 June 2003 216,000,000
----------------------------------------------------- ----------------------------------------------------
30 September 2003 144,000,000
----------------------------------------------------- ----------------------------------------------------
31 December 2003 163,000,000
----------------------------------------------------- ----------------------------------------------------
31 March 2004 95,000,000
----------------------------------------------------- ----------------------------------------------------
30 June 2004 120,000,000
----------------------------------------------------- ----------------------------------------------------
30 September 2004 68,000,000
----------------------------------------------------- ----------------------------------------------------
31 December 2004 107,000,000
----------------------------------------------------- ----------------------------------------------------
31 March 2005 71,000,000
----------------------------------------------------- ----------------------------------------------------
30 June 2005 130,000,000
----------------------------------------------------- ----------------------------------------------------
30 September 2005 93,000,000
----------------------------------------------------- ----------------------------------------------------
31 December 2005 151,000,000
----------------------------------------------------- ----------------------------------------------------
31 March 2006 122,000,000
----------------------------------------------------- ----------------------------------------------------
30 June 2006 194,000,000
----------------------------------------------------- ----------------------------------------------------
30 September 2006 171,000,000
----------------------------------------------------- ----------------------------------------------------
31 December 2006 242,000,000
----------------------------------------------------- ----------------------------------------------------
31 March 2007 221,000,000
----------------------------------------------------- ----------------------------------------------------
30 June 2007 296,000,000
----------------------------------------------------- ----------------------------------------------------
</table>
21.2 Group Financial Condition
New NTL shall ensure that the financial condition of the Group shall
be such that:
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Ratio of Group Net Consolidated Total Debt to Consolidated Annualised
EBITDA of the Group
(a) The ratio of the Group Net Consolidated Total Debt
on each of the Quarter Dates specified in column
one below to the Consolidated Annualised EBITDA of
the Group for the Relevant Period ended on that
Quarter Date shall be no greater than the ratio
set out in column two below corresponding to that
Quarter Date.
<table>
<caption>
----------------------------------------------------- ----------------------------------------------------
Column One Column Two
Quarter Date Group Net Consolidated Total Debt: Consolidated
Annualised EBITDA of the Group
----------------------------------------------------- ----------------------------------------------------
<s> <c> <c>
31 March 2003 6.96:1
----------------------------------------------------- ----------------------------------------------------
30 June 2003 6.95:1
----------------------------------------------------- ----------------------------------------------------
30 September 2003 6.57:1
----------------------------------------------------- ----------------------------------------------------
31 December 2003 6.18:1
----------------------------------------------------- ----------------------------------------------------
31 March 2004 5.98:1
----------------------------------------------------- ----------------------------------------------------
30 June 2004 5.88:1
----------------------------------------------------- ----------------------------------------------------
30 September 2004 5.74:1
----------------------------------------------------- ----------------------------------------------------
31 December 2004 5.51:1
----------------------------------------------------- ----------------------------------------------------
31 March 2005 5.28:1
----------------------------------------------------- ----------------------------------------------------
30 June 2005 5.03:1
----------------------------------------------------- ----------------------------------------------------
30 September 2005 4.79:1
----------------------------------------------------- ----------------------------------------------------
31 December 2005 4.55:1
----------------------------------------------------- ----------------------------------------------------
31 March 2006 4.33:1
----------------------------------------------------- ----------------------------------------------------
30 June 2006 4.11:1
----------------------------------------------------- ----------------------------------------------------
30 September 2006 3.91:1
----------------------------------------------------- ----------------------------------------------------
31 December 2006 3.75:1
----------------------------------------------------- ----------------------------------------------------
31 March 2007 3.59:1
----------------------------------------------------- ----------------------------------------------------
30 June 2007 3.43:1
----------------------------------------------------- ----------------------------------------------------
</table>
Ratio of Group Net Consolidated Total Debt to Consolidated
EBITDA of the Group
(b) The ratio of Group Net Consolidated Total Debt on
each of the Quarter Dates specified in column one
below to the Consolidated EBITDA of the Group for
the financial year of New NTL ended on that
Quarter Date shall be no greater than the ratio
set out in column two below corresponding to that
Quarter Date.
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<table>
<caption>
----------------------------------------------------- ----------------------------------------------------
Column One Column Two
Quarter Date Group Net Consolidated Total Debt: Consolidated
EBITDA of the Group
----------------------------------------------------- ----------------------------------------------------
<s> <c> <c>
31 December 2003 6.54:1
----------------------------------------------------- ----------------------------------------------------
31 December 2004 5.69:1
----------------------------------------------------- ----------------------------------------------------
31 December 2005 4.76:1
----------------------------------------------------- ----------------------------------------------------
31 December 2006 3.88:1
----------------------------------------------------- ----------------------------------------------------
</table>
21.3 Financial Definitions
In this Agreement the following terms have the following meanings:
"Allowable Exceptional Items" means any items treated as exceptional
items which the Reporting Accountants have confirmed to the Agent:
(a) may be treated as exceptional items required to be shown
after operating profit in accordance with paragraph 20 of
Financial Reporting Standard 3 (Reporting Financial
Performance) in the form issued by the Accounting Standards
Board as at the Second Restatement Amendment Effective Date;
or
(b) are charges or credits directly attributable to business
rationalisation and which are:
(i) redundancy termination costs and other costs
directly attributable to redundancies;
(ii) property disposal and closure costs;
(iii) other costs incurred in terminating contracts as a
direct result of rationalisation; or
(iv) professional fees incurred solely in connection
with the costs referred to at paragraphs (i) to
(iii) above.
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"Available Cash" means at any time, cash (in cleared balances)
denominated in sterling (or any other currency freely convertible
into sterling) and credited to an account in the name of a member of
the Covenant Group or the UK Group with an Eligible Deposit Bank and
to which such a member of the Covenant Group or, as the case may be,
the UK Group is alone beneficially entitled and for so long as such
cash is repayable on demand (including any cash held on time deposit
which is capable of being broken and the balance received on same day
notice provided that any such cash shall only be taken into account
net of any penalties or costs which would be incurred in breaking the
relevant time deposit) and repayment of such cash is not contingent
on the prior discharge of any other indebtedness of any member of the
Covenant Group or, as the case may be, the UK Group or of any other
person whatsoever or on the satisfaction of any other condition.
"Capital Expenditure" means expenditure on the acquisition or
improvement of an asset which would be treated as a capital asset in
accordance with generally accepted accounting principles in the
United Kingdom.
"Cash" means at any time, cash (in cleared balances) denominated in
sterling (or any other currency freely convertible into sterling) and
credited to an account in the name of a member of the Group, the
Covenant Group or (as applicable) the UK Group with an Eligible
Deposit Bank and to which such a member of the Group, the Covenant
Group or (as applicable) the UK Group is alone beneficially entitled
and for so long as:
(a) such cash is repayable on demand (including any cash held on
time deposit which is capable of being broken and the
balance received on same day notice provided that any such
cash shall only be taken into account net of any penalties
or costs which would be incurred in breaking the relevant
time deposit) and repayment of such cash is not contingent
on the prior discharge of any other indebtedness of any
member of the Group, the Covenant Group or (as applicable)
the UK Group or of any other person whatsoever or on the
satisfaction of any other condition; or
(b) such cash has been deposited with an Eligible Deposit Bank
as security for any performance bond, guarantee, standby
letter of credit or similar facility the contingent
liabilities relating to such having been included in the
calculation of UK Group Consolidated Total Debt or, as the
case may be, Group Consolidated Total Debt.
"Consolidated Annualised EBITDA" means with respect to any Quarter
Date, the consolidated EBITDA of the UK Group or, as the case may be,
the Group, for the Relevant Period ended on such Quarter Date,
multiplied by two.
"Consolidated EBITDA" means with respect to any Quarter Date, the
consolidated EBITDA of the UK Group or, as the case may be, the
Group, for the Relevant Period or, as the case may be, the financial
year of the Parent or New NTL ended on such Quarter Date.
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"Current Assets" means the aggregate of inventory, trade and other
receivables of each member of the UK Group including sundry debtors
(but excluding cash at bank) maturing within twelve months from the
date of computation.
"Current Liabilities" means the aggregate of all liabilities
(including trade creditors, accruals and provisions and prepayments)
of each member of the UK Group falling due within twelve months from
the date of computation and required to be accounted for as "current
liabilities" under generally accepted accounting principles in the
United Kingdom but excluding consolidated aggregate Indebtedness for
Borrowed Money of the UK Group falling due within such period and any
interest on such Indebtedness for Borrowed Money due in such period.
"EBIT" means, in respect of any period, the consolidated net income
of the UK Group or, as the case may be, the consolidated net income
of the Group for such period adding back (only to the extent, in each
case, deducted in calculating such consolidated net income):
(a) any provision on account of taxation;
(b) any interest (including capitalised interest), commission,
discounts or other fees incurred or payable by any member of
the UK Group or, as the case may be, the Group in respect of
Indebtedness for Borrowed Money;
(c) in relation to the consolidated net income of the UK Group
or the Group, any net amounts paid pursuant to the interest
hedging arrangements entered into in respect of the
Revolving Facility or the Term Facility and, in relation to
the consolidated net income of the Group only, any net
amounts paid pursuant to interest hedging arrangements
entered into in respect of Permitted Covenant Group
Indebtedness;
(d) (i) in the case of the UK Group, any Allowable Exceptional
Items, (ii) in the case of the Group, any Allowable
Exceptional Items included in the calculation of EBIT of the
UK Group and any Allowable Exceptional Items in respect of
any other member of the Group incorporated in a jurisdiction
which requires its financial statements to be governed by
generally accepted accounting principles in the United
Kingdom, Ireland or the United States of America and (iii)
in the case of the UK Group or the Group, any other similar
items agreed between the Parent and the Agent (acting on the
instructions of an Instructing Group); and
(e) separation and integration costs and payments made by any
member of the UK Group under schedule 8 of the Transaction
Agreement.
"EBITDA" means, in respect of any period, EBIT of the UK Group or, as
the case may be, the Group for such period adding back (only to the
extent, in each case, deducted in calculating EBIT):
(a) any amount attributable to amortisation of intangible assets
(including goodwill);
(b) depreciation of tangible assets and capitalised costs and
expenses; and
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(c) amortisation, or the writing off, of transaction expenses in
relation to the Acquisition,
and deducting any costs and expenses capitalised in accordance with
the accounting policies, practices and procedures applied in the
preparation of the relevant financial statements of the Group or, as
the case may be, the UK Group during such period (other than costs
and expenses incurred in constructing or upgrading cable networks in
the ordinary course of the UK Group's business or, as the case may
be, the Group's, business).
"Eligible Deposit Bank" means any bank or financial institution which
is a Bank and has a short term rating of at least A1 granted by
Standard & Poor's Corporation or P1 granted by Moody's Investors
Services, Inc.
"Financial Quarter" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"Group Consolidated Total Debt" means, at any time (without double
counting), the aggregate principal, capital or nominal amounts
(including any capitalised interest) of indebtedness of any member of
the Group constituting Indebtedness for Borrowed Money together with
any other indebtedness of any member of the Group constituting
Indebtedness for Borrowed Money which is due and payable and has not
been paid at such time and in respect of which the grace period (if
any) specified in the documentation relating thereto has expired, but
excluding Indebtedness for Borrowed Money of any member of the Group
to another member of the Group to the extent permitted or not
prohibited under this Agreement.
"Group Net Consolidated Total Debt" means, at any time, the Group
Consolidated Total Debt at such time less Cash, in cleared balances
at such time, credited to an account in the name of a member of the
Group subject to a maximum aggregate Cash amount of
(pound)150,000,000 (or its equivalent in other currencies).
"Group Total Debt Service" means, in respect of any Financial
Quarter, the aggregate of:
(a) the UK Group Total Interest Payable in respect of such
Financial Quarter; and
(b) amounts (if any) accrued during such Financial Quarter in
respect of the actual cash obligations of any member of the
Covenant Group which could (assuming that the conditions for
making the relevant Permitted Payments will be satisfied at
the time such Permitted Payment falls to be made) be
serviced by Permitted Payments falling within paragraph (a)
of the definition thereof less any amount previously taken
into account pursuant to this paragraph (b) when calculating
Group Total Debt Service where the relevant actual cash
payment obligation of the relevant member of the Covenant
Group falls due during such Financial Quarter but is not
capable of being serviced by Permitted Payments falling
within paragraph (a) of the definition thereof due to the
conditions for such Permitted Payments to be made not being
satisfied;
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(c) one quarter of the maximum amount of corporate expenses
which could (assuming that the conditions for making the
relevant Permitted Payment will be satisfied at the time
such Permitted Payment falls to be made) be serviced by
Permitted Payments falling within paragraph (b) of the
definition thereof during the financial year of the Parent
in which the relevant Financial Quarter falls less any
amount previously taken into account pursuant to this
paragraph (c) when calculating Group Total Debt Service
where, during such Financial Quarter, it becomes apparent
that such amount previously taken into account is not
capable of being serviced by Permitted Payments falling
within paragraph (b) of the definition thereof due to the
conditions for such Permitted Payments to be made not being
satisfied or it becomes apparent that such amount previously
taken into account is not required to be funded by a
Permitted Payment falling within paragraph (b) of the
definition thereof; and
(d) save to the extent immediately reborrowed, the aggregate of
scheduled and mandatory payments of the principal, capital
or nominal amounts of any Indebtedness for Borrowed Money of
any member of the UK Group which fell due during such
Financial Quarter.
"Liquidity" means at any time the aggregate amount of:
(a) Available Cash;
(b) the Available Revolving Facility (if any) provided that at
the relevant time a Revolving Advance in an amount equal to
the Available Revolving Facility would be capable of being
made in accordance with Clause 3 (Utilisation of the
Revolving Facility); and
(c) any investments of an Obligor or a member of the Covenant
Group falling within paragraph (b) or paragraph (c) of the
definition of Permitted Investments and which are held with
an Eligible Deposit Bank.
"Operating Cash Flow" means, in respect of any Financial Quarter,
EBITDA of the UK Group for that Financial Quarter after:
(a) adding back:
(i) any decrease in the amount of Working Capital at
the end of such Financial Quarter compared against
the Working Capital at the start of such Financial
Quarter; and
(ii) any cash receipt in respect of any exceptional
item; and
(b) deducting:
(i) the lesser of (x) actual Capital Expenditure by
members of the UK Group during such Financial
Quarter and (y) an amount equal to 120 per cent.
of the budgeted Capital Expenditure for such
Financial Quarter as set out in the Updated
Business Plan provided that, in respect of any
Financial Quarter which falls within the financial
year commencing 1 January 2005
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or any financial year commencing thereafter, the
budgeted Capital Expenditure for the purposes of
such calculation shall be equal to one quarter of
the amount of Capital Expenditure specified in the
Budget for such financial year delivered pursuant
to Clause 20.6 (Budgets);
(ii) any increase in the amount of Working Capital at
the end of such Financial Quarter compared against
the Working Capital at the start of that Financial
Quarter;
(iii) any amount due and payable in respect of taxes on
the profits in that Financial Quarter of any
member of the UK Group; and
(iv) any cash payment in respect of any exceptional
item,
and no amount shall be included or excluded more than once.
"Quarter Date" means 31 March, 30 June, 30 September and 31 December
in each year.
"Relevant Period" means each period of six months ending on a Quarter
Date.
"UK Group Capital Expenditure" means the aggregate Capital
Expenditure of members of the UK Group.
"UK Group Consolidated Total Debt" means, at any time (without double
counting), the aggregate principal, capital or nominal amounts
(including any capitalised interest) of indebtedness of any member of
the UK Group constituting Indebtedness for Borrowed Money together
with any other indebtedness of any member of the UK Group
constituting Indebtedness for Borrowed Money which is due and payable
and has not been paid at such time and in respect of which the grace
period (if any) specified in the documentation relating thereto has
expired but:
(a) excluding such Indebtedness for Borrowed Money of any member
of the UK Group to another member of the UK Group to the
extent permitted under this Agreement; and
(b) excluding any Indebtedness for Borrowed Money to the extent
such is Subordinated UK Group Debt.
"UK Group Net Consolidated Total Debt" means, at any time, UK Group
Consolidated Total Debt at such time less Cash, in cleared balances
at such time, credited to an account in the name of a member of the
UK Group subject to a maximum aggregate Cash amount of
(pound)100,000,000 (or its equivalent in other currencies).
"UK Group Total Interest Payable" means, in respect of any period,
the aggregate amount of the interest (including the interest element
of leasing and hire purchase payments), commission, fees and other
periodic finance payments which have accrued on the UK Group
Consolidated Total Debt during such period:
(a) adding any commission, fees and other finance payments
accrued during such period (whether payable during such
period or later) by any member of the UK Group under any
interest rate hedging arrangement;
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(b) deducting any commission, fees and other finance payments
accrued in favour of any member of the UK Group under any
interest rate hedging arrangement permitted by this
Agreement during such period; and
(c) deducting any interest accrued in favour of any member of
the UK Group on any deposit or bank account during such
period.
"Working Capital" means on any date Current Assets less Current
Liabilities.
21.4 Accounting Terms
All accounting expressions which are not otherwise defined herein
shall be construed in accordance with generally accepted accounting
principles in England.
22. COVENANTS
22.1 Notification of Events of Default
The Parent shall promptly inform the Agent of the occurrence of any
Event of Default or Potential Event of Default and, upon receipt of a
written request to that effect from the Agent, confirm to the Agent
that, save as previously notified to the Agent or as notified in such
confirmation, no Event of Default or Potential Event of Default has
occurred and is continuing.
22.2 Claims Pari Passu
Each Obligor shall ensure that, subject to the Reservations:
22.2.1 at all times the claims of the Finance Parties against such
Obligor under the Finance Documents (other than the Security
Documents and the Second Security Documents) to which such
Obligor is party rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors; and
22.2.2 at all times the claims of the Finance Parties against such
Obligor under the Security Documents and the Second Security
Documents to which such Obligor is party rank ahead of the
claims of all its other creditors (other than (if and to the
extent applicable) creditors with the benefit of Permitted
Encumbrances) against the assets the subject of the
Encumbrances created by such Security Documents or the
Second Security Documents.
22.3 Maintenance of Legal Validity
Each Obligor shall and the Parent shall procure that each Obligor in
the UK Group shall:
22.3.1 do all such things as are necessary to maintain its
existence as a legal person (other than as part of a solvent
reorganisation on terms which have been approved in writing
by the Agent acting on the instructions of an Instructing
Group); and
22.3.2 obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all
authorisations, approvals, licences and consents required in
or by the laws and regulations of each jurisdiction in which
it owns or leases property or in which it conducts its
business to enable it lawfully to enter into and perform its
obligations under each of the Finance Documents to which it
is expressed to be a party or to ensure the legality or
validity or (subject to the
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Reservations) enforceability or admissibility in evidence in
England and in each other jurisdiction in which it owns or
leases property or in which it conducts its business (to the
extent applicable) of each such Finance Document.
22.4 Insurance
Each Obligor shall and the Parent shall procure that each member of
the UK Group shall effect and maintain, insurances (or, in the case
of the Captive Insurance Company, if the Captive Insurance Company is
a member of the UK Group, insurances and re-insurances) on and in
relation to its business and assets against such risks as is
reasonable for a company carrying on a business such as that carried
on by such Obligor or member of the UK Group with either (save in
respect of the Captive Insurance Company's own insurance) the Captive
Insurance Company or with a reputable underwriter or insurance
company and, in the case of the Captive Insurance Company, the Parent
shall procure that the Captive Insurance Company shall effect and
maintain insurances with a reputable underwriter or insurance or
reinsurance company.
22.5 Environmental Compliance
Each Obligor shall and the Parent shall procure that each member of
the UK Group shall comply in all material respects with all
Environmental Laws and obtain and maintain any Environmental Permits,
breach of which (or failure to obtain or maintain which) could
reasonably be expected to have a Material Adverse Effect.
22.6 Environmental Claims
Each Obligor shall and the Parent shall procure that each member of
the UK Group shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same if any Environmental
Claim has been commenced or (to the best of such Obligor's or member
of the UK Group's knowledge and belief) is threatened against it in
any case where such claim would be reasonably likely, if adversely
determined, to have a Material Adverse Effect, or of any facts or
circumstances which will or are reasonably likely to result in any
Environmental Claim being commenced or threatened against such
Obligor or member of the UK Group in any case where such claim would
be reasonably likely, if adversely determined, to have a Material
Adverse Effect.
22.7 Maintenance of Licences and Other Authorisation
Each Obligor shall and the Parent shall procure that each member of
the UK Group shall:
22.7.1 ensure that it has the right and is duly qualified to
conduct its business and to the extent that the loss of any
contract, authorisation, approval, licence, consent, right
or franchise could reasonably be expected to have a Material
Adverse Effect, do all things necessary to obtain, preserve,
keep valid and binding and, where relevant, renew all such
contracts, authorisations, approvals, licences, consents,
rights and franchises; and
22.7.2 ensure that each Licence (or any replacement or renewal
thereof) is held by a member of the UK Group (other than the
Parent).
22.8 Conduct Business in Accordance with Licences
Each Obligor shall and the Parent shall procure that each member of
the UK Group shall carry on its business, or cause the same to be
carried on, in accordance with the terms
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and conditions of the Licences in all material respects and no
Obligor shall and the Parent shall procure that no member of the UK
Group shall do, omit to do or suffer to be done, any act whereby any
person is entitled or empowered to revoke, materially and adversely
amend, suspend, withdraw or terminate any Licence if such amendment,
revocation, suspension, withdrawal or termination could reasonably be
expected to have a Material Adverse Effect.
22.9 Statutory Requirements
Each Obligor shall and the Parent shall procure that each member of
the UK Group shall comply in all material respects with all Statutory
Requirements binding upon it or enforceable against it in respect of
the conduct of its business and the ownership of its properties if
and insofar as failure to do so could reasonably be expected to have
a Material Adverse Effect.
22.10 Regulatory Notices and Communications
The Parent shall notify the Agent within fourteen days of receipt by
any member of the UK Group of any notice or communication from any
government, court or regulatory authority or agency (including,
without prejudice to the generality of the foregoing, the Secretary
of State for Trade and Industry, Oftel or the Radiocommunications
Agency) which may give rise to the revocation, termination, material
adverse amendment, suspension, withdrawal or avoidance of any
Licences or any of the terms and conditions thereof if such
revocation, termination, material adverse amendment, suspension,
withdrawal or avoidance could reasonably be expected to have a
Material Adverse Effect.
22.11 Compliance with Material Commercial Contracts
Each Obligor shall and the Parent shall procure that each member of
the UK Group shall:
22.11.1 comply in all material respects with its obligations under
each Material Commercial Contract to which it is party and
take all action necessary to ensure the continued validity
and enforceability of its rights thereunder;
22.11.2 not amend, vary, novate or supplement any such Material
Commercial Contract in any material respect;
22.11.3 not terminate any such Material Commercial Contract prior to
its contractual termination date,
if such non-compliance, failure to take action, amendment, variation,
novation or supplement or termination, as the case may be, could
reasonably be expected to have a Material Adverse Effect.
22.12 Preservation of Assets
Each Obligor shall and the Parent shall procure that each member of
the UK Group shall maintain and preserve all of its assets that are
necessary and material in the conduct of its business as conducted at
the Execution Date in good working order and condition (ordinary wear
and tear excepted), repair (with reasonable promptness) any damage to
such assets and shall maintain in all material respects all books and
records which are necessary in connection therewith or in connection
with the conduct of its business.
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22.13 Security
Each Obligor shall, at its own expense, take all such action as the
Agent may reasonably require for the purpose of perfecting or
protecting the Finance Parties' rights under and preserving the
security interests intended to be created or evidenced by any of the
Finance Documents to which it is a party, and following the making of
any declaration pursuant to Clause 23.17 (Acceleration and
Cancellation) or 23.18 (Advances Due on Demand) for facilitating the
realisation of any such security or any part thereof.
22.14 Access
The Parent shall ensure that any one or more representatives, agents
and advisers of the Agent and/or any of the Banks will be allowed,
whilst an Event of Default or Potential Event of Default is
continuing and with prior notice, to have access to the assets,
books, records and premises of each member of the UK Group and be
permitted to inspect the same during normal business hours.
22.15 Consents and Properties
Each Obligor which owns a Principal Property or any other property to
be subject to a fixed charge under a Debenture shall, and the Parent
shall procure that each such Obligor in the UK Group shall use all
reasonable endeavours to obtain consents to charge all of such
properties which are leasehold and which are charged pursuant to the
Security Documents and/or the Second Security Documents from the
relevant landlords as soon as practicable.
22.16 Mandatory Contribution
22.16.1 New NTL shall ensure that the cash proceeds (net of any
related expenses) of any equity or Financial Indebtedness
raised by any member of the Covenant Group (other than from
another member of the Covenant Group (but without prejudice
to New NTL's obligations under this Clause 22.16 in respect
of any equity or Financial Indebtedness raised by such other
member of the Covenant Group other than from another member
of the Covenant Group)) shall be applied as follows:
(a) to the extent that such amount is required,
pursuant to the Working Capital Facility, to be
applied in mandatory prepayment of the amount
outstanding thereunder, such amount shall be
invested in the Parent by way of Subordinated
Funding and so applied in mandatory prepayment of
the amount outstanding under the Working Capital
Facility (in accordance with the terms thereof);
(b) to the extent that such amount is not required
pursuant to the Working Capital Facility to be
applied in mandatory prepayment thereof:
(i) up to (and including) 31 December 2003,
662/3 per cent. of the aggregate amount of
such cash proceeds; and
(ii) at all times thereafter, 75 per cent. of
the aggregate amount of such cash
proceeds,
in each case other than:
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(1) Excluded Contributions; and
(2) any Financial Indebtedness of the type
referred to at paragraph (c) of the
definition of Financial Indebtedness where
the relevant Hedging Agreement is an
agreement in respect of an interest rate
swap or a currency swap in respect of
Financial Indebtedness raised by any
member of the Covenant Group which is an
Excluded Contribution or which has been
applied in accordance with this Clause
22.16 provided that the relevant Hedging
Agreement was entered into for bona fide
protection against fluctuations in
interest or currency rates, the relevant
Hedging Agreement does not (whether
intended or not) create the same or a
similar economic benefit for the relevant
member of the Covenant Group as an
agreement to borrow money or to raise
finance or an agreement which otherwise
has the same commercial effect as a
borrowing and the relevant Hedging
Agreement was entered into on terms
(including rates) which could reasonably
be regarded as market standard for a
company of comparable standing to the
member of the Covenant Group which is
party to the relevant Hedging Agreement at
the time at which the Hedging Agreement
was entered into provided further that the
exclusion at this paragraph (2) does not
include any amounts payable to a member of
the Covenant Group on the early
termination of a Hedging Agreement or any
amounts payable to a member of the
Covenant Group on the entry into of a
Hedging Agreement (save for any such
amounts which are payable to achieve bona
fide protection against fluctuations in
interest or currency rates) and any such
amounts shall be applied in accordance
with this Clause 22.16,
shall be contributed to the Parent by way of
Subordinated Funding. The Parent shall in turn
ensure that any such Subordinated Funding received
by it is contributed to the other members of the
UK Group by way of Parent Funding.
22.16.2 The Parent may, on or before the date falling 12 months
after the Second Restatement Amendment Effective Date by
notice in writing to the Agent, elect that some or all of
the cash proceeds of the Exit Financing or the Exit Shares
which has, prior to the making of such election, been
voluntarily invested in the Parent by way of Subordinated
Funding and on-lent by the Parent to members of the UK Group
(other than the Parent) by way of Parent Funding (the amount
of such cash proceeds so notified being hereinafter referred
to as the "Exit Contributed Amount"), are to constitute
Capital Events Proceeds and to be used to prepay and cancel
the Working Capital Facility. If the Parent makes an
election as aforesaid the Parent shall be entitled to,
notwithstanding the provisions of the Parent Intra-Group
Loan Assignment and the Second Parent Intra-Group Loan
Assignment or any other provision of this Agreement, and
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shall, apply an amount equal to the Exit Contributed Amount
less (pound)9,000,000 in prepayment and cancellation of the
Working Capital Facility.
22.17 Negative Pledge
No Obligor shall and the Parent shall procure that no member of the
UK Group shall create or permit to subsist any Encumbrance over all
or any of its present or future undertaking, revenues or assets other
than Permitted Encumbrances.
22.18 Loans and Guarantees
No Obligor shall and the Parent shall procure that no member of the
UK Group shall (save in the ordinary course of business) make any
loans, grant any credit or give any guarantee or indemnity to or for
the benefit of any person or voluntarily assume any liability,
whether actual or contingent, in respect of any obligation of any
other person other than Permitted Loans and Guarantees. Any
intercompany balance representing any overpayment or any underpayment
arising as a result of the settlement arrangements referred to at
paragraph (h)(ii) of the definition of Permitted Loans and Guarantees
(and any payment in connection with any such overpayment or
underpayment) shall not constitute a breach of any restriction
contained in the Finance Documents.
22.19 Disposals
22.19.1 No Obligor shall and the Parent shall procure that no member
of the UK Group shall sell, lease, transfer or otherwise
dispose of, by one or more transactions or series of
transactions (whether related or not), the whole or any part
of its revenues or its assets other than any Permitted
Disposal.
22.19.2 Each of New NTL and the Parent shall procure that prior to
the earliest of: (a) Note Registration; (b) the disposal of
the Towers Business (as hereinafter defined) and (c) a
refinancing of the Exit Financing other than by way of
indebtedness or, if by way of indebtedness, where the
provisions of the documents relating to such indebtedness do
not limit (and cannot operate to limit) a sale of the Towers
Business, the aggregate fair market value of Asset
Dispositions (other than any asset subject to a Sale and
Leaseback Transaction permitted under the Exit Financing
Indenture) in any Fiscal Year does not exceed 5 per cent. of
the Consolidated Tangible Assets at the beginning of such
Fiscal Year. New NTL shall not agree any amendment to the
New NTL Exit Facility Agreements which imposes additional
restrictions or further circumscribe (whether directly or
indirectly) the ability of any person to dispose of the
shares in, or assets of, National Transcommunications
Limited or the ability of any person to dispose of all or
any part of the Group's United Kingdom broadcast business
and undertaking (the "Towers Business").
22.19.3 For the purpose of sub-clause 22.19.2 of this Clause 22.19,
"Asset Dispositions", "Consolidated Tangible Assets",
"Fiscal Year", "Note Registration" and "Sale and Leaseback
Transaction" shall each bear the meaning given to such term
in the Exit Financing Indenture as set out in Appendix B
(Change of Control and Asset Disposition provisions of the
Exit Financing Indenture) or as such definitions in the Exit
Financing Indenture may be amended from time to time
provided that no amendment to any such
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definition shall be taken into account for the purposes of
sub-clause 22.19.3 of this Clause 22.19 until such time as
the Agent shall have received a copy of the amended
definitions and such other information in relation thereto
as the Agent may reasonably request.
22.20 Financial Indebtedness
22.20.1 No Obligor shall and the Parent shall procure that no member
of the UK Group shall incur, or allow to subsist, any
Financial Indebtedness or enter into any agreement or
arrangement whereby it is entitled to incur, create or allow
to subsist any Financial Indebtedness other than Permitted
Indebtedness.
22.20.2 New NTL shall procure that NTL UK shall not incur, or allow
to subsist, any Financial Indebtedness between it and any
other members of the Covenant Group or enter into any
agreement or arrangement whereby it is entitled to incur,
create or allow to subsist any such Financial Indebtedness
other than Financial Indebtedness owed by it to New NTL or
to New Holdco.
22.20.3 New NTL shall not, and shall procure that no member of the
Covenant Group shall incur, or allow to subsist any
Financial Indebtedness or enter into any agreement or
arrangement whereby it is entitled to incur, create or allow
to subsist any Financial Indebtedness other than, subject to
sub-clause 22.20.2, Permitted Covenant Group Indebtedness.
22.20.4 New NTL and the Parent shall procure that the only Financial
Indebtedness outstanding between NTL UK and the Parent is
Subordinated UK Group Debt.
22.21 Restricted Payments
The Parent shall not and shall procure that no member of the UK Group
shall make any Restricted Payment other than Permitted Payments.
22.22 Acquisitions and Investments
No Obligor shall and the Parent shall procure that no member of the
UK Group shall (a) purchase, subscribe for or otherwise acquire any
shares (or other securities or any interest therein) in, or
incorporate, any other company or agree to do any of the foregoing,
or (b) purchase or otherwise acquire (other than in the ordinary
course of business) any assets or revenues or (without limitation to
any of the foregoing) acquire any business or interest therein or
agree to do so, save for (and for agreements relating to):
22.22.1 any investment or acquisition of assets contemplated in the
Updated Business Plan provided that the aggregate value of
all such investments and acquisitions shall not exceed
(pound)25,000,000 (or its equivalent in other currencies);
22.22.2 Permitted Investments; and
22.22.3 Permitted Acquisitions.
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22.23 Mergers
No Obligor shall and the Parent shall procure that no member of the
UK Group shall enter into any merger or consolidation with any other
person save for, respectively, another Obligor or, as the case may
be, another member of the UK Group.
22.24 Change of Business
Save as contemplated in the Updated Business Plan (and provided that
nothing in this Clause 22.24 shall prevent an Obligor from making any
investment or disposal which is otherwise permitted under this
Agreement) no Obligor shall and the Parent shall procure that no
member of the UK Group shall enter into any type of business sector
which would result in a change in the business focus of the UK Group
taken as a whole from its business focus as at the Execution Date.
22.25 Guarantors
22.25.1 The Parent shall ensure that at all times the aggregate
EBITDA of the Guarantors (in each case calculated on an
unconsolidated basis) for any period of four consecutive
Financial Quarters equals or exceeds 95 per cent. of the
consolidated EBITDA of the UK Group for such period.
22.25.2 For the purposes of this Clause 22.25 the aggregate EBITDA
of the Guarantors and the consolidated EBITDA of the UK
Group shall be equal to the aggregate EBITDA of the
Guarantors or, as the case may be the aggregate EBITDA of
the UK Group for the immediately preceding four complete
Financial Quarters.
22.25.3 A breach of this Clause 22.25 shall not constitute an Event
of Default if (i) one or more subsidiaries of the Parent
become Guarantors (in accordance with Clause 37 (Accession
of Guarantors)), within five Business Days of the earlier of
notice by the Agent to the Parent of the breach and the
Parent becoming aware thereof and (ii) the Agent (acting
reasonably) is satisfied that this Clause 22.25 will, as a
result of the Guarantors thereby created, be satisfied.
22.26 Shares
No Obligor shall and the Parent shall procure that no member of the
UK Group shall without the prior written consent of an Instructing
Group, alter any rights attaching to its issued shares, if:
22.26.1 those shares are subject to the Security and/or the Second
Security; and
22.26.2 such an alteration would be reasonably likely to prejudice
the value of, or the ability of the Security Trustee and/or
the Second Security Trustee to realise, the Security and/or
the Second Security (as the case may be) over the company
represented by those shares.
22.27 Transactions with Affiliates
22.27.1 No Obligor shall and the Parent shall procure that no member
of the UK Group shall enter into any transaction with an
affiliate of such Obligor or, as the case may be, member of
the UK Group other than:
(a) transactions disclosed in writing to, and approved
by, the Agent prior to the Second Restatement
Amendment Effective Time;
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(b) transactions in respect of either Subordinated
Funding or Parent Funding;
(c) transactions:
(i) between Obligors incorporated in the
United Kingdom (other than transactions
prohibited under this Agreement);
(ii) between Obligors incorporated in the
United States of America (other than
transactions prohibited under this
Agreement); and
(iii) not falling within paragraphs (i) or (ii)
of this sub-paragraph (c) of this
sub-clause 22.27.1 between members of the
Group where such are otherwise permitted
by this Agreement;
(d) transactions in the ordinary course of business
and either on no worse than arm's length terms or,
where there is no available market by which to
assess whether such a transaction is on no worse
than arm's length terms, on terms such that the
transaction is financially fair to the Parent,
relevant Obligor or, as the case may be, other
member of the UK Group;
(e) transactions to effect either an Asset Passthrough
or a Funding Passthrough;
(f) insurance arrangements entered into in the
ordinary course of business with the Captive
Insurance Company;
(g) tax sharing arrangements and agreements to
surrender tax losses provided that any such
arrangement or agreement entered into after the
Second Restatement Amendment Effective Time is
disclosed to the Agent on or prior to being
entered into;
(h) transactions relating to the provision of
Intra-Group Services;
(i) transactions with Cable & Wireless and its
subsidiaries in relation to the Transaction
Agreement;
(j) transactions relating to Excess Capacity Network
Services provided that the price payable by any
affiliates in relation to such Excess Capacity
Network Services is no less than the cost incurred
by the Parent, or relevant Obligor or, as the case
may be, other member of the UK Group in providing
such Excess Capacity Network Services;
(k) transactions constituted by loans or investments
in any UK Group Excluded Subsidiary where such are
otherwise permitted under this Agreement; and
(l) transactions either on terms and conditions
(including, without limitation, as to any fees
payable in connection with such transactions) not
substantially less favourable to the Parent,
relevant Obligor or, as the case may be, other
member of the UK Group than would be obtainable at
such time in comparable arm's length transactions
with an entity which is not
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an affiliate or, where there is no comparable
arm's length transaction by which to assess
whether such a transaction is on terms and
conditions not substantially less favourable to
the Parent, relevant Obligor or, as the case may
be, other member of the UK Group, on such terms
and conditions (including, without limitation, as
to any fees payable in connection with such
transaction) that the transaction is financially
fair to the Parent, relevant Obligor or, as the
case may be, other member of the UK Group.
22.27.2 The Parent shall ensure that each Compliance Certificate
delivered by it pursuant to Clause 20.5 (Compliance
Certificates) has attached thereto:
(a) a schedule in the form, or substantially in the
form, agreed between the Parent and the Reporting
Accountants prior to the Second Restatement
Amendment Effective Time setting out:
(i) details of the outstanding debit and
credit balances (as at the last day of the
Financial Quarter to which such Compliance
Certificate relates) in respect of each
Affiliate for which an Affiliate
Transaction has been notified to the Agent
as a condition precedent to the Second
Restatement Amendment Effective Time or
which has been notified to the Agent in
the attachment to any Compliance
Certificate previously delivered to the
Agent (other than transactions between
Obligors, and transactions under the
agency arrangements which have been
notified to the Agent as a condition
precedent to the Second Restatement
Amendment Effective Time or from time to
time thereafter in accordance with
paragraph (b) of this sub-clause 22.27.2)
; and
(ii) details of the monthly movements of
material debits and credits for each
Affiliate Transaction in respect of each
Affiliate referred to at paragraph (i)
above during such Financial Quarter,
provided that in respect of NTL (South
Hertfordshire) Limited this requirement will be
satisfied by the delivery of the relevant 10-Q or
10-K for South Hertfordshire United Kingdom Fund,
Ltd as soon as reasonably practicable after the
same is available (and not with delivery of the
relevant Compliance Certificate);
(b) a schedule (prepared on a best efforts basis)
listing all Affiliate Transactions with a monetary
value equal to or greater than (pound)1,000,000
per annum (other than transactions between
Obligors and transactions under the agency
arrangements which have been notified to the Agent
as a condition precedent to the Second Restatement
Amendment Effective Time or from time to time
thereafter in accordance with this paragraph (b))
and details of the accession of any new principal
(other than an Obligor) to the agency agreements
which were notified to the Agent as a condition
precedent to the Second Restatement Amendment
Effective Time, in each case which have not
previously been notified to the Agent; and
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(c) a list (prepared on a best efforts basis) of all
affiliates which had no trading activity or
financing arrangements with any member of the UK
Group over the relevant Financial Quarter, or
written confirmation that there has been no change
from the list most recently delivered to the Agent
under this paragraph (c).
22.28 Working Capital Facility Amendments
The Parent shall not agree any material amendments to the terms of
the Working Capital Facility and shall not (other than pursuant to an
election under sub-clause 22.16.2 of Clause 22.16 (Mandatory
Contribution)) voluntarily prepay all or any part thereof unless a
replacement or substitute therefor is put in place on terms
acceptable to the Banks. For the avoidance of doubt it is hereby
agreed that the granting of any Encumbrance or guarantee by an
Obligor as security for or, as the case may be, a guarantee of,
amounts due under the Working Capital Facility shall constitute a
material amendment to the terms of the Working Capital Facility. As
at the Second Restatement Amendment Effective Time, the remaining
available commitment under the Working Capital Facility has been
cancelled and no further advances may be made under the Working
Capital Facility.
22.29 Change in Financial Year
No Obligor shall and the Parent shall procure that no member of the
UK Group shall change the end of its financial year, other than:
22.29.1 as agreed by an Instructing Group, acting reasonably; or
22.29.2 so as to ensure that the financial year of any member of the
UK Group ends on the same date as the financial year of the
Parent.
22.30 Revised Group Structure
If the Parent becomes aware of any material inaccuracy in the
corporate structure as set out in the group structure chart delivered
to the Agent as a condition precedent to the Second Restatement
Amendment Effective Time or any group structure chart delivered to
the Agent pursuant to this Clause 22.30, it will deliver to the Agent
as soon as reasonably practicable thereafter a revised group
structure chart which is true, complete and accurate insofar as it
relates to the corporate structure of the UK Group and the Covenant
Group.
22.31 Hedging
The Parent shall not, and shall procure that no member of the UK
Group shall, enter into any Hedging Agreement other than:
22.31.1 a Secured Hedging Agreement; or
22.31.2 a Hedging Agreement entered into in accordance with the
Hedging Strategy.
22.32 Voluntary Prepayments
For the avoidance of doubt, the Parent shall not, and shall procure
that no member of the UK Group shall make any Permitted Payment under
paragraph (a) of the definition of that term which is used or
intended to be used to fund a voluntary prepayment by any
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member of the Covenant Group in respect of all or any part of the
Financial Indebtedness of such member of the Covenant Group.
22.33 Cancellation of Subordinated UK Group Debt
New NTL shall procure that NTL UK does not cancel, write-off or
otherwise forgive all or any part of any loans made by NTL UK to the
Parent (being Subordinated UK Group Debt), without the prior written
consent of the Agent, if such cancellation, write-off or other
forgiveness might reasonably be expected to give rise to material tax
liabilities for the UK Group taken as a whole, which cannot be
sheltered by the net operating losses of the Group available at the
time of such cancellation, write-off or forgiveness.
22.34 Post Plan Effective Date Investigations and Reports
22.34.1 The Parent undertakes to instruct Sullivan & Cromwell LLC
("S&C") and Deloitte & Touche LLC ("D&T") as soon as
reasonably practicable after the Plan Effective Date and in
any event within 28 days of the Plan Effective Date, to
investigate a representative sample of the UK Group's
internal controls including, without limitation, the
internal controls relating to the procuring and monitoring
of outsourcing arrangements (including in relation to the
Profectus Contracts (as defined in S&C's written report
dated 18 December 2002 which has been delivered to the
Agent) and the Group's information technology services
contracts with IBM) and to prepare a written report within 3
months of the execution of the engagement letters with S&C
and D&T (or such longer period as may reasonably be required
in order to complete the relevant investigation). The
division of the work between S&C and D&T will reflect their
respective expertise. S&C and D&T shall be instructed to
detail in the written report the results of such
investigation and to recommend any steps to be taken to
remedy any material deficiencies in internal controls
identified. S&C and D&T shall be instructed by the Parent to
include the Banks as addressees of the written report but
only on the basis that neither S&C nor D&T shall have any
liability to any of the Banks. The Parent shall pay all
reasonable fees and expenses incurred by S&C and D&T in
making such investigation and preparing such written report.
The Parent shall provide S&C and D&T with such access to the
books and records and personnel of the Group as may
reasonably be required for the purposes of such
investigation and written report. S&C and D&T shall be
entitled to instruct such third party experts as they may
reasonably require to assist them in the investigation and
preparation of the written report.
22.34.2 If the written report referred to at sub-clause 22.34.1 of
this Clause 22.34 recommends any proposals to be taken by
the UK Group to remedy any material deficiencies in internal
controls relating to outsourcing arrangements, the Parent
agrees, after consultation with the Agent, representatives
of the Banks who were formerly Co-ordinators, S&C and D&T,
to adopt such proposals as are considered reasonably
commercially practicable as soon as practicable after the
conclusion of such consultation provided that the adoption
of such proposals are subject to final approval by the board
of directors of New NTL acting in its exercise of its
fiduciary duties.
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22.34.3 If the written report referred to at sub-clause 22.34.1 of
this Clause 22.34 recommends any proposals to be taken by
the UK Group to remedy any material deficiencies in internal
controls relating to non-outsourcing arrangements, the
Parent agrees to consider such proposals as soon as
practicable after publication of the report, subject to
approval of such proposals by the board of directors of New
NTL.
23. EVENTS OF DEFAULT
Each of Clause 23.1 (Failure to Pay) to Clause 23.16 (Material
Adverse Change) describes circumstances which constitute an Event of
Default for the purposes of this Agreement. Clause 23.17
(Acceleration and Cancellation) and Clause 23.18 (Advances Due on
Demand) deal with the rights of the Agent and the Banks after the
occurrence of an Event of Default.
23.1 Failure to Pay
Any of the Obligors fails to pay any sum due from it under any of the
Finance Documents to which it is a party at the time, in the currency
and in the manner specified therein unless:
23.1.1 the sum is of a principal amount which was not paid as a
result of a technical error or failure in the transmission
of funds and that payment is then received by the Agent
within one Business Day of the due date;
23.1.2 the sum is of an amount of interest and that payment is then
received by the Agent within three Business Days of the due
date; or
23.1.3 the sum is of an amount other than principal or interest and
that payment is then received by the Agent within five
Business Days of the due date.
23.2 Misrepresentation
Any representation or statement made or repeated at any time
whatsoever by New NTL, the Parent or any Obligor in any of the
Finance Documents or in any notice or other document or certificate
delivered by it pursuant thereto or in connection therewith is or
proves to have been incorrect or misleading in any material respect
when made or deemed to be made and the circumstances giving rise to
such inaccuracy, if capable of remedy or change, are not remedied or
do not change, such that the relevant representation or statement
would be correct and not misleading if repeated five Business Days
after the earlier of (a) it being notified by the Agent to New NTL in
the case of a representation or statement by New NTL, and to the
Parent in all other cases, as having been made inaccurately and (b)
New NTL, the Parent or the relevant Obligor becoming aware of such
inaccuracy.
23.3 Specific Covenants
New NTL, the Parent or any of the Obligors fails to comply with any
of its obligations under Clause 20 (Financial Information) or Clause
22 (Covenants). No Event of Default under this Clause 23.3 shall
occur in relation to:
23.3.1 Clause 20.1 (Annual Statements) to Clause 20.10 (Other
Financial Information), Clause 20.12 (General Information)
or Clause 20.13 (Litigation
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and Government or Regulatory Enquiry), if the failure to
comply with such is remedied within five Business Days of
the Agent giving notice thereof to the Parent; and
23.3.2 Clause 22 (Covenants), if the failure to comply with such is
capable of remedy and is remedied within five Business Days
of the date on which New NTL, the Parent or, as the case may
be, the relevant Obligor became aware of such failure to
comply provided that a breach of any of the obligations
under Clause 22.2 (Claims Pari passu), Clause 22.3
(Maintenance of Legal Validity), 22.8 (Conduct Business in
Accordance with Licences), Clause 22.17 (Negative Pledge),
Clause 22.18 (Loans and Guarantees), Clause 22.19
(Disposals), Clause 22.21 (Restricted Payments), Clause
22.22 (Acquisitions and Investments), Clause 22.23
(Mergers), Clause 22.27 (Transactions with Affiliates) and
Clause 22.33 (Cancellation of Subordinated UK Group Debt),
shall immediately give rise to an Event of Default.
23.4 Other Obligations
New NTL, the Parent or any of the Obligors fails duly to perform or
comply with any other obligation expressed to be assumed by it in any
of the Finance Documents and such failure is not remedied within
thirty days after the Agent has given notice thereof to New NTL or,
in the case of the Parent or any Obligor, the Parent.
23.5 Financial Condition
At any time any of the requirements of Clause 21.1 (UK Group
Financial Condition) or Clause 21.2 (Group Financial Condition) is
not satisfied.
23.6 Cross Default
Any:
23.6.1 Financial Indebtedness of any Obligor or of any other member
of the UK Group is not paid when due and payable, after
taking account of any applicable grace period, or, if
payable on demand (after taking account of any applicable
grace period), is not paid on demand;
23.6.2 Financial Indebtedness of any Obligor or of any other member
of the UK Group is declared to be or otherwise becomes due
and payable prior to its specified maturity by reason of a
default by the relevant Obligor or other member of the UK
Group (after taking account of any applicable grace period);
23.6.3 commitment for any Financial Indebtedness of any Obligor or
of any other member of the UK Group is cancelled or
suspended by reason of a default by the relevant Obligor or
other member of the UK Group; or
23.6.4 creditor or creditors of any Obligor or of any other member
of the UK Group becomes entitled (by reason of default) to
declare any Financial Indebtedness of such Obligor or other
member of the UK Group due and payable prior to its
specified maturity by reason of default by the relevant
Obligor or other member of the UK Group after taking account
of any applicable grace period,
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save that this Clause 23.6 shall not apply to any Financial
Indebtedness of any Obligor or of any other member of the UK Group
where such Financial Indebtedness or demand in relation thereto (a)
is cash collateralised and such cash is available for application in
satisfaction of such Financial Indebtedness, (b) is being contested
in good faith by appropriate action or (c) when aggregated with all
such Financial Indebtedness of the Obligors and any other members of
the UK Group does not exceed an aggregate of (pound)20,000,000 (or
its equivalent in other currencies).
23.7 Insolvency and Rescheduling
If (a) New NTL or (b) any Obligor:
23.7.1 is unable to pay its debts as they fall due;
23.7.2 commences negotiations with any one or more of its creditors
with a view to the general readjustment or rescheduling of
its indebtedness (other than as part of a solvent
reorganisation of New NTL or the relevant Obligor on terms
which have been approved in writing by the Agent, acting on
the instructions of an Instructing Group);
23.7.3 makes a general assignment for the benefit of or a
composition with its creditors; or
23.7.4 has a moratorium declared in respect of any of its
indebtedness.
23.8 Winding-up
If (a) New NTL or (b) any Obligor takes any corporate action or other
steps are taken or legal proceedings are started and served for its
winding-up, dissolution, administration or re-organisation whether by
way of voluntary arrangement, scheme of arrangement or otherwise or
for the appointment of a liquidator, receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar
officer of it or of its revenues and assets provided that it shall
not constitute an Event of Default if:
23.8.1 such action, steps or proceedings relate to a liquidation or
re-organisation of an Obligor on terms which have been
approved in writing by the Agent, acting on the instructions
of an Instructing Group; or
23.8.2 such action, steps or proceedings (a) are frivolous or
vexatious, (b) do not relate to the appointment of an
administrator (or its equivalent in any other jurisdiction)
and (c) are contested in good faith by appropriate legal
action and are stayed or discharged within thirty days of
their commencement.
23.9 Execution or Distress
Any execution, distress or diligence is levied against, or an
encumbrancer takes possession of, the whole or any part of, the
property, undertaking or assets of (a) New NTL or (b) any Obligor
where:
23.9.1 the aggregate value of such assets exceeds (pound)250,000
(or its equivalent in other currencies); and
23.9.2 such execution, distress, diligence or possession is not
discharged within thirty days.
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23.10 Analogous Events
Any event occurs which under the laws of any jurisdiction has a
similar or analogous effect to any of those events mentioned in
Clause 23.7 (Insolvency and Rescheduling), Clause 23.8 (Winding-up)
or Clause 23.9 (Execution or Distress).
23.11 Governmental Intervention
By or under the authority of any government, (a) the management of
any Obligor is wholly or partially displaced or the authority of any
Obligor in the conduct of a material part of its business is wholly
or partially curtailed or (b) all or a majority of the issued shares
of any Obligor or the whole or any substantial part of its revenues
or assets is seized, nationalised, expropriated or compulsorily
acquired, in each case where such is not remedied to the satisfaction
of the Agent within thirty days of the relevant event occurring.
23.12 Repudiation
23.12.1 New NTL or any Obligor repudiates any of the Finance
Documents; or
23.12.2 the security intended to be created by, or the subordination
effected under, the Finance Documents is not or ceases to be
legal and valid and (except as contemplated by the
Reservations or, if capable of remedy, such as is remedied
within five Business Days of the earlier of (a) notice of
the relevant event by the Agent to the Parent and (b) the
date on which New NTL or the Parent becomes aware of such
event) binding and enforceable.
23.13 Illegality
At any time it is or becomes unlawful for New NTL or any of the
Obligors to perform or comply with any or all of its obligations
under any of the Finance Documents to which it is a party or any of
the obligations of New NTL or any of the Obligors thereunder are not
or cease to be legal, valid and (except as contemplated by the
Reservations or, if capable of remedy, such as is remedied within
five Business Days of the earlier of (a) notice of the relevant event
by the Agent to the Parent and (b) the date on which New NTL or, as
the case may be, the Parent becomes aware of such event) binding and
enforceable.
23.14 Asset Adjustment Payments and Transfers of Assets
If:
23.14.1 following a member of the UK Group having made an Asset
Adjustment Payment within paragraph (a) of the definition
thereof, an amount equal to such Asset Adjustment Payment
(including, for the avoidance of doubt, any amount in
respect of VAT) is not (in accordance with the other terms
of this Agreement) reimbursed to that member of the UK Group
by Cable & Wireless on or before the date which is thirty
Business Days after the date on which such Asset Adjustment
Payment was made; or
23.14.2 following a member of the UK Group having made an Asset
Adjustment Payment within paragraph (c) of the definition
thereof:
(a) the relevant member of the UK Group has not made a
claim for credit or repayment from HM Customs &
Excise in an amount equal to such Asset Adjustment
Payment on or before the date which is thirty-one
days after
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the last day of the Prescribed Accounting Period
during which the supply to which such Asset
Adjustment Payment relates is treated as taking
place for the purposes of Section 6 of the VAT
Act; or
(b) the relevant member of the UK Group has not
received a credit or repayment from HM Customs &
Excise in an amount equal to, and in respect of,
such Asset Adjustment Payment on or before the
date which is thirty Business Days after the date
on which the relevant member of the UK Group made
a claim for credit or repayment from HM Customs &
Excise in respect of such Asset Adjustment Payment
in accordance with paragraph (a) of this
sub-clause 23.14.2. For the purposes of this
sub-clause 23.14.2 of this Clause 23.14 references
to the relevant member of the UK Group shall,
unless the context requires otherwise, be deemed,
at any time when such relevant member is a member
of a group for the purposes of Sections 43 and 43C
of the VAT Act, to include a reference to the
representative member of such group. For the
purposes of this paragraph (b) the relevant member
of the UK Group shall be deemed to have received a
credit or repayment from HM Customs & Excise in
respect of a claim (y) where the claim is
satisfied by way of credit only, on the date on
which the relevant member of the UK Group submits
a VAT return to HM Customs & Excise claiming the
relevant credit and (z) where the claim is
satisfied by way of repayment only or by way of
both credit and repayment, on the date on which
the relevant member of the UK Group receives the
relevant repayment from HM Customs & Excise; or
23.14.3 following a transfer of assets from a member of the UK Group
to a company carrying on the CWC DataCo Business referred to
in paragraph (d) of the definition of Asset Adjustment
Payments, New NTL has not, on or before the date which is
thirty Business Days after the date on which the transfer of
assets referred to at paragraph (d) of the definition of
Asset Adjustment Payments was made, paid to the member of
the UK Group an amount equal to the full market value
(exclusive of any amount in respect of VAT) of the asset
transferred; or
23.14.4 following a transfer of assets from a member of the UK Group
to a company carrying on the CWC DataCo Business where no
consideration is paid by the company carrying on the CWC
DataCo Business to the member of the UK Group in connection
with the transfer of such assets in accordance with the
Transaction Agreement, New NTL has not, in accordance with
the description of the relevant reimbursement payment set
out in the Asset Adjustment Payments Memorandum, on or
before the date which is thirty Business Days after the date
on which the transfer of assets was made, paid to the member
of the UK Group an amount equal to the full market value (if
any) (including any amount in respect of VAT) of the assets
transferred,
provided that the aggregate amount of Asset Adjustment Payments
referred to at paragraphs 23.14.2(a) and 23.14.2(b) of sub-clause
23.14.2 of this Clause 23.14 and
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amounts referred to at sub-clauses 23.14.1, 23.14.3 and sub-clause
23.14.4 of this Clause 23.14 exceeds (pound)10,000,000 in aggregate
(or its equivalent in other currencies).
23.15 Covenant Group Cross Default
Any Permitted Covenant Group Indebtedness is not paid when due and
payable (after taking into account any applicable grace period) or
(by reason of the occurrence of a default) is declared to be or
otherwise becomes due and payable prior to its specified maturity or
any holder or any creditor in respect of any Permitted Covenant Group
Indebtedness becomes entitled to declare such Permitted Covenant
Group Indebtedness due and payable prior to its specified maturity
save that this Clause 23.15 shall not apply to any Permitted Covenant
Group Indebtedness of any member of the Covenant Group where such
Permitted Covenant Group Indebtedness when aggregated with all such
other Permitted Covenant Group Indebtedness of any members of the
Covenant Group does not exceed an aggregate of (pound)20,000,000 (or
its equivalent).
23.16 Material Adverse Change
Any event or circumstance which would have a Material Adverse Effect
occurs.
23.17 Acceleration and Cancellation
Upon the occurrence of an Event of Default and at any time thereafter
whilst such event is continuing, the Agent may (and, if so instructed
by an Instructing Group, shall) by written notice to the Parent:
23.17.1 declare the Advances to be immediately due and payable
(whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the
Borrowers hereunder) or declare the Advances to be due and
payable on demand of the Agent; and/or
23.17.2 declare that any undrawn portion of the Revolving Facility
shall be cancelled, whereupon the same shall be cancelled
and the Available Revolving Commitment of each Revolving
Bank shall be reduced to zero; and/or
23.17.3 exercise or direct the Security Trustee (on its own behalf
and on behalf of the Banks and the Hedge Counterparties) and
the Second Security Trustee (on its own behalf and on behalf
of the Term Banks), but not only one of them, to exercise
all rights and remedies of a mortgagee or a secured party at
such time and (without limitation), subject to the Security
Documents and the Second Security Documents and to the
extent permitted by applicable law, (a) foreclose on any or
all of the assets subject to the Security and/or the Second
Security by any available judicial procedure, (b) take
possession of any or all of the assets subject to the
Security and/or the Second Security and the books and
records relating thereto, with or without judicial process
and/or (c) enter any premises where any assets subject to
the Security and/or the Second Security, or any books and
records relating thereto, are located and take possession of
and remove the same therefrom.
23.18 Advances Due on Demand
If, pursuant to Clause 23.17 (Acceleration and Cancellation), the
Agent declares the Advances to be due and payable on demand of the
Agent, then, and at any time
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thereafter, the Agent may (and, if so instructed by an Instructing
Group, shall) by written notice to the Parent:
23.18.1 require repayment of the Advances on such date as it may
specify in such notice (whereupon the same shall become due
and payable on such date together with accrued interest
thereon and any other sums then owed by the Borrowers
hereunder) or withdraw its declaration with effect from such
date as it may specify in such notice; and/or
23.18.2 select as the duration of any Term or Interest Period which
begins whilst such declaration remains in effect a period of
six months or less; and/or
23.18.3 exercise or direct both the Security Trustee and the Second
Security Trustee (but not only one of them) to exercise (on
its own behalf and on behalf of the Banks who have appointed
it) all rights and remedies of a mortgagee or a secured
party in accordance with sub-clause 23.17.3 of Clause 23.17
(Acceleration and Cancellation).
23.19 Enforcement of the Second Security
If there has been a notice from the Agent pursuant to either Clause
23.17 (Acceleration and Cancellation) or Clause 23.18 (Advances Due
on Demand) and the Security Documents have been discharged or the
Term Banks demonstrate to the satisfaction of the Security Trustee
(acting reasonably) that the Security Documents are incapable of
being enforced, the Agent shall act on the instructions of a Term
Instructing Group in relation to the giving of instructions to the
Second Security Trustee pursuant to sub-clause 23.17.3 of Clause
23.17 (Acceleration and Cancellation) and sub-clause 23.18.3 of
Clause 23.18 (Advances Due on Demand).
24. GUARANTEE AND INDEMNITY
24.1 Guarantee and Indemnity
Each of the Guarantors irrevocably and unconditionally, jointly and
severally:
24.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all the terms, conditions and
covenants on the part of each Borrower contained in the
Finance Documents and agrees to pay from time to time on
demand any and every sum or sums of money which each
Borrower is at any time liable to pay to any Finance Party
under or pursuant to the Finance Documents and which has
become due and payable but has not been paid at the time
such demand is made; and
24.1.2 agrees as a primary obligation to indemnify each Finance
Party from time to time on demand from and against any loss
incurred by any Finance Party as a result of any of the
obligations of any Borrower under or pursuant to the Finance
Documents being or becoming void, voidable, unenforceable or
ineffective as against such Borrower for any reason
whatsoever, whether or not known to any Finance Party or any
other person, the amount of such loss being the amount which
the person or persons suffering it would otherwise have been
entitled to recover from such Borrower.
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24.2 Additional Security
The obligations of each Guarantor herein contained shall be in
addition to and independent of every other security which any Finance
Party may at any time hold in respect of any of any Obligor's
obligations under the Finance Documents.
24.3 Continuing Obligations
The obligations of each Guarantor herein contained shall constitute
and be continuing obligations notwithstanding any settlement of
account or other matter or thing whatsoever and shall not be
considered satisfied by any intermediate payment or satisfaction of
all or any of the obligations of the Borrowers under the Finance
Documents and shall continue in full force and effect until final
payment in full of all amounts owing by any Borrower under the
Finance Documents and total satisfaction of all the Borrowers' actual
and contingent obligations under the Finance Documents.
24.4 Obligations not Discharged
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor
upon any Finance Party by the Finance Documents or by law shall be
discharged, impaired or otherwise affected by:
24.4.1 the winding-up, dissolution, administration or
re-organisation of any Obligor or any other person or any
change in its status, function, control or ownership;
24.4.2 any of the obligations of any Obligor or any other person
under the Finance Documents or under any other security
taken in respect of any of its obligations under the Finance
Documents being or becoming illegal, invalid, unenforceable
or ineffective in any respect;
24.4.3 time or other indulgence being granted or agreed to be
granted to any Obligor or any other person in respect of its
obligations under the Finance Documents or under any such
other security;
24.4.4 any amendment to, or any variation, waiver or release of,
any obligation of any Obligor or any other person under the
Finance Documents or under any such other security;
24.4.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in
respect of any Obligor's obligations under the Finance
Documents;
24.4.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any Obligor's obligations under
the Finance Documents; or
24.4.7 any other act, event or omission which, but for this Clause
24.4, might operate to discharge, impair or otherwise affect
any of the obligations of each Guarantor herein contained or
any of the rights, powers or remedies conferred upon any of
the Finance Parties by the Finance Documents or by law.
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24.5 Settlement Conditional
Any settlement or discharge between a Guarantor and any of the
Finance Parties shall be conditional upon no security or payment to
any Finance Party by an Obligor or any other person on behalf of an
Obligor being avoided or reduced by virtue of any laws relating to
bankruptcy, insolvency, liquidation or similar laws of general
application and, if any such security or payment is so avoided or
reduced, each Finance Party shall be entitled to recover the value or
amount of such security or payment from such Guarantor subsequently
as if such settlement or discharge had not occurred.
24.6 Exercise of Rights
No Finance Party shall be obliged before exercising any of the
rights, powers or remedies conferred upon them in respect of any
Guarantor by the Finance Documents or by law:
24.6.1 to make any demand of any Obligor (save where such demand is
expressly required by the terms of the Finance Documents);
24.6.2 to take any action or obtain judgment in any court against
any Obligor;
24.6.3 to make or file any claim or proof in a winding-up or
dissolution of any Obligor; or
24.6.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Obligor under the
Finance Documents.
24.7 Deferral of Guarantors' Rights
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Agent otherwise directs, no
Guarantor will exercise any rights which it may have by reason of
performance by it of its obligations under the Finance Documents:
24.7.1 to be indemnified by an Obligor; and/or
24.7.2 to claim any contribution from any other guarantor of any
obligations of any Borrower under the Finance Documents;
and/or
24.7.3 to take the benefit (in whole or in part and whether by way
of subrogation or otherwise) of any rights of the Finance
Parties under the Finance Documents or of any other
guarantee or security taken pursuant to, or in connection
with, the Finance Documents by any Finance Party,
provided that, notwithstanding the foregoing provisions of this
Clause 24.7, no Guarantor may exercise any rights referred to above
at any time if any security created by any Security Document over the
shares in a Guarantor has been enforced.
24.8 Appropriations
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent
on its behalf) may:
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24.8.1 refrain from applying or enforcing any other moneys,
security or rights held or received by that Finance Party
(or any trustee or agent on its behalf) in respect of those
amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or
otherwise) and no Guarantor shall be entitled to the benefit
of the same; and
24.8.2 hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor's
liability under this Clause 24.
25. COMMITMENT COMMISSION AND FEES
25.1 Commitment Commission on the Revolving Facility
The Borrowers, acting through the Parent, shall pay to the Agent for
the account of each Revolving Bank in respect of each Commitment
Period (as defined in sub-clause 25.3.1 of Clause 25.3 (Definitions
and Average Calculations) below) a commitment commission calculated
at the rate per annum determined pursuant to Clause 25.2 (Rate of
Commitment Commission on the Revolving Facility) on an amount equal
to the average daily Available Revolving Commitments during such
Commitment Period.
25.2 Rate of Commitment Commission on the Revolving Facility
The applicable rate of commitment commission for any Commitment
Period in respect of the Revolving Facility shall be determined by
reference to the average daily utilisation of the Revolving Facility
during such Commitment Period expressed as a percentage of the
average daily Revolving Commitment during such Commitment Period and
in accordance with the following scale:
<table>
<caption>
---------------------------------------------------------------------------- -------------------------------------
Average daily utilisation as percentage of average daily Revolving Applicable rate of commitment
Commitment commission
---------------------------------------------------------------------------- -------------------------------------
<s> <c>
Up to and including 50 per cent. 0.75 per cent.
---------------------------------------------------------------------------- -------------------------------------
Over 50 per cent. 0.50 per cent.
---------------------------------------------------------------------------- -------------------------------------
</table>
25.3 Definitions and Average Calculations
For the purposes of Clauses 25.1 (Commitment Commission on the
Revolving Facility) and Clause 25.2 (Rate of Commitment Commission on
the Revolving Facility):
25.3.1 "Commitment Period" means each successive period of three
months during the period beginning on the Execution Date and
ending on the date falling one month before the Revolving
Termination Date provided that if the last such period would
otherwise extend beyond the date falling one month before
the Revolving Termination Date it shall be shortened so as
to end on that date.
25.3.2 The average daily utilisation of the Revolving Facility
during a Commitment Period shall equal the sum of all
Revolving Advances made by the Revolving Banks and
outstanding on each day during such Commitment Period,
divided by the number of days in such Commitment Period.
25.3.3 The average daily Revolving Commitments during a Commitment
Period shall equal the aggregate of the Revolving
Commitments on each day during such
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Commitment Period divided by the number of days in such
Commitment Period.
25.3.4 The average daily Available Revolving Commitments during a
Commitment Period shall equal the aggregate of the Available
Revolving Commitments on each day during such
Commitment Period divided by the number of days in such
Commitment Period.
25.4 Payment of Commitment Commission on the Revolving Facility
The Agent shall promptly after the end of each Commitment Period
notify the Parent (on behalf of the Borrowers) and the Revolving
Banks of the amounts payable by the Borrowers under Clause 25.1
(Commitment Commission on the Revolving Facility) in respect of such
Commitment Period and the Borrowers, acting through the Parent, shall
pay such amount to the Agent for account of the Revolving Banks pro
rata to each Revolving Bank's Revolving Commitment hereunder from
time to time during the applicable Commitment Period within five
Business Days of such notification.
25.5 Agency and Other Fees
The Parent shall pay (or shall procure that the Borrowers shall pay)
to the Agent for its own account the agency fees specified in the
letter dated on or about the Second Restatement Amendment Effective
Date from the Agent to the Parent at the times, and in the amounts,
specified in such letter.
26. COSTS AND EXPENSES
26.1 Transaction Expenses
The Borrowers (acting through the Parent) shall, from time to time on
demand of the Agent, reimburse each of the Agent and the Arrangers
for all reasonable costs and expenses (including legal fees) together
with any VAT thereon incurred by it in connection with the
negotiation, preparation and execution of the Finance Documents, any
other document referred to in the Finance Documents and the
completion of the transactions therein contemplated.
26.2 Preservation and Enforcement of Rights
The Borrowers, acting through the Parent shall, from time to time on
demand of the Agent, reimburse the Finance Parties for all costs and
expenses (including legal fees) on a full indemnity basis together
with any VAT thereon incurred in or in connection with the
preservation and/or enforcement of any of the rights of the Finance
Parties under the Finance Documents and any document referred to in
the Finance Documents a(including, without limitation, any costs and
expenses reasonably incurred in relation to any investigation as to
whether or not an Event of Default might have occurred or is likely
to occur or any steps necessary or desirable in connection with any
proposal for remedying or otherwise resolving an Event of Default or
Potential Event of Default). For the avoidance of doubt, if the Term
Banks or the Revolving Banks shall decide at any time in connection
with the Finance Documents that they require separate advisors, the
cost of separate advisors shall be reimbursed on the terms and
subject to the conditions of this Clause 26.2.
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26.3 Stamp Taxes
The Borrowers, acting through the Parent, shall pay all stamp,
registration and other taxes to which the Finance Documents or any
judgment given in connection therewith is or at any time may be
subject and shall, from time to time on demand of the Agent,
indemnify the Finance Parties against any liabilities, costs, claims
and expenses resulting from any failure to pay or any delay in paying
any such tax.
26.4 Amendment Costs
If an Obligor requests any amendment, waiver or consent then the
Borrowers, acting through the Parent, shall, within five Business
Days of demand by the Agent, reimburse the Finance Parties for all
costs and expenses (including legal fees) together with any VAT
thereon reasonably incurred by such person in responding to or
complying with such request.
26.5 Banks' Liabilities for Costs
If any of the Borrowers fail to perform any of its obligations under
this Clause 26, each Bank shall, in its Proportion, indemnify each of
the Agent and the Arrangers against any loss incurred by any of them
as a result of such failure.
27. DEFAULT INTEREST AND BREAK COSTS
27.1 Default Interest Periods
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 30 (Payments) or if any
sum due and payable by an Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment (in
either case an "Unpaid Sum"), the period beginning on such due date
or, as the case may be, the date of such judgment and ending on the
date upon which the obligation of such Obligor to pay such sum is
discharged shall be divided into successive periods (each an
"Interest Period"), each of which (other than the first) shall start
on the last day of the preceding Interest Period and the duration of
each of which shall (except as otherwise provided in this Clause 27)
be selected by the Agent.
27.2 Default Interest
An Unpaid Sum shall bear interest during each Interest Period in
respect thereof at the rate per annum which is one per cent. per
annum above the percentage rate which would apply if such Unpaid Sum
had been an Advance under the Term Facility (to the extent that the
Unpaid Sum is owed to the Term Banks) or the Revolving Facility (to
the extent that the Unpaid Sum is owed to the Revolving Banks) in the
amount and currency of such Unpaid Sum and for the same Term or
Interest Period, provided that if such Unpaid Sum relates to an
Advance which became due and payable on a day other than the last day
of a Term or Interest Period relating thereto:
27.2.1 the first Interest Period applicable to such Unpaid Sum
shall be of a duration equal to the unexpired portion of the
current Term or Interest Period relating to that Advance;
and
27.2.2 the percentage rate of interest applicable thereto from time
to time during such period shall be that which exceeds by
one per cent. the rate which would have
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been applicable to it had it not so fallen due provided that
the Revolving Margin shall be, or be deemed to be:
(a) prior to the date falling six months after the
Second Restatement Amendment Effective Date, 3.50
per cent. per annum; and
(b) at all times thereafter 4.00 per cent. per annum.
27.3 Payment of Default Interest
Any interest which shall have accrued under Clause 27.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and
shall be paid by the Obligor owing such Unpaid Sum to the Finance
Parties to whom such Unpaid Sum is owed on the last day of the
Interest Period in respect thereof or on such other dates as the
Agent may specify by notice to such Obligor.
27.4 Break Costs
If any Bank or the Agent on its behalf receives or recovers all or
any part of such Bank's share of an Advance or Unpaid Sum otherwise
than on the last day of the Term or Interest Period relating thereto,
the Borrowers (acting through the Parent) shall pay to the Agent on
demand for account of such Bank an amount equal to the amount (if
any) by which (a) the additional interest which would have been
payable on the amount so received or recovered had it been received
or recovered on the last day of that Term or Interest Period exceeds
(b) the amount of interest which in the opinion of the Agent would
have been payable to the Agent on the last day of that Term or
Interest Period in respect of a deposit in the currency of the amount
so received or recovered equal to the amount so received or recovered
placed by it with a prime bank in London for a period starting on the
Business Day following the date of such receipt or recovery and
ending on the last day of that Term or Interest Period.
28. BORROWERS' INDEMNITIES
28.1 Borrowers' Indemnity
The Borrowers, acting through the Parent, undertake to indemnify:
28.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, which it may sustain or incur as a consequence of
the occurrence of any Event of Default or any default by any
Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance Documents;
28.1.2 each Bank against any cost or loss it may suffer under
Clause 26.5 (Banks' Liabilities for Costs) or Clause 33.6
(Indemnification); and
28.1.3 each Bank against any cost or loss it may suffer or incur as
a result of its funding or making arrangements to fund its
portion of an Advance requested by any Borrower but not made
by reason of the operation of any one or more of the
provisions hereof.
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28.2 Currency Indemnity
If any sum (a "Sum") due from an Obligor under the Finance Documents
or any order or judgment given or made in relation thereto has to be
converted from the currency (the "First Currency") in which such Sum
is payable into another currency (the "Second Currency") for the
purpose of:
28.2.1 making or filing a claim or proof against such Obligor; or
28.2.2 obtaining or enforcing an order or judgment in any court or
other tribunal,
the Borrowers, acting through the Parent, shall indemnify each person
to whom such Sum is due from and against any loss suffered or
incurred as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert such Sum from the First
Currency into the Second Currency and (b) the rate or rates of
exchange available to such person at the time of receipt of such Sum.
29. CURRENCY OF ACCOUNT AND PAYMENT
Sterling is the currency of account and payment for each and every
sum at any time due from an Obligor hereunder, provided that:
29.1.1 each payment in respect of costs and expenses shall be made
in the currency in which the same were incurred; and
29.1.2 each payment pursuant to Clause 14.2 (Tax Indemnity), Clause
16.1 (Increased Costs) or Clause 28 (Borrowers' Indemnities)
shall be made in the currency specified by the party
claiming thereunder.
30. PAYMENTS
30.1 Notification of Payments
Without prejudice to the liability of each party hereto promptly to
pay each amount owing by it hereunder on the due date therefor,
whenever a payment is expected to be made by any of the parties
hereto, the Agent shall, at least two Business Days prior to the
expected date for such payment, notify all the parties hereto of the
amount, currency and timing of such payment and the identity of the
party liable to make such payment.
30.2 Payments to the Agent
On each date on which this Agreement requires an amount to be paid by
an Obligor or a Bank, such Obligor or, as the case may be, such Bank
shall make the same available to the Agent for value on the due date
at such time and in such funds and to such account with such bank as
the Agent shall (acting reasonably) specify from time to time.
30.3 Payments by the Agent
30.3.1 Save as otherwise provided herein, each payment received by
the Agent pursuant to Clause 30.2 (Payments to the Agent)
shall:
(a) in the case of a payment received for the account
of a Borrower, be made available by the Agent to
such Borrower by application:
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(i) first, in or towards payment on the same
day of any amount then due from such
Borrower hereunder to the person from whom
the amount was so received; and
(ii) secondly, in or towards payment on the
same day to the account of such Borrower
with such bank in London as such Borrower
shall have previously notified to the
Agent for this purpose; and
(b) in the case of any other payment, be made
available by the Agent to the person entitled to
receive such payment in accordance with this
Agreement (in the case of a Bank, for the account
of its Facility Office) for value the same day by
transfer to such account of such person with such
bank in London as such person shall have
previously notified to the Agent.
30.3.2 A payment will be deemed to have been made by the Agent on
the date on which it is required to be made under this
Agreement if the Agent has, on or before that date, taken
steps to make that payment in accordance with the
regulations or operating procedures of the clearing or
settlement system used by the Agent in order to make the
payment.
30.4 No Set-off
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall
be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
30.5 Clawback
Where a sum is to be paid hereunder to the Agent for account of
another person, the Agent shall not be obliged to make the same
available to that other person until it has been able to establish to
its satisfaction that it has actually received such sum, but if it
does so and it proves to be the case that it had not actually
received such sum, then the person to whom such sum was so made
available shall on request refund the same to the Agent together with
an amount sufficient to indemnify the Agent against any cost or loss
it may have suffered or incurred by reason of its having paid out
such sum prior to its having received such sum.
30.6 Partial Payments
If and whenever a payment is made by an Obligor hereunder and the
Agent receives an amount less than the due amount of such payment the
Agent may apply the amount received towards the obligations of that
Obligor under this Agreement in the following order:
30.6.1 first, in or towards payment of any unpaid costs and
expenses of the Agent;
30.6.2 secondly, in or towards payment pro rata of any accrued
interest or commitment commission due but unpaid;
30.6.3 thirdly, in or towards payment pro rata of any principal due
but unpaid; and
30.6.4 fourthly, in or towards payment pro rata of any other sum
due but unpaid.
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30.7 Variation of Partial Payments
The order of partial payments set out in Clause 30.6 (Partial
Payments) shall override any appropriation made by the Obligor to
which the partial payment relates but the order set out in
sub-clauses 30.6.2, 30.6.3 and 30.6.4 of Clause 30.6 (Partial
Payments) may be varied if agreed by all the Banks.
30.8 Business Days
30.8.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
30.8.2 During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
31. SET-OFF
31.1 Contractual Set-off
Each Obligor authorises each Bank, at any time any sum is due and
payable hereunder and remains unpaid, to apply any credit balance to
which such Obligor is entitled on any account of such Obligor with
such Bank in satisfaction of any sum due and payable from such
Obligor to such Bank under the Finance Documents but unpaid. For this
purpose, each Bank is authorised to purchase with the moneys standing
to the credit of any such account such other currencies as may be
necessary to effect such application.
31.2 Set-off not Mandatory
No Bank shall be obliged to exercise any right given to it by Clause
31.1 (Contractual Set-off).
32. SHARING
32.1 Payments to Banks
If a Bank (a "Recovering Bank") applies any receipt or recovery from
an Obligor to a payment due under this Agreement and such amount is
received or recovered other than in accordance with Clause 30
(Payments), then such Recovering Bank shall:
32.1.1 notify the Agent of such receipt or recovery; and
32.1.2 at the request of the Agent, promptly pay to the Agent an
amount (the "Sharing Payment") equal to such receipt or
recovery less any amount which the Agent determines may be
retained by such Recovering Bank as its share of any payment
to be made in accordance with Clause 30.6 (Partial
Payments).
32.2 Redistribution of Payments
The Agent shall treat the Sharing Payment as if it had been paid by
the relevant Obligor and distribute it between the Finance Parties
(other than the Recovering Bank) in accordance with Clause 30.6
(Partial Payments).
32.3 Recovering Bank's Rights
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 32.2
(Redistribution of Payments) in respect of
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the Sharing Payment (and the relevant Obligor shall be liable to the
Recovering Bank in an amount equal to the Sharing Payment).
32.4 Repayable Recoveries
If any part of the Sharing Payment received or recovered by a
Recovering Bank becomes repayable and is repaid by such Recovering
Bank, then:
32.4.1 each party which has received a share of such Sharing
Payment pursuant to Clause 32.2 (Redistribution of Payments)
shall, upon request of the Agent, pay to the Agent for
account of such Recovering Bank an amount equal to its share
of such Sharing Payment; and
32.4.2 such Recovering Bank's rights of subrogation in respect of
any reimbursement shall be cancelled and the relevant
Obligor will be liable to the reimbursing party for the
amount so reimbursed.
32.5 Exception
This Clause 32 shall not apply if the Recovering Bank would not,
after making any payment pursuant hereto, have a valid and
enforceable claim against the relevant Obligor.
32.6 Recoveries Through Legal Proceedings
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and,
as a result thereof or in connection therewith, receives any amount,
then such Bank shall not be required to share any portion of such
amount with any Bank which has the legal right to, but does not, join
in such action or commence and diligently prosecute a separate action
to enforce its rights in another court.
32.7 Secured Hedging Agreements
The Parent shall provide the Agent with, as soon as is reasonably
practicable after the same are entered into, copies of the Secured
Hedging Agreements entered into by either it or any member of the UK
Group pursuant to Clause 22.31 (Hedging). The Parent and each Hedge
Counterparty shall ensure that each Secured Hedging Agreement to
which (a) (in the case of the Parent) it or any other member of the
UK Group is a party or (b) (in the case of a Hedge Counterparty) it
is a party:
32.7.1 provides for "two-way payments" in the event of a
termination of a hedging transaction entered into pursuant
to a Secured Hedging Agreement whether upon a termination
event or an event of default (each as defined in the Secured
Hedging Agreement), meaning that the defaulting party under
that Secured Hedging Agreement will be entitled to receive
payment under the relevant termination provisions if the net
replacement value of all terminated transactions effected
under the Hedging Agreement is in its favour; and
32.7.2 includes as an event of default (as defined in the Secured
Hedging Agreement) an Event of Default.
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32.8 Termination of Secured Hedging Agreements
Each Hedge Counterparty shall:
32.8.1 if (a) any hedging transaction under any Secured Hedging
Agreement to which it is party is terminated, (b) a
settlement amount or other amount falls due from it to any
member of the UK Group under such a Secured Hedging
Agreement and (c) the Security has become, and remains at
the proposed date of payment enforceable, pay such
settlement amount to the Security Trustee; and
32.8.2 unless the Agent otherwise instructs it, exercise any rights
it may have to terminate the hedging transactions under the
Secured Hedging Agreements to which it is party as soon as
is reasonably practicable after the date on which the Agent
declares all or any part of the Advances to be immediately
due and payable in accordance with either Clause 23.17
(Acceleration and Cancellation) or Clause 23.18 (Advances
Due on Demand).
32.9 Rights of Hedge Counterparties
Whilst any Obligor has any actual or contingent liabilities under the
Finance Documents, except with the prior consent of the Agent (acting
on the instructions of an Instructing Group), no Hedge Counterparty
will:
32.9.1 demand or receive payment, prepayment (other than a
prepayment arising due to the prepayment of an Advance
permitted by this Agreement), repayment, or any distribution
in respect of or on account of any of the Hedging
Liabilities in cash or in kind or apply any money or
property in or towards the discharge of any Hedging
Liabilities except for:
(a) scheduled payments arising under the terms of the
Secured Hedging Agreements; and
(b) the proceeds of enforcement of the Security
Documents received and applied in the order
permitted by the Security Trust Agreement;
32.9.2 exercise any right it might otherwise have pursuant to any
Secured Hedging Agreement to terminate any hedging
transactions under such Secured Hedging Agreement or to
refuse to make any payment due from it under such hedging
transactions until the Agent declares all or any part of the
Advances to be immediately due and payable in accordance
with either Clause 23.17 (Acceleration and Cancellation) or
Clause 23.18 (Advances Due on Demand);
32.9.3 discharge all or any part of the Hedging Liabilities by
set-off, any right of combination of accounts or otherwise
except if and to the extent that those Hedging Liabilities
are permitted to be paid under sub-clause 32.9.1(a); or
32.9.4 take, accept or receive the benefit of any Encumbrance or
guarantee in respect of the Hedging Liabilities other than
under (a) the Finance Documents or (b) any other Encumbrance
or guarantee granted for the full benefit of the Finance
Parties.
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32.10 Amendment of Secured Hedging Agreements
Except with the prior written consent of the Agent (acting on the
instructions of an Instructing Group), neither a member of the UK
Group nor a Hedge Counterparty will amend, vary, supplement or allow
to be superseded any provision of the Secured Hedging Agreements
which would result in:
32.10.1 any provision in the Secured Hedging Agreements being
amended unless the Hedge Counterparty concerned, acting
reasonably and in good faith, certifies to the Agent that it
considers such amendment does not impose restrictions or
obligations or conditions on any member of the UK Group
which are more onerous than those originally provided for in
the Secured Hedging Agreements;
32.10.2 any payment under the Secured Hedging Agreements being
required to be made by a member of the UK Group earlier than
the date originally provided for in the Secured Hedging
Agreements (except where that payment is made as a result of
the prepayment of an Advance permitted by this Agreement);
or
32.10.3 any member of the UK Group becoming liable to make an
additional payment (or increase an existing payment) under
any of the Secured Hedging Agreements, where such liability
does not arise from the original provisions of the Secured
Hedging Agreements.
33. THE AGENT, THE ARRANGERS AND THE BANKS
33.1 Appointment of the Agent
Each of the Arrangers and the Banks hereby appoints the Agent to act
as its agent in connection herewith and authorises the Agent to
exercise such rights, powers, authorities and discretions as are
specifically delegated to the Agent by the terms hereof together with
all such rights, powers, authorities and discretions as are
reasonably incidental thereto.
33.2 Agent's Discretions
The Agent may:
33.2.1 assume, unless it has, in its capacity as agent for the
Banks, received notice to the contrary from any other party
hereto, that (a) any representation made or deemed to be
made by the Parent, New NTL or an Obligor in connection with
the Finance Documents is true, (b) no Event of Default or
Potential Event of Default has occurred, (c) neither the
Parent, New NTL nor any Obligor is in breach of or default
under its obligations under the Finance Documents and (d)
any right, power, authority or discretion vested herein upon
an Instructing Group, the Banks or any other person or group
of persons has not been exercised;
33.2.2 assume that (a) the Facility Office of each Bank is that
notified to it by such Bank in writing and (b) the
information provided by each Bank pursuant to Clause 33.15
(Banks' Mandatory Cost Details), Clause 40 (Notices) and
Schedule 11 (Mandatory Costs) is true and correct in all
respects until it has received from such Bank notice of a
change to the Facility Office or any such
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information and act upon any such notice until the same is
superseded by a further notice;
33.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable
and rely upon any advice so obtained;
33.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of an Obligor upon a
certificate signed by or on behalf of such Obligor;
33.2.5 rely upon any communication or document believed by it to be
genuine;
33.2.6 refrain from exercising any right, power or discretion
vested in it as agent hereunder unless and until instructed
by an Instructing Group as to whether or not such right,
power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised;
33.2.7 refrain from acting in accordance with any instructions of
an Instructing Group to begin any legal action or proceeding
arising out of or in connection with the Finance Documents
until it shall have received such security as it may require
(whether by way of payment in advance or otherwise) for all
costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it will or
may expend or incur in complying with such instructions; and
33.2.8 assume (unless it has specific notice to the contrary) that
any notice or request made by the Parent is made on behalf
of all the Obligors.
33.3 Agent's Obligations
The Agent shall:
33.3.1 promptly inform each Bank of the contents of any written
notice or document received by it in its capacity as Agent
from the Parent, New NTL or an Obligor under the Finance
Documents;
33.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance
of or compliance with its obligations under the Finance
Documents of which the Agent has notice from any other party
hereto;
33.3.3 promptly notify each Bank of the occurrence of an Event of
Default under Clause 23.1 (Failure to Pay);
33.3.4 promptly notify each Bank of all or any part of the Advances
being declared to be immediately due and payable in
accordance with either Clause 23.17 (Acceleration and
Cancellation) or Clause 23.18 (Advances Due on Demand);
33.3.5 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an
Instructing Group (or if specifically provided for in the
Finance Documents, Term Instructing Group or Revolving
Instructing
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Group as the case may be), which instructions shall be
binding on the Arrangers and the Banks;
33.3.6 if so instructed by an Instructing Group (or if specifically
provided for in the Finance Documents, Term Instructing
Group or Revolving Instructing Group as the case may be),
refrain from exercising any right, power or discretion
vested in it as agent hereunder; and
33.3.7 unless it has a Bank's consent, refrain from acting on
behalf of that Bank in any legal or arbitration proceedings
relating to any Finance Document.
The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
33.4 Excluded Obligations
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor an Arranger shall:
33.4.1 be bound to enquire as to (a) whether or not any
representation made or deemed to be made by the Parent, New
NTL or an Obligor in connection with the Finance Documents
is true, (b) the occurrence or otherwise of any Event of
Default or Potential Event of Default, (c) the performance
by either the Parent, New NTL or an Obligor of its
obligations under the Finance Documents or (d) any breach of
or default by either the Parent, New NTL or an Obligor of or
under its obligations under the Finance Documents;
33.4.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
33.4.3 be bound to disclose to any other person any information
relating to any member of the Group if (a) such information
is confidential or (b) such disclosure would or might in its
reasonable opinion constitute a breach of any law or a
breach of fiduciary duty;
33.4.4 be under any obligations other than those for which express
provision is made herein; or
33.4.5 be or be deemed to be a fiduciary for any other party
hereto.
33.5 Delegation
The Agent may delegate, transfer or assign to any of its holding
companies, subsidiaries or subsidiaries of any of its holding
companies all or any of the rights, powers, authorities and
discretions vested in it under the Finance Documents and the
performance of its duties in accordance therewith, and such
delegation, transfer or assignment may be made upon such terms and
subject to such conditions (including the power to sub-delegate) and
subject to such regulations as the Agent may think fit (and the term
"Agent" as used in this Agreement shall include any such delegate).
33.6 Indemnification
Each Bank shall, in its Proportion, from time to time on demand by
the Agent, indemnify the Agent against any and all costs, claims,
losses, expenses (including legal fees) and
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liabilities together with any VAT thereon which the Agent may incur,
otherwise than by reason of its own gross negligence or wilful
misconduct, in acting in its capacity as agent under the Finance
Documents (other than any which have been reimbursed by the Borrowers
pursuant to Clause 28.1 (Borrowers' Indemnity)).
33.7 Exclusion of Liabilities
Each Revolving Bank which became a party hereto prior to the Second
Restatement Amendment Effective Date confirmed that it has read the
Notice to Recipients in the Information Memorandum, that it has
complied with the Recipients' Obligations (as set out in the Notice
to Recipients) and, accordingly, that it entered into this Agreement
on the basis of the Notice to Recipients. Similarly, each of the
Revolving Banks which became a party hereto prior to the Second
Restatement Amendment Effective Date accepted that the Notice to
Recipients in the Information Memorandum was applicable also to the
Agent as if the Agent had been named in addition to the Arrangers in
the Important Notice.
Each of the Banks accepts that it entered into this Agreement in
reliance only on the representations of the Parent, New NTL and the
Obligors in this Agreement and on its own investigations, that it has
not relied on the Arrangers and that, except as set out below, it
neither has nor will have any claims against the Arrangers arising
from or in connection with this Agreement.
Except in the case of gross negligence or wilful default, neither the
Agent nor any Arranger accepts any responsibility to any of the
Banks:
33.7.1 for the adequacy, accuracy and/or completeness of the
Information Memorandum or any other information supplied by
the Agent or the Arrangers, by the Parent, New NTL or an
Obligor or by any other person in connection with the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Finance Documents;
33.7.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection
with the Finance Documents; or
33.7.3 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to any of them by or in
connection with the Finance Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection
with the Finance Documents.
Accordingly, neither the Agent nor an Arranger shall be under any
liability (whether in negligence or otherwise) in respect of such
matters, save in the case of gross negligence or wilful misconduct.
33.8 No Actions
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Agent or the
Arrangers any claim it might have against any of
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them in respect of the matters referred to in Clause 33.7 (Exclusion
of Liabilities). Any third party referred to in this Clause 33.8 may
enjoy the benefit of, or enforce the terms of, this Clause 33.8 in
accordance with the provisions of the Contracts (Rights of Third
Parties) Act 1999.
33.9 Business with the Group
The Agent and the Arrangers may accept deposits from, lend money to
and generally engage in any kind of banking or other business with
any member of the Group whether or not it may or does lead to a
conflict with the interests of any of the Banks. Similarly, the Agent
or the Arrangers may undertake business with or for others even
though it may lead to a conflict with the interests of any of the
Banks.
33.10 Resignation
The Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days'
prior notice to that effect to each of the other parties hereto,
provided that no such resignation shall be effective until a
successor for the Agent is appointed in accordance with the
succeeding provisions of this Clause 33.
33.11 Removal of Agent
An Instructing Group may, after consultation with the Parent, remove
the Agent from its role as agent under the Finance Documents by
giving notice to that effect to each of the other parties hereto.
Such removal shall take effect only when a successor to the Agent is
appointed in accordance with the terms of the Finance Documents.
33.12 Successor Agent
If the Agent gives notice of its resignation pursuant to Clause 33.10
(Resignation) or it is removed pursuant to Clause 33.11 (Removal of
Agent), then any reputable and experienced bank or other financial
institution may, with the prior consent of the Parent be appointed as
a successor to the Agent by an Instructing Group during the period of
such notice but, if no such successor is so appointed, the Agent may
appoint such a successor itself.
33.13 Rights and Obligations
If a successor to the Agent is appointed under the provisions of
Clause 33.12 (Successor Agent), then (a) the retiring or departing
Agent shall be discharged from any further obligation under the
Finance Documents but shall remain entitled to the benefit of the
provisions of this Clause 33 and (b) its successor and each of the
other parties hereto shall have the same rights and obligations
amongst themselves as they would have had if such successor had
originally been a party hereto.
33.14 Own Responsibility
It is understood and agreed by each Bank that at all times it has
itself been, and will continue to be, solely responsible for making
its own independent appraisal of and investigation into all risks
arising under or in connection with the Finance Documents including,
but not limited to:
33.14.1 the financial condition, creditworthiness, condition,
affairs, status and nature of each member of the Group;
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33.14.2 the legality, validity, effectiveness, adequacy and
enforceability of the Finance Documents and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection
with the Finance Documents;
33.14.3 whether such Bank has recourse, and the nature and extent of
that recourse, against an Obligor or any other person or any
of their respective assets under or in connection with the
Finance Documents, the transactions therein contemplated or
any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with the Finance Documents; and
33.14.4 the adequacy, accuracy and/or completeness of the
Information Memorandum and any other information provided by
the Agent or the Arrangers, the Parent, New NTL or an
Obligor or by any other person in connection with the
Finance Documents, the transactions contemplated therein or
any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with the Finance Documents.
Accordingly, each Bank acknowledges to the Agent and the Arrangers
that it has not relied on and will not hereafter rely on the Agent
and the Arrangers or any of them in respect of any of these matters.
33.15 Banks' Mandatory Cost Details
Each Bank will supply the Agent with such information and in such
detail as the Agent may require in order to calculate the Mandatory
Cost Rate in accordance with Schedule 11 (Mandatory Costs).
33.16 Receipt of Information by the Agent
Any information or document received by the Agent shall only be
treated as having been received by the Agent if the same has been
delivered to the Agent's agency department in accordance with Clause
40 (Notices). Accordingly, any information or documents received by
the Agent other than by its agency department in accordance with
Clause 40 (Notices) is not by reason of that receipt to be treated as
having been received by the Agent unless and until the Agent's agency
department has received actual notice of the same in accordance with
such Clause. Save as expressly set out in this Agreement and, unless
the Agent's agency department shall have received information or
documents in accordance with Clause 40 (Notices), the Agent shall
have no duty to disclose, and shall not be liable for the failure to
disclose, any information or documents, that are communicated to or
obtained by the Agent.
34. ASSIGNMENTS AND TRANSFERS
34.1 Binding Agreement
The Finance Documents shall be binding upon and enure to the benefit
of each party hereto and its or any subsequent successors and
Transferees.
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34.2 No Assignments and Transfers by NTL
Neither the Parent, New NTL nor any Obligor shall be entitled to
assign or transfer all or any of its rights, benefits and obligations
under the Finance Documents, other than as permitted pursuant to the
terms of this Agreement.
34.3 Assignment and Transfers by Banks
34.3.1 Any Bank may, at any time, assign all or any of its rights
and benefits hereunder or transfer in accordance with Clause
34.5 (Transfers by Banks) all or any of its rights, benefits
and obligations hereunder to, or enter into any form of
sub-participation agreement with, a bank or financial
institution.
34.3.2 The prior written consent of the Parent (which shall be
deemed to be given on its own behalf and on behalf of the
other Obligors) is required for an assignment or transfer by
a Bank unless the assignment or transfer is to:
(a) another Bank; or
(b) any subsidiary or holding company (or to any
subsidiary of any holding company) of the
transferring Bank.
34.3.3 The Parent's consent must not be (a) unreasonably delayed or
withheld or (b) withheld solely because the assignment or
transfer may result in an increase to the Mandatory Cost
Rate.
34.4 Assignments by Banks
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 34.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has
delivered a notice to the Agent confirming in favour of the Agent,
the Arrangers and the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it
had been an original party hereto as a Bank (whereupon such assignee
shall become a party hereto as a "Bank"), the Agent, the Arrangers
and the other Banks shall not be obliged to recognise such assignee
as having the rights against each of them which it would have had if
it had been such a party hereto.
34.5 Transfers by Banks
If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations under the Finance Documents as contemplated in
Clause 34.3 (Assignments and Transfers by Banks), then such transfer
may be effected by the delivery to the Agent of a duly completed
Transfer Certificate executed by such Bank and the relevant
Transferee in which event, on the later of the Transfer Date
specified in such Transfer Certificate and the fifth Business Day
after (or such earlier Business Day endorsed by the Agent on such
Transfer Certificate falling on or after) the date of delivery of
such Transfer Certificate to the Agent:
34.5.1 to the extent that in such Transfer Certificate the Bank
party thereto seeks to transfer by novation its rights,
benefits and obligations under the Finance Documents, the
Parent, New NTL and each of the Obligors and such Bank shall
be released from further obligations towards one another
under the Finance Documents and their respective rights
against one another shall be cancelled
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(such rights and obligations being referred to in this
Clause 34.5 as "discharged rights and obligations");
34.5.2 the Parent, New NTL and each of the Obligors and the
Transferee party thereto shall assume obligations towards
one another and/or acquire rights against one another which
differ from such discharged rights and obligations only
insofar as the Parent, New NTL, the Obligors and such
Transferee have assumed and/or acquired the same in place of
the Parent, New NTL, the Obligors and such Bank;
34.5.3 the Agent, the Arrangers, such Transferee and the other
Banks shall acquire the same rights and benefits and assume
the same obligations between themselves as they would have
acquired and assumed had such Transferee been an original
party hereto as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such
transfer and to that extent the Agent, the Arrangers and the
relevant Bank shall each be released from further
obligations to each other under the Finance Documents; and
34.5.4 such Transferee shall become a party hereto as a "Bank".
34.6 No Increased Obligations
If:
34.6.1 a Bank assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office;
and
34.6.2 as a result of circumstances existing at the date of the
assignment, transfer or change of Facility Office, an
Obligor would be obliged to make a payment to the assignee,
Transferee or the Bank acting through its new Facility
Office under Clause 14.1 (Tax Gross-Up), 14.2 (Tax
Indemnity) or Clause 16 (Increased Costs),
then the assignee, Transferee or the Bank acting through its new
Facility Office shall only be entitled to receive payment under those
Clauses to the same extent as the assignor, transferor or the Bank
acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
34.7 Assignment and Transfer Fees
On the date upon which an assignment takes effect pursuant to Clause
34.4 (Assignments by Banks) or a transfer takes effect pursuant to
Clause 34.5 (Transfers by Banks) the relevant assignee or Transferee
shall pay to the Agent for its own account a fee of (pound)1,000.
34.8 Disclosure of Information
Any Bank may disclose to any person:
34.8.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under the Finance Documents;
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34.8.2 with (or through) whom such Bank enters into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to be
made by reference to, the Finance Documents or any Obligor;
34.8.3 to whom information may be required to be disclosed by any
applicable law; or
34.8.4 any of its subsidiaries or any holding company (or any
subsidiary of a holding company),
such information about the Parent, New NTL, any Obligor or the Group
and the Finance Documents as such Bank shall consider appropriate
provided that, in relation to sub-clauses 34.8.1 and 34.8.2, the
person to whom such information is to be given has entered into a
Confidentiality Undertaking. Any Bank which discloses any such
information to any of the persons referred to in sub-clause 34.8.4
shall procure that those persons keep the information they receive
confidential (save for disclosures they are required to make by any
applicable law).
34.9 Notification
The Agent shall, within fourteen days of receiving a Transfer
Certificate or a notice relating to an assignment pursuant to Clause
34.4 (Assignments by Banks), notify the Parent (on its own behalf and
on behalf of the other Obligors) of any assignment or transfer
completed pursuant to this Clause 34.
34.10 Morgan Stanley Commitment
References to the Revolving Commitment of Morgan Stanley Dean Witter
Bank Limited in relation to the Revolving Facility shall be construed
as references to the aggregate Revolving Commitment in relation to
the Revolving Facility of Morgan Stanley Dean Witter Bank Limited and
Morgan Stanley Senior Funding, Inc., in such proportions as Morgan
Stanley Dean Witter Bank Limited notifies to the Agent from time to
time and Morgan Stanley Senior Funding, Inc. is a party to this
Agreement to give effect to such Revolving Commitment (as so
notified).
35. CHANGE OF CURRENCY
35.1 Change of currency
35.1.1 Unless otherwise prohibited by law, if more than one
currency or currency unit are at the same time recognised by
the Bank of England as the lawful currency of the United
Kingdom, then:
(a) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents
in, sterling shall be translated into, or paid in,
the currency or currency unit of the United
Kingdom designated by the Agent (after
consultation with the Parent); and
(b) any translation from one currency or currency unit
to another shall be at the official rate of
exchange recognised by the Bank of England for the
conversion of that currency or currency unit into
the other, rounded up or down by the Agent (acting
reasonably).
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35.1.2 If a change in the currency of the United Kingdom occurs,
this Agreement will, to the extent the Agent (acting
reasonably and after consultation with the Parent) specifies
to be necessary, be amended to comply with any generally
accepted conventions and market practice in the London
interbank market and otherwise to reflect the change in
currency.
35.2 Increased Costs
The Parent shall, from time to time on demand of the Agent, pay to
the Agent for the account of such Bank the amount of any cost or
increased cost incurred by, or of any reduction in any amount payable
to or in the effective return on its capital to, or of interest or
other return foregone by, a Bank or any holding company of such Bank
as a result of the introduction of, changeover to or operation of the
euro in the United Kingdom, other than any such cost or reduction or
amount foregone reflected in the Mandatory Cost Rate.
36. ADDITIONAL BORROWERS
36.1 Request for Additional Borrower
The Parent may request that any member of the UK Group become an
Additional Borrower under the Revolving Facility by delivering to the
Agent a Borrower Accession Memorandum duly executed by the Parent and
such member of the UK Group, together with the documents and other
evidence listed in Part A (Accession Conditions Precedent) and Part B
(Security Documentation) of Schedule 9 (Additional Conditions
Precedent) in relation to such member of the UK Group.
36.2 Borrower Conditions Precedent
A company, in respect of which the Parent has delivered a Borrower
Accession Memorandum to the Agent, shall become an Additional
Borrower under the Revolving Facility and assume all the rights,
benefits and obligations of a Borrower as if it had originally been a
Borrower under the Revolving Facility on the date on which the Agent
notifies the Parent that the Agent has received, in form and
substance satisfactory to it, all documents and other evidence listed
in Part A (Accession Conditions Precedent) and Part B (Security
Documentation) of Schedule 9 (Additional Conditions Precedent) in
relation to such member of the UK Group, unless on such date an Event
of Default or Potential Event of Default is continuing or would occur
as a result of such member of the UK Group becoming an Additional
Borrower.
36.3 Resignation of a Borrower
If at any time a Borrower is under no actual or contingent obligation
under or pursuant to any Finance Document, the Parent may request
that such Borrower shall cease to be a Borrower by delivering to the
Agent a Resignation Notice. Such Resignation Notice shall be accepted
by the Agent on the date on which it notifies the Parent that it is
satisfied that such Borrower is under no actual or contingent
obligation under or pursuant to any Finance Document and such
Borrower shall immediately cease to be a Borrower and shall have no
further rights, benefits or obligations hereunder save for those
which arose prior to such date.
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37. ACCESSION OF GUARANTORS
37.1 Request for Guarantor
The Parent may request that any member of the UK Group become a
Guarantor by delivering to the Agent a Guarantor Accession Memorandum
duly executed by the Parent and such member of the UK Group, together
with the documents and other evidence listed in Part A (Accession
Conditions Precedent) and Part B (Security Documentation) of Schedule
9 (Additional Conditions Precedent) in relation to such subsidiary.
37.2 Guarantor Conditions Precedent
A company, in respect of which the Parent has delivered a Guarantor
Accession Memorandum to the Agent, shall become a Guarantor and
assume all the rights, benefits and obligations of a Guarantor as if
it had been an original party hereto as a Guarantor on the date on
which the Agent notifies the Parent that it has received, in form and
substance satisfactory to it, all the documents and other evidence
listed in Part A (Accession Conditions Precedent) and Part B
(Security Documentation) of Schedule 9 (Additional Conditions
Precedent).
37.3 Resignation of a Guarantor
The Parent may request that a Guarantor (other than the Parent)
ceases to be a Guarantor by delivering to the Agent a Resignation
Notice. The Agent shall accept such Resignation Notice and notify the
Parent of its acceptance (whereupon such Guarantor shall immediately
cease to be a Guarantor and shall have no further rights, benefits or
obligations hereunder) if:
37.3.1 the Agent has received evidence, in form and substance
satisfactory to it, confirming that after the release of
such a Guarantor the requirements of Clause 22.25
(Guarantors) will continue to be satisfied; or
37.3.2 an Instructing Group has consented to such request,
unless on such date an Event of Default or Potential Event of Default
is continuing or would occur as a result of such cessation.
37.4 NTL Triangle Accession
The Parent may request that all the members of the NTL Triangle
Sub-Group become Guarantors by delivering to the Agent Guarantor
Accession Memoranda duly executed by the Parent and the members of
the NTL Triangle Sub-Group, together with the documents and other
evidence listed in Part A (Accession Conditions Precedent) and Part B
(Security Documentation) of Schedule 9 (Additional Conditions
Precedent) in relation to such members of the NTL Triangle Sub-Group.
37.5 NTL Triangle Accession Conditions Precedent
The members of the NTL Triangle Sub-Group, in respect of which the
Parent has delivered Guarantor Accession Memoranda to the Agent,
shall became Guarantors and each assume all the rights, benefits and
obligations of a Guarantor as if it had been an original party hereto
as a Guarantor on the date on which the Agent notifies the Parent
that it has received, in form and substance satisfactory to it:
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37.5.1 all the documents and other evidence listed in Part A
(Accession Conditions Precedent) and Part B (Security
Documentation) of Schedule 9 (Additional Conditions
Precedent);
37.5.2 a pro forma business plan (over a period ending no earlier
than 31 December in the year of the Term Final Maturity
Date), together with the key operating assumptions relating
thereto, such pro forma business plan demonstrating to the
satisfaction of an Instructing Group, acting in good faith:
(a) pro forma compliance with the financial covenants
set out in Clause 21 (Financial Condition) until
the Term Final Maturity Date; and
(b) that amounts available for drawdown under the
Revolving Facility and under other financing
sources committed to the UK Group are sufficient
to meet the UK Group's projected financing needs
until the Term Final Maturity Date; and
37.5.3 representations from the Parent to the Finance Parties (in
the form agreed by the Agent, acting reasonably) in relation
to such a business plan.
38. CALCULATIONS AND EVIDENCE OF DEBT
38.1 Basis of Accrual
Interest and commitment commission shall accrue from day to day and
shall be calculated on the basis of a year of 365 days (or, in any
case where market practice differs, in accordance with market
practice) and the actual number of days elapsed.
38.2 Quotations
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of
this Agreement, the rate for which such quotation was required shall
be determined from those quotations which are supplied to the Agent,
provided that, in relation to determining LIBOR, this Clause 38.2
shall not apply if only one Reference Bank supplies a quotation.
38.3 Evidence of Debt
Each Bank shall maintain in accordance with its usual practice
accounts evidencing the amounts from time to time lent by and owing
to it hereunder.
38.4 Control Accounts
The Agent shall maintain on its books a control account or accounts
in which shall be recorded (a) the amount of any Advance or any
Unpaid Sum and each Bank's share therein, (b) the amount of all
principal, interest and other sums due or to become due from an
Obligor and each Bank's share therein and (c) the amount of any sum
received or recovered by the Agent hereunder and each Bank's share
therein.
38.5 Prima Facie Evidence
In any legal action or proceeding arising out of or in connection
with this Agreement, the entries made in the accounts maintained
pursuant to Clause 38.3 (Evidence of Debt) and Clause 38.4 (Control
Accounts) shall be prima facie evidence of the existence and amounts
of the specified obligations of the Obligors.
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38.6 Certificates of Banks
A certificate of a Bank as to (a) the amount by which a sum payable
to it hereunder is to be increased under Clause 14.1 (Tax Gross-up),
(b) the amount for the time being required to indemnify it against
any such cost, payment or liability as is mentioned in Clause 14.2
(Tax Indemnity), Clause 16.1 (Increased Costs) or Clause 28.1
(Borrowers' Indemnity) or (c) the amount of any credit, relief,
remission or repayment as is mentioned in Clause 15.3 (Tax Credit
Payment), Clause 15.4 (Tax Credit Clawback) or Clause 27.4 (Break
Costs) shall, in the absence of manifest error, be prima facie
evidence of the existence and amounts of the specified obligations of
the Obligors.
38.7 Agent's Certificates
A certificate of the Agent as to the amount at any time due from a
Borrower hereunder or the amount which, but for any of the
obligations of such Borrower hereunder being or becoming void,
voidable, unenforceable or ineffective, at any time would have been
due from such Borrower hereunder shall, in the absence of manifest
error, be conclusive for the purposes of Clause 24 (Guarantee and
Indemnity).
39. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
39.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of
any Finance Party, any right or remedy under the Finance Documents
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise
thereof or the exercise of any other right or remedy. The rights and
remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
39.2 Partial Invalidity
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
40. NOTICES
40.1 Communications in Writing
Each communication to be made under the Finance Documents shall be
made in writing and, unless otherwise stated, shall be made by fax or
letter.
40.2 Addresses
Any communication or document to be made or delivered pursuant to the
Finance Documents shall be made or delivered to the address or fax
number (and the department or officer, if any, for whose attention
the communication is made):
40.2.1 in the case of the Parent, New NTL, the Post-Novation
Borrower, the Security Trustee, the Second Security Trustee
and the Agent, identified in Schedule 15 (Certain
Addresses);
40.2.2 in the case of each Bank, notified in writing to the Agent
prior to the Execution Date (or, in the case of a
Transferee, at the end of the Transfer Certificate to
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<page>
which it is a party as Transferee) or, in the case of an
Additional Finance Provider, notified in writing to the
Agent prior to the date on which it became a party to this
Agreement; and
40.2.3 in the case of each Additional Obligor, in the relevant
Accession Memorandum,
or to any substitute address, fax number or department or officer as
the Parent, New NTL, the Security Trustee, the Second Security
Trustee, an Obligor or a Bank may notify to the Agent (or the Agent
may notify to the Parent (on its own behalf and on behalf of the
other Obligors), the Security Trustee, the Second Security Trustee
and the Banks, if a change is made by the Agent) by not less than
five Business Days' notice. Any communication to be made to an
Obligor (other than the Parent) by fax shall be made to the fax
number identified with the Parent's name in Schedule 15 (Certain
Addresses). Any communication or document to be made or delivered to
an Obligor (other than the Parent) shall be copied to the Parent. Any
communication or document to be made or delivered to the Parent or
any Obligor pursuant to the Finance Documents shall be copied to New
NTL (at the address or fax number indicated with its name in Schedule
15 (Certain Addresses)).
40.3 Delivery
Any communication or document to be made or delivered by one person
to another under or in connection with the Finance Documents shall
only be effective:
40.3.1 if by way of fax, when received in legible form;
40.3.2 if by way of letter, when left at the relevant address or,
as the case may be, five days after being deposited in the
post postage prepaid in an envelope addressed to it at such
address; and
40.3.3 if a particular department or officer is specified as part
of the address details provided under Clause 40.2
(Addresses), if addressed to that department or officer,
provided that any communication or document to be made or delivered
to the Agent shall be effective only when received by its agency
division and then only if the same is expressly marked for the
attention of the department or officer specified by the Agent in
Schedule 15 (Certain Addresses) (or such other department or officer
as the Agent shall from time to time specify for this purpose).
40.4 The Agent
All notices from or to either the Parent, New NTL or an Obligor shall
be sent through the Agent.
40.5 English Language
Each communication and document made or delivered by one party to
another pursuant to the Finance Documents shall be in the English
language or accompanied by a translation thereof into English
certified (by an officer of the person making or delivering the same)
as being a true and accurate translation thereof.
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40.6 Notification of Changes
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 40.2 (Addresses) or changing its own
address or fax number the Agent shall notify the other parties hereto
of such change.
40.7 Deemed Receipt by the Obligors
Any communication or document made or delivered to the Parent in
accordance with Clause 40.3 (Delivery) shall be deemed to have been
made or delivered to each of the Obligors.
40.8 Electronic communication
40.8.1 Any communication to be made between the Agent and a Bank
under or in connection with the Finance Documents may be
made by electronic mail or other electronic means, if the
Agent and the relevant Bank:
(a) agree that, unless and until notified to the
contrary, this is to be an accepted form of
communication;
(b) notify each other in writing of their electronic
mail address and/or any other information required
to enable the sending and receipt of information
by that means; and
(c) agree that they will notify each other of any
change to their address or any other such
information supplied by them.
40.8.2 Any electronic communication made between the Agent and a
Bank will be effective only when actually received in
readable form and in the case of any electronic
communication made by a Bank to the Agent only if it is
addressed in such a manner as the Agent shall specify for
this purpose.
41. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
42. AMENDMENTS
42.1 Amendments
Subject to Clauses 42.2 (Amendments Requiring the Consent of a
Revolving Instructing Group), 42.3 (Amendments Requiring the Consent
of all the Revolving Banks), 42.4 (Amendments Requiring the Consent
of a Term Instructing Group), 42.5 (Amendments Requiring the Consent
of all the Term Banks) and 42.6 (Amendments Requiring the Consent of
all the Banks) if the Agent has the prior consent of an Instructing
Group, the Agent, the Parent, New NTL and the Obligors party to a
Finance Document may from time to time agree in writing to amend such
Finance Document or, as the case may be, the Agent may consent to or
waive, prospectively or retrospectively, any of the requirements of
such Finance Document and any amendments or waivers so agreed or
consents so given shall be binding on all the Finance Parties,
provided that no such waiver or amendment shall subject any Finance
Party hereto to any new or additional obligations without the consent
of such Finance Party.
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42.2 Amendments Requiring the Consent of a Revolving Instructing Group
Subject to Clauses 42.3 (Amendments Requiring the Consent of all the
Revolving Banks) and 42.6 (Amendments Requiring the Consent of all
the Banks), if the Agent has the prior consent of a Revolving
Instructing Group, the Agent, the Parent, New NTL and the Obligors
party to a Finance Document may from time to time agree in writing to
amend such Finance Document or, as the case may be, the Agent may
consent to or waive, prospectively or retrospectively, any of the
requirements of such Finance Documents and any amendments or waivers
so agreed or consents so given shall be binding on all the Finance
Parties, provided that:
42.2.1 the amendment, consent or waiver relates solely to the
Revolving Facility and has no direct prejudicial effect on
the Term Facility, including (without limitation) where such
amendment, consent or waiver relates to the obligation of
the Borrowers to make a prepayment under the Revolving
Facility under sub-clause 12.3.3 of Clause 12.3 (Prepayment
of the Term Loan) or Clause 13.6 (Application of Proceeds);
and
42.2.2 no such waiver or amendment shall subject any Finance Party
hereto to any new or additional obligations without the
consent of such Finance Party.
42.3 Amendments Requiring the Consent of all the Revolving Banks
Subject to Clause 42.6 (Amendments Requiring the Consent of all the
Banks), an amendment or waiver which relates to:
42.3.1 a change in the principal amount or currency (other than
pursuant to Clause 35 (Change of Currency)) of any Revolving
Advance, or deferral of any Repayment Date or the Revolving
Termination Date;
42.3.2 a decrease in the Revolving Margin or the amount of any
payment of interest, fees or any other amount payable
hereunder to any Revolving Bank or deferral of the date of
payment thereof;
42.3.3 the conditions set out in sub-clause 3.1.7 of Clause 3.1
(Drawdown Conditions for Revolving Advances) if an Event of
Default or Potential Event of Default which relates to a
Repeated Representation or Clause 22.17 (Negative Pledge) is
continuing;
42.3.4 an increase in the Revolving Commitment of a Bank (other
than pursuant to Clause 34 (Assignments and Transfers));
42.3.5 the definition of Revolving Instructing Group; or
42.3.6 any provision which is expressed to be subject to the
consent of all the Revolving Banks,
shall not be made without the prior written consent of all the
Revolving Banks.
42.4 Amendments Requiring the Consent of a Term Instructing Group
Subject to Clauses 42.5 (Amendments Requiring the Consent of all the
Term Banks) and 42.6 (Amendments Requiring the Consent of all the
Banks), if the Agent has the prior consent of a Term Instructing
Group, the Agent, the Parent, New NTL and the Obligors
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<page>
party to a Finance Document may from time to time agree in writing to
amend such Finance Document or, as the case may be, the Agent may
consent to or waive, prospectively or retrospectively, any of the
requirements, of such Finance Documents and any amendments or waivers
so agreed or consents so given shall be binding on all the Finance
Parties, provided that:
42.4.1 the amendment, consent or waiver relates solely to the Term
Facility and has no direct prejudicial effect on the
Revolving Facility, including (without limitation) where
such amendment, consent or waiver relates to:
(a) a provision of this Agreement or any related
definition which imposes a restriction on any
member of the Covenant Group or the UK Group by
reference to the Term Final Maturity Date, (except
that where such provision or definition uses the
Term Final Maturity Date as a limit, the limit
shall not be amended or waived so as to fall prior
to the Revolving Termination Date, and where such
provision or definition uses six months after the
Term Final Maturity Date as a limit, the limit
shall not be amended or waived so as to fall prior
to the date falling one year after the Revolving
Termination Date, in each case without the consent
of an Instructing Group);
(b) the obligation of the Post-Novation Borrower to
make a prepayment under the Term Facility under
Clause 13.6 (Application of Proceeds); or
(c) the making of any of the representations and
warranties pursuant to Clause 19
(Representations); and
42.4.2 no such waiver or amendment shall subject any Finance Party
hereto to any new or additional obligations without the
consent of such Finance Party.
42.5 Amendments Requiring the Consent of all the Term Banks
Subject to Clause 42.6 (Amendments Requiring the Consent of all the
Banks), an amendment or waiver which relates to:
42.5.1 a change in the principal amount or currency (other than
pursuant to Clause 35 (Change of Currency)) of any Term
Advance or deferral of any Term Repayment Date, the last day
of any Interest Period or the Term Final Maturity Date;
42.5.2 a decrease in the Term Margin or the amount of any payment
of interest, fees or any other amount payable hereunder to
any Term Bank or deferral of the date for payment thereof;
42.5.3 an increase in the Term Commitment of a Bank (other than
pursuant to Clause 34 (Assignments and Transfers));
42.5.4 the definition of Term Instructing Group; or
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42.5.5 any terms of the undertaking to be given by the Security
Trustee to the Second Security Trustee pursuant to clause 9
(Second Security Documents) of the First Restatement
Amendment Agreement;
42.5.6 any provision which is expressed to be subject to the
consent of all the Term Banks,
shall not be made without the prior consent of all the Term Banks.
42.6 Amendments Requiring the Consent of all the Banks
An amendment or waiver which relates to:
42.6.1 Clause 32 (Sharing) or this Clause 42;
42.6.2 an increase in the Revolving Margin or the Term Margin or
the amount of any payment of interest, fees or any other
amount payable hereunder to any Finance Party or
acceleration of the date of payment thereof;
42.6.3 the acceleration of any Term Repayment Date, the Revolving
Termination Date or the Term Final Maturity Date (provided
that the Term Final Maturity Date may be accelerated with
the consent of a Term Instructing Group to a date no earlier
than one year after the Revolving Termination Date);
42.6.4 Clause 24 (Guarantee and Indemnity);
42.6.5 a release of any of the Security;
42.6.6 a Security Document, where such an amendment or waiver could
affect the nature or scope of the property subject to the
Security;
42.6.7 a change to the Borrowers or Guarantors other than in
accordance with Clause 36 (Additional Borrowers) or Clause
37 (Accession of Guarantors);
42.6.8 Clause 2.5 (Banks' Obligations Several), Clause 2.6 (Banks'
Rights Several), Clause 36 (Additional Borrowers) or Clause
37 (Accession of Guarantors);
42.6.9 the definition of Instructing Group, Permitted Encumbrance
or Potential Event of Default;
42.6.10 any provision which contemplates the need for the consent or
approval of all the Banks;
42.6.11 Clause 2.7 (Acknowledgement of Second Security);
42.6.12 a provision of the Security Trust Agreement or the Second
Security Trust Agreement;
42.6.13 a release of any of the Second Security; or
42.6.14 a Second Security Document, where such an amendment or
waiver could affect the nature or scope of the property
subject to the Second Security,
shall not be made without the prior consent of all the Banks.
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<page>
42.7 Exceptions
Notwithstanding any other provisions hereof, the Agent shall not be
obliged to agree to any such amendment or waiver if the same would:
42.7.1 amend or waive this Clause 42, Clause 26 (Costs and
Expenses) or Clause 33 (The Agent, the Arrangers and the
Banks); or
42.7.2 otherwise amend or waive any of the Agent's rights hereunder
or subject the Agent or the Arrangers to any additional
obligations hereunder.
43. GOVERNING LAW
This Agreement is governed by English law.
44. JURISDICTION
44.1 English Courts
The courts of England have exclusive jurisdiction to settle any
dispute (a "Dispute") arising out of or in connection with this
Agreement (including a dispute regarding the existence, validity or
termination of this Agreement or the consequences of its nullity).
44.2 Convenient Forum
The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes between them and,
accordingly, that they will not argue to the contrary.
44.3 Non-Exclusive Jurisdiction
This Clause 44 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 44.1 (English Courts), it does not
prevent any Finance Party from taking proceedings relating to a
Dispute ("Proceedings") in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent
Proceedings in any number of jurisdictions.
44.4 Service of Process
New NTL and each Obligor which is not incorporated in England and
Wales agrees that the documents which start any Proceedings and any
other documents required to be served in relation to those
Proceedings may be served on it by service of such documents on NTL
Group Limited at NTL House, Bartley Wood Business Park, Hook,
Hampshire RG27 9UP (marked for the attention of Robert Mackenzie) or,
if different, its registered office.
If NTL Group Limited ceases to have a place of business in Great
Britain or, as the case may be, its appointment ceases to be
effective, New NTL and each Obligor which is not incorporated in
England and Wales shall immediately appoint another person in England
to accept service of process on its behalf in England. If New NTL or
an Obligor which is not incorporated in England and Wales fails to do
so (and such failure continues for a period of not less than fourteen
days), the Agent shall be entitled to appoint such a person by notice
to New NTL or such Obligor (as the case may be). Nothing contained
herein shall restrict the right to serve process in any other manner
allowed by law. This Clause 44.4 applies to Proceedings in England
and to Proceedings elsewhere.
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<page>
<table>
<caption>
SCHEDULE 1
The Banks
Part A
(Revolving Banks)
Revolving Bank Revolving
Commitment
(pound)
<s> <c>
JPMorgan Chase Bank 211,232,242.43
BNP Paribas 135,876,363.65
Morgan Stanley Dean Witter Bank Limited 135,876,363.65
Morgan Stanley Senior Funding, Inc. -
The Royal Bank of Scotland plc 135,876,363.65
Citibank, N.A. 132,345,040.82
CIBC World Markets plc 125,876,363.65
Bank of America, N.A. 100,876,363.65
Bankgesellschaft Berlin AG 90,355,878.78
Bayerische Landesbank Girozentrale acting through its
London Branch 90,355,878.78
Credit Lyonnais 90,355,878.78
Fortis Bank S.A./N.V. 90,355,878.78
HSBC Bank plc 90,355,878.78
The Governor and Company of the Bank of Scotland 90,355,878.78
WestLB AG, London Branch 90,355,878.78
The Bank of Nova Scotia 80,355,878.78
Credit Suisse First Boston 60,164,000.00
Bayerische Hypo- und Vereinsbank AG, London Branch 54,616,969.70
Dresdner Bank AG London Branch 54,616,969.70
Lloyds TSB Bank plc 45,672,727.28
Abbey National Treasury Services plc 44,616,969.70
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. (trading as Rabobank 44,616,969.70
International, London Branch)
Mizuho Corporate Bank, Ltd 41,616,969.70
Banca Commerciale Italiana 40,055,878.78
Fleet National Bank 38,172,727.28
Goldman Sachs International Bank, Londond Branch 35,416,000.00
Export Development Canada 33,900,000.00
Credit Agricole Indosuez 25,000,000.00
Credit Industriel et Commercial 25,000,000.00
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<page>
Lehman Brothers Bankhaus AG, London 20,000,000.00
Barclays Bank PLC 20,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 20,000,000.00
ABC International Bank Plc 15,000,000.00
Natexis Banques Populaires (London Branch) 15,000,000.00
N M Rothschild & Sons Ltd 10,000,000.00
Singer & Friedlander Limited 10,000,000.00
The Governor and Company of the Bank of Ireland 10,000,000.00
The Sumitomo Trust & Banking Co. Ltd 10,000,000.00
Lehman Commercial Paper Inc. 1,800,000.00
Cisco Systems Finance International 1,000.00
Total 2,584,800,000
</table>
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<page>
<table>
<caption>
Part B
(Term Banks)
Term Bank Term
Commitment
(pound)
<s> <c>
GE Capital Structured Finance Group Limited 200,000,000
Total 200,000,000
</table>
<page>
SCHEDULE 2
Form of Transfer Certificate
To: J.P. Morgan Europe Limited
TRANSFER CERTIFICATE
relating to the agreement dated 30 May 2000 (as from time to time amended,
varied, novated, supplemented and restated, the "Credit Agreement") whereby
certain credit facilities were made available to a group of borrowers
including NTL Investment Holdings Limited by a group of banks on whose behalf
J.P. Morgan Europe Limited (formerly known as Chase Manhattan International
Limited) acted as agent in connection therewith.
1. Terms defined in the Credit Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee
and Portion Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under
the heading "Bank's Participation in the Revolving Facility",
"Revolving Advances", "Bank's Participation in the Term Facility" and
"Term Advances" accurately summarises its participation in the Credit
Agreement and the Term or Interest Period of any existing Advances
and (ii) requests the Transferee to accept and procure the transfer
by novation to the Transferee of the Portion Transferred (specified
in the schedule hereto) of its Revolving Commitment and/or Term
Commitment and/or its participation in such Advance(s) by
counter-signing and delivering this Transfer Certificate to the Agent
at its address for the service of notices specified in the Credit
Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 34.5 (Transfers by Banks) of the Credit Agreement
so as to take effect in accordance with the terms thereof on the
Transfer Date or on such later date as may be determined in
accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Credit
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will
not hereafter rely on the Bank to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such information and further agrees that it has
not relied and will not rely on the Bank to assess or keep under
review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Parent, the Covenant
Group or the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Credit Agreement that it will perform in accordance
with their terms all those obligations which by the terms of the
Finance Documents will be assumed by it after delivery of this
Transfer Certificate to the Agent and satisfaction of the conditions
(if any) subject to which this Transfer Certificate is expressed to
take effect.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance
<page>
Documents or any document relating thereto and assumes no
responsibility for the financial condition of the Obligors or for the
performance and observance by the Obligors of any of its obligations
under the Finance Documents or any document relating thereto and any
and all such conditions and warranties, whether express or implied by
law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Finance
Documents (or any document relating thereto) shall oblige the Bank to
(a) accept a re-transfer from the Transferee of the whole or any part
of its rights, benefits and/or obligations under the Finance
Documents transferred pursuant hereto or (b) support any losses
directly or indirectly sustained or incurred by the Transferee for
any reason whatsoever including the non-performance by an Obligor or
any other party to the Finance Documents (or any document relating
thereto) of its obligations under any such document. The Transferee
hereby acknowledges the absence of any such obligation as is referred
to in (a) or (b) above.
8. This Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in
accordance with English law.
<table>
<caption>
THE SCHEDULE
<s> <c> <c>
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the
Revolving Facility:
Bank's Revolving Commitment Portion Transferred
5. Revolving Advance(s): Term and Repayment Portion Transferred
Date
Amount of Bank's Participation
6. Bank's Participation in the Term
Facility:
7. Bank's Term Commitment Portion Transferred
8. Term Advance(s): Interest Period Portion Transferred
Amount of Bank's Participation
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
________________________________________________________________________________________________
</table>
<page>
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Fax:
Telephone:
_____________________________________________________________________________
Note: Each Transferee should, at the same time as executing this Transfer
Certificate, execute an accession memorandum in relation to the Security Trust
Agreement.
<page>
SCHEDULE 3
Initial Revolving Bank Conditions Precedent
For the avoidance of doubt, each capitalised term used in this Schedule 3
shall, for the purposes of interpretation of this Schedule 3, bear the meaning
given to such term in the form of this Agreement in force as at the date upon
which the conditions precedent to the initial availability of the Revolving
Facility were satisfied save that "Execution Date", "NTL UK Revolving Bank
Subordination Agreement", "Pre-Novation Borrower" and "Revolving Banks" shall
bear the meanings given to such terms in Clause 1.1 (Definitions).
1. Corporate Documents
(a) In relation to the Parent, the Pre-Novation Borrower, NTL UK, NTL CC
and NTL Inc. (each an "Original Obligor"):
(i) a copy, certified as at the Execution Date, a true and
up-to-date copy by an Authorised Signatory of such Original
Obligor, of the constitutional documents of such Original
Obligor;
(ii) a copy, certified as at the Execution Date, a true and
up-to-date copy by an Authorised Signatory of such Original
Obligor, of a board resolution of such Original Obligor
approving the execution, delivery and performance of the
Finance Documents to which that Original Obligor is a party
and the terms and conditions thereof and authorising a named
person or persons to sign such Finance Documents and any
documents to be delivered by such Original Obligor pursuant
thereto;
(iii) a certificate of an Authorised Signatory of such Original
Obligor setting out the names and signatures of the persons
authorised to sign, on behalf of such Original Obligor, the
Finance Documents to which that Original Obligor is a party
and any documents to be delivered by such Original Obligor
pursuant thereto.
(b) In relation to the Pre-Novation Borrower, a certificate of an
Authorised Signatory of the Pre-Novation Borrower confirming that
utilisation of the full amount of the Revolving Facility would not
breach any restriction of its borrowing powers.
(c) The Group Structure Chart referred to in paragraph (a) of the
definition of that term.
2. Accounts and Reports
(a) The Business Plan.
(b) Copies of the Original Financial Statements referred to in paragraphs
(a) to (c) of the definition of that term, certified true copies by
an Authorised Signatory of either the Pre-Novation Borrower (in the
case of its and the Target's financial statements) or the Parent (in
the case of its financial statements).
<page>
3. Acquisition and Related Matters
(a) A copy, certified by an Authorised Signatory of the Parent as true,
complete and up-to-date, of the Transaction Agreement.
(b) A certificate from an Authorised Signatory of the Parent confirming
that all the conditions precedent to the completion of the
Acquisition in accordance with the Transaction Agreement have been
satisfied or waived as permitted thereby save insofar as such
conditions precedent relate to or are dependent upon the utilisation
of the Revolving Facility.
(c) A copy, certified as being a true and complete copy by an Authorised
Signatory of the Parent of the resolution of the shareholders of the
Target passed at the meeting of the holders of the shares of Target
summoned by the High Court of Justice of England and Wales and
directed to consider and vote on whether to approve the Scheme
pursuant to Section 425.
(d) A copy, certified as being a true and complete copy by an Authorised
Signatory of Parent, of the resolutions of the shareholders of the
Target passed at the extraordinary general meeting of the Target
convened to consider and vote on the resolutions necessary to
implement the Scheme.
(e) A certified copy of the order of the High Court of Justice of England
and Wales sanctioning the Scheme under Section 425 as registered with
the Registrar of Companies.
(f) Certified copies of executed stock transfer forms evidencing that NTL
Holdings will, upon registration of the transfers effected by such
stock transfer forms, hold shares in the issued share capital of CWC
Holdings (representing 100 per cent. of the shares in CWC Holdings
subject to the call option in favour of NTL Holdings granted pursuant
to the Transaction Agreement).
(g) A certificate from an Authorised Signatory of the Parent confirming
that, immediately following the completion of the Acquisition neither
any member of the UK Group nor (to the best of such Authorised
Signatory's knowledge and belief) any member of the Target Group
shall have (or will have) any Financial Indebtedness outstanding
(other than Permitted Indebtedness) and that all Encumbrances (other
than Permitted Encumbrances) have been, or will be, discharged.
(h) A Certificate of an Authorised Signatory of the Parent confirming
that all necessary consents, licences, authorisations and approvals
in relation to the Acquisition and the Finance Documents have been
obtained, together with copy letters from the ITC, Oftel and the DTI
and copies of any consents or other approvals required under the
terms of any Licence.
(i) A letter from the Parent's insurance broker addressed to the Agent
confirming the adequacy of the UK Group's insurance cover.
4. Security Documents and Related Documentation
<page>
(a) The Original Borrower Intra-Group Loan Assignment (executed by the
Pre-Novation Borrower in favour of the Security Trustee, assigning
the Pre-Novation Borrower's rights in respect of loans made or to be
made by it to CWC Holdings) and the Original Borrower Security over
Cash Agreement (executed by the Pre-Novation Borrower in favour of
the Security Trustee, assigning and charging the Pre-Novation
Borrower's rights in respect of sums deposited in the Original
Borrower Charged Account), duly executed and delivered by the
Pre-Novation Borrower.
(b) The NTL UK Revolving Bank Subordination Agreement, duly executed by
NTL UK.
(c) The NTL Subordination Agreement (between NTL Inc. as lender, the
Pre-Novation Borrower as borrower and the Security Trustee pursuant
to which, whilst sums remain outstanding under the Finance Documents,
no payments of interest, repayment of principal or any other payments
of any kind can be made in respect of indebtedness owed by the
Pre-Novation Borrower and members of the Target Group to NTL Inc.,
save for certain permitted payments as provided therein, duly
executed by NTL Inc.).
(d) The NTL Intra-Group Loan Assignment (executed by NTL Inc. in favour
of the Security Trustee, assigning NTL Inc.'s rights in respect of
loans made or to be made by it to the Pre-Novation Borrower and
members of the Target Group) and the NTL Security Over Cash Agreement
(executed by NTL Inc. in favour of the Security Trustee, assigning
and charging NTL Inc.'s rights in respect of sums deposited in the
Charged Account), duly executed and delivered by NTL Inc.
(e) The Security Trust Agreement duly executed and delivered by the
parties thereto.
5. Legal Opinions
(a) A legal opinion from Clifford Chance, London, the Agent's English
counsel in substantially the form distributed to the Revolving Banks
prior to the Execution Date.
(b) A legal opinion from Skadden, Arps, Slate, Meagher & Flom LLP,
Delaware counsel, in substantially the form distributed to the
Revolving Banks prior to the Execution Date.
6. Miscellaneous
(a) The fees letters referred to in Clause 22.5 (Agency and Other Fees)
of the form of this Agreement in force as at the date upon which the
conditions precedent to the initial availability of the Revolving
Facility were satisfied.
(b) Evidence that NTL Group Limited has agreed to act as the agent of NTL
Inc. and NTL CC for the service of process in England in respect of:
(i) this Agreement (for NTL CC); and
(ii) the NTL Subordination Agreement, the NTL Intra-Group Loan
Assignment and the NTL Security Over Cash Agreement (for NTL
Inc.).
(c) Evidence confirming that, in addition to the amounts specified in the
balance sheet in the management accounts for the Group for the period
ended 30 April 2000, an amount of no less than (pound)2,800,000,000
(or its equivalent) has been or will on the Acquisition Date be
<page>
invested in the common stock or convertible preferred stock of NTL
Holdings by France Telecom S.A.
(d) Evidence that no less than:
(i) (pound)215,798,000 was available for use by the UK Group as
at 25 May 2000; and
(ii) (pound)591,166,950 was available for use by the Pre-Novation
Borrower as at 25 May 2000,
such evidence comprising of certificates from an Authorised Signatory
of the Parent or, as the case may be, the Pre-Novation Borrower.
(e) Evidence that the Working Capital Facility is in place and all
conditions precedent thereunder (save for those that are conditional
on the effectiveness of this Agreement) have been satisfied or waived
in accordance with their terms.
<page>
SCHEDULE 4
Notice of Drawdown
From: [Borrower]
To: J.P. Morgan Europe Limited
Dated:
Dear Sirs,
1. We refer to the agreement dated 30 May 2000 (as from time to time
amended, varied, novated, supplemented and restated) and originally
made between, among others, NTL Business Limited as Pre-Novation
Borrower (whose obligations have been novated to NTL Investment
Holdings Limited as Post-Novation Borrower), J.P. Morgan Europe
Limited (formerly known as Chase Manhattan International Limited) as
agent and the financial institutions named therein as Banks (the
"Credit Agreement"). Terms defined in the Credit Agreement shall have
the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Credit Agreement and
on [date of proposed Revolving Advance], we wish to borrow a
Revolving Advance of (pound)[ ] upon the terms and subject to the
conditions contained therein.
4. We would like this Revolving Advance to have a Term of [ ] months'
duration.
5. We confirm that, at the date hereof [(i) no Event of Default or
Potential Event of Default is continuing and (ii) the Repeated
Representations are true in all material respects] [(i) no Event of
Default is continuing and (ii) those of the Repeated Representations
which are not capable of remedy or change if incorrect or misleading
in any material respect, are true in all material respects]*.
6. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
.............................
Authorised Signatory
for and on behalf of
[Insert name of Borrower]
_______________________________________________________________________________
* Use the first option for Revolving Advances (if not Rollover
Advances) and use the second option for Rollover Advances.
<page>
SCHEDULE 5
Existing Encumbrances
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
CHARGOR DATE BENEFICIARY SUMMARY
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
30.07.92 NatWest Bank plc Charge over credit balance
NTL (Southampton and (pound 135,669.35)
Eastleigh) Ltd (formerly known
as CWC (Southampton and
Eastleigh) Ltd)
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
06.05.97 NatWest Specialist Finance Collateral accounts security
NTL (South East) Ltd (formerly assignment. Part satisfied
known as CWC (South East) Ltd)
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
(i) 31.01.97 (ii) National Westminster Plc (i) Charges over credit balances
NTL Kirklees
(ii) 06.08.97 (ii) National Westminster Plc (ii) Charges over credit balances
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
(i) 31.01.97 (i) National Westminster Bank Plc (i) Charges over credit balances
NTL South Wales Limited
(ii) 04.06.97 (ii) National Westminster Bank Plc (ii) Charges over credit balances
(iii) 06.08.97 (iii) National Westminster Bank Plc (iii)Charges over credit balances
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
06.08.97 National Westminster Bank Plc Charges over credit balances
Cable Tel Surrey & Hampshire
Limited
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
06.08.97 National Westminster Bank Plc Charges over credit balances
Cable Tel Herts & Beds Limited
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
14.12.93 Uberior Nominees (Gulliver D.P.U.T.) Deed of deposit
NTL South Central Limited Limited
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
157
Chart continued
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
CHARGOR DATE BENEFICIARY SUMMARY
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
(i) 10.06.97 (i) Chase Manhattan Bank N.A. (i) Mortgage or charge
National Trans-communications executed and comprising
Limited property situated
outside the Kingdom.
(ii) 17.10.97 (ii) Chase Manhattan International Limited (ii) Debenture.
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
(i) 06.08.97 (i) National Westminster Bank PLC (i) Charge over deposit.
CableTel (Northern Ireland)
Limited (ii) 17/10/97 (ii) Chase Manhattan International Limited (ii) Debenture.
- ---------------------------------------------------- ------------------------------------------- ----------------------------------
158
SCHEDULE 6
Form of Compliance Certificate
To: J.P. Morgan Europe Limited
Date:
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 (as from time to time
amended, varied, novated, supplemented and restated), and made
between, among others, NTL Business Limited as Pre-Novation Borrower
(whose obligations have been novated to NTL Investment Holdings
Limited as the Post-Novation Borrower), J.P. Morgan Europe Limited
(formerly known as Chase Manhattan International Limited) as agent
and the financial institutions defined therein as Banks (the "Credit
Agreement").
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. We confirm that:
(a) *[The ratio of the UK Group Net Consolidated Total Debt on
[Quarter Date] to the Consolidated [Annualised] EBITDA of
the UK Group for the [Relevant Period/financial year] ended
on [Quarter Date] was [ ]:1.
(b) *The ratio of the Consolidated EBITDA of the UK Group for
the [Relevant Period/financial year] ended on [Quarter Date]
to the aggregate of UK Group Total Interest Payable, UK
Group Capital Expenditure and Permitted Payments for that
[Relevant Period/financial year] was [ ]:1.
(c) ***The aggregate amount of Liquidity of members of the UK
Group and members of the Covenant Group on [Quarter Date]
was [ ].
(d) **[The ratio of the Group Net Consolidated Total Debt on
[Quarter Date] to the Consolidated [Annualised] EBITDA of
the Group for the [Relevant Period/financial year] ended on
[Quarter Date] was [ ]:1.]
The calculations of the above ratios are set out in the Schedule to
this Compliance Certificate.
4. On the basis of above, we confirm that the Revolving Margin in
relation to any Revolving Advances now existing or made after your
receipt of this Compliance Certificate will, with effect from the
date of receipt by the Agent of this Compliance Certificate, be [ ]
per cent. per annum.
5. We also confirm that:
- --------------------------
* Delete in Compliance Certificate delivered by New NTL.
*** Delete in Compliance Certificate delivered by New NTL and in
Compliance Certificate determined in respect of annual statements.
** Delete in Compliance Certificate delivered by the Parent.
-159-
<page>
(a) The aggregate EBITDA of the Guarantors for the 12 month
period ending on [Quarter Date] equalled or exceeded 95 per
cent. of the consolidated EBITDA of the UK Group for such 12
month period.
(b) The amount of Excess Cash Flow as at [ ] was [ ].
Signed
................................. ...............................
Authorised Signatory Authorised Signatory
of of
NTL Communications Limited NTL Communications Limited
THE SCHEDULE
Compliance Certificate Calculations
(A) Ratio of UK Group Net Consolidated Total Debt to Consolidated
[Annualised] EBITDA of the UK Group:
1. UK Group Net Consolidated Total Debt:
Principal amount outstanding under the Facility and
principal amount outstanding under the Working
Capital Facility (including capitalised interest):___________________
Other relevant Indebtedness for Borrowed Money: ___________________
Minus
Cash held by members of the UK Group (subject to
a maximum amount of (pound)100,000,000 or its
equivalent in other currencies) ___________________
UK Group Net Consolidated Total Debt ___________________
2. Consolidated [Annualised] EBITDA of the UK Group:
(All line items below refer to the Relevant Period,
save in the case of the Compliance Certificate
which accompanies any financial statements
delivered pursuant to Clause 20.1 (Annual
Statements), where the line items refer to the then
most recently ended financial year)
UK Group consolidated net income ___________________
Plus
Any tax provisions ___________________
160
Plus
Any interest, commissions, discounts or other fees ___________________
in respect of Indebtedness for Borrowed Money, and
any amounts related to interest hedging
arrangements entered into in respect of the
Revolving Facility or the Term Facility
Plus
Any Allowable Exceptional Items and other items
under paragraph (d) of the definition of EBIT
Plus
Separation/Integration costs and payments made
under Schedule 8 of the Transaction Agreement ___________________
Plus
Any amortisation and depreciation ___________________
Minus
Capitalised costs and expenses ___________________
[Consolidated EBITDA of the UK Group for the
Relevant Period
Multiplied by 2] ___________________
Consolidated [Annualised] EBITDA of the UK Group ___________________
3. Ratio: ___________________
(B) Ratio of Consolidated EBITDA of the UK Group to the
aggregate of UK Group Total Interest Payable, UK
Group Capital Expenditure and Permitted Payments:
1. Consolidated EBITDA of the UK Group for the
Relevant Period:
(All line items below refer to the Relevant Period)
Consolidated EBITDA of the UK Group ___________________
2. UK Group Total Interest Payable, UK Group Capital
Expenditure and Permitted Payments
(All line items below refer to the Relevant Period, save in the case
of the Compliance Certificate which accompanies any financial
statements delivered pursuant to Clause 20.1 (Annual Statements),
where the line items refer to the then most recently ended financial
year)
161
Aggregate amount of interest, commission, fees and
other periodic finance payments accrued on UK Group
Consolidated Total Debt ___________________
Plus
Commission, fees and finance payments accrued by
UK Group under interest hedging arrangements ___________________
Minus
Commission, fees and finance payments accrued in
favour of UK Group under interest hedging
arrangements permitted by the Credit Agreement ___________________
Minus
Any interest accrued in favour of UK Group on
deposits or bank accounts ___________________
Plus
UK Group Capital Expenditure accrued ___________________
Plus
Permitted Payments made ___________________
UK Group Total Interest Payable, UK Group Capital
Expenditure and Permitted Payments for the
[Relevant Period]/[financial year] ___________________
3. Ratio: ___________________
(C) Aggregate amount of Liquidity of members of the UK Group and members
of the Covenant Group
1. Available Cash of members of the Covenant Group ___________________
Plus
Available Cash of members of the UK Group ___________________
Plus
Available Revolving Facility ___________________
Plus
Investments of Obligors or members of the Covenant ___________________
Group falling within paragraph (b) or (c) of the
definition of
162
Permitted Investments and which are
held with an Eligible Deposit Bank
2. Liquidity of members of the UK Group and members
of the Covenant Group ___________________
(D) Ratio of Group Net Consolidated Total Debt to Consolidated [Annualised]
EBITDA of the Group:
1. Group Net Consolidated Total Debt:
Principal amount outstanding under the Facility and
principal amount outstanding under the Working
Capital Facility (including capitalised interest) ___________________
Other relevant Indebtedness for Borrowed Money
of the UK Group ___________________
Plus
Principal amount outstanding under the Exit
Financing, the Triangle Notes, the Diamond Holdings
Notes and other relevant Indebtedness for Borrowed
Money __________________
Minus
Cash held by members of the Group (subject to a
maximum amount of (pound)150,000,000 or its
equivalent in other currencies): ___________________
Group Net Consolidated Total Debt ___________________
2. Consolidated [Annualised] EBITDA of the Group:
(All line items below refer to the Relevant Period, save in the case
of the Compliance Certificate which accompanies any financial
statements delivered pursuant to Clause 20.1 (Annual Statements),
where the line items refer to the then most recently ended financial
year)
Group consolidated net income ___________________
Plus
Any tax provisions ___________________
Plus
Any interest, commissions, discounts or other fees
in respect of Indebtedness for Borrowed Money, and
any amounts related to interest hedging
arrangements entered into in respect of the
Revolving Facility or the Term
163
Facility ___________________
Plus
Any amounts paid pursuant to interest hedging
arrangements entered into in respect of Permitted
Covenant Group Indebtedness ___________________
Plus
Any Allowable Exceptional Items and other items
under paragraph (d) of the definition of EBIT ___________________
Plus
Separation/Integration costs and payments made
under Schedule 8 of the Transaction Agreement ___________________
Plus
Any amortisation and depreciation ___________________
Minus
Capitalised costs and expenses ___________________
[Consolidated EBITDA of the Group for the
Relevant Period ___________________
Multiplied by 2]
Consolidated [Annualised] EBITDA of the Group ___________________
3. Ratio:
164
SCHEDULE 7
Form of Borrower Accession Memorandum
To: J.P. Morgan Europe Limited
From: [Subsidiary]
and
NTL Communications Limited (the "Parent")
Dated:
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 (as from time to time
amended, varied, novated, supplemented and restated) and originally
made between, among others, NTL Business Limited as Pre-Novation
Borrower (whose obligations have been novated to NTL Investment
Holdings Limited as Post-Novation Borrower), J.P. Morgan Europe
Limited (formerly known as Chase Manhattan International Limited) as
agent and the financial institutions defined therein as Banks (the
"Credit Agreement").
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. The Parent requests that [Subsidiary] become an Additional Borrower
pursuant to Clause 36.1 (Request for Additional Borrower) of the
Credit Agreement.
4. [Subsidiary] is duly organised under the laws of [name of relevant
jurisdiction].
5. [Subsidiary] confirms that it has received from the Parent a true and
up-to-date copy of the Credit Agreement.
6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all
the obligations expressed to be undertaken under the Credit Agreement
by a Borrower and agrees that it shall be bound by the Credit
Agreement in all respects as if it had originally been party thereto
as a Borrower.
7. [The Parent confirms that, if [Subsidiary] is accepted as an
Additional Borrower, its guarantee obligations, and the guarantee
obligations of each other Obligor, pursuant to Clause 24 (Guarantee
and Indemnity) of the Credit Agreement will apply to all the
obligations of [Subsidiary] under the Finance Documents in all
respects in accordance with the terms of the Credit Agreement.]
8. The Parent:
(a) repeats the Repeated Representations made by it; and
(b) confirms that no Event of Default or Potential Event of
Default is continuing or would occur as a result of
[Subsidiary] becoming an Additional Borrower.
9. [Subsidiary] makes the representations and warranties referred to in
sub-clause 19.2.1 of Clause 19.2 (Representing Parties).
10. [Subsidiary's] administrative details are as follows:
165
Address:
Fax No.:
11. [Subsidiary] agrees that the documents which start any Proceedings
and any other documents required to be served in relation to those
Proceedings may be served [on it at [address of Subsidiary's place of
business in England] or at any address in Great Britain at which
process may be served on it in accordance with Part XXIII of the
Companies Act 1985]/[on [name of process agent in England at address
of process agent] or, if different, its registered office]. If
[[Subsidiary] ceases to have a place of business in Great
Britain]/[the appointment of the person mentioned above ceases to be
effective], [Subsidiary] shall immediately appoint another person in
England to accept service of process on its behalf in England. If it
fails to do so (and such failure continues for a period of not less
than fourteen days), the Agent shall be entitled to appoint such a
person by notice. Nothing contained herein shall restrict the right
to serve process in any other manner allowed by law. This applies to
Proceedings in England and to Proceedings elsewhere.
12. This Memorandum shall be governed by English law.
NTL Communications Limited [Subsidiary]
By: .......................... By: ......................
166
SCHEDULE 8
Form of Guarantor Accession Memorandum
To: J.P. Morgan Europe Limited
From: [Subsidiary] (the "Additional Guarantor")
and
NTL Communications Limited (the "Parent")
Dated:
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 (as from time to time
amended, varied, novated, supplemented and restated) and originally
made between, among others, NTL Business Limited as the Pre-Novation
Borrower (whose obligations have been novated to NTL Investment
Holdings Limited as Post-Novation Borrower), J.P. Morgan Europe
Limited (formerly known as Chase Manhattan International Limited) as
agent and the financial institutions defined therein as Banks (the
"Credit Agreement").
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. The Parent requests that the Additional Guarantor become a Guarantor
pursuant to Clause 37.1 (Request for Guarantor) of the Credit
Agreement.
4. The Additional Guarantor is duly organised under the laws of [name of
relevant jurisdiction].
5. The Additional Guarantor confirms that it has received from the
Parent a true and up-to-date copy of the Credit Agreement and a list
of the Borrowers as at the date hereof.
6. The Additional Guarantor undertakes, upon its becoming a Guarantor,
to perform all the obligations expressed to be undertaken under the
Credit Agreement by a Guarantor and agrees that it shall be bound by
the Credit Agreement in all respects as if it had been an original
party thereto as a Guarantor.
7. The Parent:
(a) repeats the Repeated Representations made by it; and
(b) confirms that no Event of Default or Potential Event of
Default is continuing or would occur as a result of the
Additional Guarantor becoming a Guarantor.
8. The Additional Guarantor makes the representations and warranties
referred to in sub-clause 19.2.1 of Clause 19.2 (Representing
Parties).
9. The Additional Guarantor's administrative details are as follows:
Address:
Fax No.:
167
10. The Additional Guarantor agrees that the documents which start any
Proceedings and any other documents required to be served in relation
to those Proceedings may be served on it at [address of Subsidiary's
place of business in England] or at any address in Great Britain at
which process may be served on it in accordance with Part XXIII of
the Companies Act 1985] / [on name of process agent in England at
address of process agent or, if different, its registered office]. If
[the Additional Guarantor ceases to have a place of business in Great
Britain]/[ the appointment of the person mentioned above ceases to be
effective], the Additional Guarantor shall immediately appoint
another person in England to accept service of process on its behalf
in England. If it fails to do so (and such failure continues for a
period of not less than fourteen days), the Agent shall be entitled
to appoint such a person by notice. Nothing contained herein shall
restrict the right to serve process in any other manner allowed by
law. This applies to Proceedings in England and to Proceedings
elsewhere.
11. This Memorandum shall be governed by English law.
12. This Memorandum is executed and delivered as a deed by [the
Additional Guarantor].
......................................
[Director of [Subsidiary]]
......................................
Director/Secretary of [Subsidiary]]
or
[The Common Seal of [Subsidiary]
was affixed to this deed in the presence of
..................................
Director of [Subsidiary]
..................................
Director/Secretary of [Subsidiary]]*
NTL Communications Limited
By: .......................................
_______________________________________________________________________________
* Delete as appropriate. If the company is not incorporated in England and
Wales, alternate form of execution may be more appropriate.
168
SCHEDULE 9
Additional Conditions Precedent
Part A
Accession Conditions Precedent
1. Copies, certified as at the date of the relevant Accession Memorandum
as true, complete and up-to-date copies by an Authorised Signatory of
the proposed Additional Obligor, of:
(a) if such a proposed Additional Obligor is incorporated in a
state of the United States of America, the certificate of
incorporation, by laws and a certificate of good standing of
such a proposed Additional Obligor; or
(b) in all other cases, the constitutional documents of such
proposed Additional Obligor.
2. A copy, certified as at the date of the relevant Accession Memorandum
a true, complete and up-to-date copy by an Authorised Signatory of
the proposed Additional Obligor, of a board resolution of such
proposed Additional Obligor approving the execution and delivery of
an Accession Memorandum, the accession of such proposed Additional
Obligor to this Agreement and the performance of its obligations
under the Finance Documents and authorising a named person or persons
to sign such Accession Memorandum, any other Finance Document and any
other documents to be delivered by such proposed Additional Obligor
pursuant thereto.
3. A certificate of an Authorised Signatory of the proposed Additional
Obligor setting out the names and signatures of the person or persons
authorised to sign, on behalf of such proposed Additional Obligor,
the Accession Memorandum, any other Finance Documents and any other
documents to be delivered by such proposed Additional Obligor
pursuant thereto (including, without limitation, a Debenture and the
other Security Documents to be delivered pursuant to Part B (Security
Documentation) of this Schedule 9) and the deed of accession referred
to in paragraph 11 of this Schedule.
4. A certificate of an Authorised Signatory of the proposed Additional
Obligor confirming that the utilisation of the Revolving Facility and
guarantee of the Facilities would not breach any restriction of its
borrowing and/or guaranteeing powers.
5. If the proposed Additional Obligor is (a) to become an Additional
Borrower and (b) organised under the laws of any state of the United
States of America a certificate from New NTL providing New NTL's
consent to such a proposed Additional Obligor borrowing under the
Revolving Facility.
6. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, a copy, certified a true copy by or on
behalf of the proposed Additional Obligor, of each such law, decree,
consent, licence, approval, registration or declaration as is, in the
reasonable opinion of counsel to the Banks, necessary to render the
relevant Accession Memorandum legal, valid, binding and enforceable,
to make such Accession Memorandum admissible in evidence in the
proposed Additional Obligor's jurisdiction of
169
incorporation and to enable the proposed Additional Obligor to perform
its obligations thereunder and under the other Finance Documents.
7. If requested by the Agent, a copy, certified a true copy by an
Authorised Signatory of the proposed Additional Obligor, of its
latest financial statements.
8. An opinion of the Banks' counsel in the jurisdiction in which the
proposed Additional Obligor is incorporated in form and substance
reasonably satisfactory to the Agent.
9. If the proposed Additional Obligor is to become a Guarantor and is
incorporated in England and Wales, a letter from the Parent to the
Agent (attaching supporting advice from the Parent's English
solicitors) confirming that such proposed Additional Obligor is not
prohibited by section 151 of the Companies Act 1985 from entering
into the Finance Documents and performing its obligations thereunder.
10. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent
specified in the relevant Accession Memorandum has agreed to act as
its agent for the service of process in England.
11. A deed of accession to the Security Trust Agreement executed by the
proposed Additional Obligor, substantially in the form set out in
schedule 1 (Form of Obligor Deed of Accession) to the Security Trust
Agreement.
12. Where the proposed Additional Obligor is to become an Additional
Borrower, a Guarantor Accession Memorandum executed by such a
proposed Additional Obligor.
13. The documents and evidence specified in Part B (Security
Documentation) of this Schedule 9.
170
Part B
Security Documentation
1. If the relevant Additional Obligor is incorporated in England and
Wales, Northern Ireland or Scotland a Debenture and, if relevant,
standard securities and Northern Irish supplemental mortgages,
executed by the proposed Additional Obligor.
2. If the relevant Additional Obligor is incorporated in a state of the
United States of America:
(a) a general security agreement executed by such an Additional
Obligor granting the Security Trustee a security interest in
all of its assets;
(b) if applicable, a pledge agreement executed by such an
Additional Obligor pledging to the Security Trustee all of
the shares and other securities held by it; and
(c) UCC Financing Statements filed against such an Additional
Obligor.
3. If the relevant Additional Obligor is incorporated in a jurisdiction
other than those mentioned in paragraphs 1 and 2 above, such duly
executed Security Documents as the Agent may reasonably require to
secure substantially all of the assets of such an Additional Obligor.
4. Where the relevant Additional Obligors are all the members of the NTL
Triangle Sub-Group, such duly executed Security Documents as the
Agent may reasonably require granting the Security Trustee a security
interest over all the issued shares of NTL (Triangle) LLC.
5. Where the relevant Additional Obligor is granting a mortgage,
standard security or an analogous security interest over real or
heritable property:
(a) a Report on Title relating to that property;
(b) delivery of all title deeds and documents relating to that
property as set out in the agreed form schedule;
(c) if that property is situated in England and Wales and is
registered at HM Land Registry, official priority searches
in favour of the Agent of the registers of title of each of
the registered titles comprising such property which confirm
a period of priority of no less than 14 days;
(d) if that property is situated in England and Wales and is
unregistered, official priority searches in favour of the
Agent in respect of each of the Land Charges Registers
against all relevant estate owners since the date of the
root conveyance;
(e) if that property is situated in Northern Ireland, a priority
search issued by the Land Registry in Northern Ireland which
is valid and in force and which confirms a sufficient period
of priority;
171
(f) if that property is situated in Scotland and its title is
registered in the Land Register of Scotland, a Form 13
Report;
(g) if that property is situated in Scotland and its title is
recorded in the General Register of Sasines, appropriate
property and personal searches;
(h) if that property is situated in Scotland, letters of
obligation in a form which reflects current professional
practice in Scotland;
(i) if that property is situated in a state of the United States
of America, a mortgage executed by such an Additional
Obligor over that property (together with title, insurance
and such other documents as the Agent may reasonably
require);
(j) notices of charge in duplicate to each of the landlords and
licensors or other third parties interested in respect of
that property, and cheques for any relevant registration
fees;
(k) if that property is located in England and Wales, such Land
Registry forms in relation to that property, including Forms
AP1 (if necessary), Forms FR1 or the equivalent and other
forms as the Agent may reasonably require, duly completed by
and on behalf of the proposed Additional Obligor, together
with cheques for the payment of all Land Registry fees
(including fees for expedition) or, if the property is
situated in Scotland, such Land Register or Sasine Register
forms in relation to that property and other forms as the
Agent may reasonably require, duly completed by or on behalf
of the proposed Additional Obligor, together with cheques
for the payment of all recording/registration dues payable
in connection with the registration or recording of the
security created over that property by or pursuant to the
terms of any Debenture, or if that property is situated in
Northern Ireland, such Land Registry Forms in relation to
that property or Registry Deeds Memorial and Form 2 as the
Agent may reasonably require, duly completed by or on behalf
of the proposed Additional Obligor, together with cheques
for the payment of all Land Registry or Registry of Deeds
fees payable;
(l) any other document, form or fee reasonably required to
enable security to be registrable and effective in any
relevant jurisdiction and all third party consents necessary
for the creation or perfection of any security; and
(m) an undertaking from a solicitor satisfactory to the Agent to
use all reasonable endeavours to satisfy any requisitions
raised by HM Land Registry or other analogous bodies in
connection with the application to register any security
over such a property.
172
SCHEDULE 10
Form of resignation Notice
To: J.P. Morgan Europe Limited
From: NTL Communications Limited (the "Parent")
Dated:
Dear Sirs,
1. We refer to an agreement dated 30 May 2000 from time to time amended,
varied, novated, supplemented and restated and originally made
between, among others, NTL Business Limited as the Pre-Novation
Borrower (whose obligations have been novated to NTL Investment
Holdings Limited as Post-Novation Borrower), J.P. Morgan Europe
Limited (formerly known as Chase Manhattan International Limited) as
agent and the financial institutions defined therein as Banks (the
"Credit Agreement").
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. [We declare that [name of Borrower] is under no actual or contingent
obligation under any Finance Document in its capacity as a
Borrower.]*
4. Pursuant to Clause [36.3 (Resignation of a Borrower)]/[37.3
(Resignation of a Guarantor)] we hereby request that [name of
Obligor] shall cease to be a [Borrower]/[Guarantor] under the Credit
Agreement.
5. [The aggregate EBITDA of the remaining Guarantors (in each case
calculated on an unconsolidated basis) for the immediately preceding
four complete Financial Quarters ending on [Quarter Date] was such as
to satisfy sub-clause 22.25.1 of Clause 22.25 (Guarantors).]**
Yours faithfully
NTL Communications Limited
_______________________
* Delete if notice is for a Guarantor.
**Delete if notice is for a Borrower.
173
SCHEDULE 11
Mandatory Costs
1. The Mandatory Cost Rate is an addition to the interest rate to
compensate Banks for the cost of compliance with (a) the requirements
of the Bank of England and/or the Financial Services Authority (or,
in either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Term or Interest Period (or as soon as
possible thereafter) the Agent shall calculate, as a percentage rate,
a rate (the "additional costs rate") for each Bank, in accordance
with the paragraphs set out below. The Mandatory Cost Rate applicable
to the relevant Advance will be calculated by the Agent as a weighted
average of the Banks' additional costs rate rounded to five decimal
places (weighted in proportion to the percentage participation of
each Bank in the relevant Advance) and will be expressed as a
percentage rate per annum.
3. The additional costs rate for any Bank lending from a Facility Office
in a Participating Member State will be the percentage notified by
that Bank to the Agent. This percentage will be certified by that
Bank in its notice to the Agent to be its reasonable determination of
the cost (expressed as a percentage of that Bank's participation in
all Advances made from that Facility Office) of complying with the
minimum reserve requirements of the European Central Bank in respect
of loans made from that Facility Office.
4. The additional cost rate for any Bank lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
AB + C(B-D)+E x 0.01
-------------------------------------
100 - (A+C)
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Bank is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Revolving Margin
or, as the case may be, the Term Margin and the Mandatory Cost Rate
and, if the Advance is an Unpaid Sum, the additional rate of interest
specified in Clause 27.2 (Default Interest)) payable for the relevant
Term on the Revolving Loan or, as the case may be, the relevant
Interest Period on the Term Loan.
C is the percentage (if any) of Eligible Liabilities which that Bank is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to
the Agent on interest bearing Special Deposits.
174
E is designed to compensate Banks for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per
(pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the
meanings given to them from time to time under or pursuant
to the Bank of England Act 1998 or (as may be appropriate)
by the Bank of England;
(b) "Fees Rules" means the rules on periodic fees contained in
the FSA Supervision Manual or such other law or regulation
as may be in force from time to time in respect of the
payment of fees for the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees
Rules under the activity group A.1 Deposit acceptors
(ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any
applicable discount rate); and
(d) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. In application of the above formula, A, B, C and D will be included
in the formula as percentages (i.e. 5 per cent. will be included in
the formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference
Bank to the Financial Services Authority pursuant to the Fees Rules
in respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as
being the average of the Fee Tariffs applicable to that Reference
Bank for that financial year) and expressed in pounds per
(pound)1,000,000 of the Tariff Base of that Reference Bank.
8. Each Bank shall supply any information required by the Agent for the
purpose of calculating its additional costs rate. In particular, but
without limitation, each Bank shall supply the following information
in writing on or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of
its Facility Office; and
(b) such other information that the Agent may reasonably require
for such purpose.
Each Bank shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
9. The percentages or rates of charge of each Bank for the purpose of A
and C above and the rates of charge for each Reference Bank for the
purposes of E above shall be determined by the Agent based upon the
information supplied to it pursuant to
175
paragraphs 7 and 8 above and on the assumption that, unless a Bank
notifies the Agent to the contrary, each Bank's obligations in relation
to cash ratio deposits and Special Deposits are the same as those of a
typica l bank from its jurisdiction of incorporation with a Facility
Office in the same jurisdiction as its Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates
any Bank and shall be entitled to assume that the information
provided by any Bank or Reference Bank pursuant to paragraphs 3, 7
and 8 above is true and correct in all respects.
11. The Agent shall distribute the additional amounts received pursuant
to the Mandatory Cost Rate to the relevant Banks on the basis of the
additional cost rate incurred by each Bank, as calculated in
accordance with the above formula and based on the information
provided by each Bank and each Reference Bank pursuant to paragraphs
3, 7 and 8 above.
12. Any determination by the Agent pursuant to this Schedule in relation
to a formula, the Mandatory Cost Rate, an additional costs rate or
any amount payable to a Bank shall, in the absence of manifest error,
be conclusive and binding on all of the parties hereto.
13. The Agent may from time to time, after consultation with the Parent
(on behalf of the Obligors) and the Banks, determine and notify to
all parties any amendments or variations which are required to be
made to this Schedule in order to comply with any change in law,
regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central
Bank (or, in either case, any other authority which replaces all or
any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all the
parties hereto.
176
SCHEDULE 12
Members of the UK Group
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Name Jurisdiction of Company number (if
Incorporation applicable)
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Andover Cablevision Limited England 1932254
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Berkhamsted Properties & Building Contractors Limited England 958564
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Bracknell Cable TV Limited England 2499321
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Cable Television Limited England 683065
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Cable Thames Valley Limited England 2254089
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel (UK) Limited England 2835551
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Cardiff Limited England 2740659
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Central Hertfordshire Limited England 2347168
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Hertfordshire Limited England 2381354
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Herts and Beds Limited England 1785533
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Investments Limited England 3157216
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Limited England 2857052
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Newport England 2478879
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel North Bedfordshire Limited England 2455397
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Northern Ireland Limited Northern Ireland NI029131
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Scotland Limited Scotland SC119938
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Surrey and Hampshire Limited England 2740651
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel Telecom Supplies Limited England 2919285
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel West Glamorgan Limited England 623197
- -------------------------------------------------------------------- ----------------------------- ---------------------------
CableTel West Riding Limited England 2372564
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Chartwell Investors LP Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Columbia Management Limited England 2361163
- -------------------------------------------------------------------- ----------------------------- ---------------------------
ComTel Cable Services Limited England 2265315
- -------------------------------------------------------------------- ----------------------------- ---------------------------
ComTel Coventry Limited England 277802
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Digital Television Network Limited England 3288768
- -------------------------------------------------------------------- ----------------------------- ---------------------------
DTELS Limited England 2834403
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Enablis Limited England 3144815
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Heartland Cablevision (UK) Limited England 2415170
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Heartland Cablevision II (UK) Limited England 2443617
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Herts Cable Limited England 2390426
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Lanbase European Holdings Limited England 2529290
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Lanbase Limited England 2617729
- -------------------------------------------------------------------- ----------------------------- ---------------------------
177
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Lichfield Cable Communications Limited England 3016595
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Maza Limited England 2785299
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Metro Hertfordshire Limited England 3092899
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Metro South Wales Limited England 3092897
- -------------------------------------------------------------------- ----------------------------- ---------------------------
National Transcommunications Limited England 2487597
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NNS UK Holdings 1 Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NNS UK Holdings 2 Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
North CableComms Holdings, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
North CableComms LLC Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
North CableComms Management, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Northampton Cable Television Limited England 2475464
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Aylesbury and Chiltern) Limited England 2416084
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (B) Limited England 2735732
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Broadland) Limited England 2443741
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Chichester) Limited England 3056817
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (City & Westminster) Limited England 2809080
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (County Durham) Limited England 3128449
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CRUK) Limited England 2329254
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC Holdings) England 3922682
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC) Corporation Limited England 2719477
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC) Limited England 3288998
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC) Management Limited England 2924200
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC) No. 2 Limited England 2441766
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC) No. 3 Limited England 2441768
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC) No. 4 Limited England 2351068
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC) Programming Limited England 3403986
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (CWC) UK England 2463427
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Ealing) Limited England 1721894
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Eastbourne and Hastings) Limited England 3074517
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Fenland) Limited England 2459153
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Greenwich and Lewisham) Limited England 2254009
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Hampshire) Limited England 2351070
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Harrogate) Limited England 2404019
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Harrow) Limited England 2459179
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Kent) Limited England 2456153
- -------------------------------------------------------------------- ----------------------------- ---------------------------
178
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Lambeth and Southwark) Limited England 2277986
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Leeds) Limited England 2400103
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Norwich) Limited England 2332233
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Peterborough) Limited England 2332232
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (South East) Limited England 1870928
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (South London) Limited England 0657093
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Southampton and Eastleigh) Limited England 1866504
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Sunderland) Limited England 2402393
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Thamesmead) Limited England 2461140
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (V) Limited England 2719474
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (V) Plan Pension Trustees Limited England 3105006
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Wandsworth) Limited England 1866178
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Wearside) Limited England 2475099
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (West London) Limited England 1735664
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (Yorcan) Limited England 2371785
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL (York) Limited England 2406267
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Acquisition Company Limited England 2270117
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Bolton Cablevision Holding Company England 2422198
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Bromley Company Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Business (Ireland) Limited England 3284482
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Business Limited England 3076222
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Bolton England 1883383
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Bromley England 2422195
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Bury and Rochdale England 2446183
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Cheshire England 2379804
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Derby England 2387713
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms East Lancashire England 2114543
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Greater Manchester England 2407924
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Group Limited England 3024703
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL CableComms Group, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Holdings No. 1 Limited England 3709869
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Holdings No. 2 Limited England 3709840
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Lancashire No. 1 England 2453249
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Lancashire No. 2 England 2453059
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Limited England 2664006
- -------------------------------------------------------------------- ----------------------------- ---------------------------
179
NTL Cablecomms Macclesfield England 2459067
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Manchester Limited England 2511868
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Oldham and Tameside England 2446185
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Solent England 2422654
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Staffordshire England 2379800
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Stockport England 2443484
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Surrey England 2531586
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Sussex England 2266092
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Wessex England 2410378
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms West Surrey Limited England 2512757
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Cablecomms Wirral England 2531604
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Chartwell Holdings 2 Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Chartwell Holdings Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Chartwell Holdings Limited England 3290823
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Communications Limited England 3521915
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Communications Services Limited England 3403985
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Derby Cablevision Holding Company England 2422310
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Equipment No. 1 Limited England 2794518
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Equipment No. 2 Limited England 2071491
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Glasgow Scotland SC075177
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Glasgow Holdings Limited England 4170072
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Group Limited England 2591237
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Holdings (Broadland) Limited England 2427172
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Holdings (East London) Limited England 2032186
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Holdings (Fenland) Limited England 2427199
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Holdings (Leeds) Limited England 02766909
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Holdings (Norwich) Limited England 2332233
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Holdings (Peterborough) Limited England 2332232
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Internet Limited England 2985161
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Investment Holdings Limited England 3173552
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Kirklees England 2495460
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Kirklees Holdings Limited England 4169826
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Limited England 2586701
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Manchester Cablevision Holding Company England 2455631
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Microclock Services Limited England 2861856
- -------------------------------------------------------------------- ----------------------------- ---------------------------
180
NTL Milton Keynes Limited England 2410808
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Networks Limited England 3045209
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL North CableComms Holdings, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL North CableComms Management, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Partcheer Company Limited England 2861817
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Pension Trustees Limited England 3771014
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Programming Subsidiary Company Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Rectangle Limited England 4329656
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Sideoffer Limited England 2927099
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Solent Company Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Solent Telephone and Cable TV Company Limited England 2511653
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL South CableComms Holdings, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL South CableComms Management, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL South Central Limited England 2387692
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL South Wales Limited England 2857050
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Streetunique Projects Limited England 2851203
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Streetunit Projects Limited England 2851201
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Streetusual Services Limited England 2851019
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Streetvision Services Limited England 2851020
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Streetvital Services Limited England 2851021
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Streetwarm Services Limited England 2851011
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Streetwide Services Limited England 2851013
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Strikeagent Trading Limited England 2851014
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Strikeamount Trading Limited England 2851015
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Strikeapart Trading Limited England 2851018
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Surrey Company Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Sussex Company Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Systems Limited England 3217975
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Technical Support Company Limited England 2512756
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Telecom Services Limited England 2937788
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Trustees Limited England 2702219
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL UK CableComms Holdings, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL UK Telephone and Cable TV Holding Company Limited England 2511877
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Wessex Company Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
181
NTL Westminster Limited England 1735641
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Winston Holdings Limited England 3290821
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Winston Holdings, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Wirral Company Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
NTL Wirral Telephone and Cable TV Company England 2511873
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Oxford Cable Limited England 2450228
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Prospectre Limited Scotland SC145280
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Scanners (Europe) Limited England 2833712
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Scanners Television Outside Broadcasts Limited England 3391685
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Secure Backup Systems Limited England 3130333
- -------------------------------------------------------------------- ----------------------------- ---------------------------
South CableComms Holdings, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
South CableComms LLC Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
South CableComms Management, Inc Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Stafford Communications Limited England 2381842
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Swindon Cable Limited England 318216
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Tamworth Cable Communications Limited England 3016602
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Vision Networks Services UK Limited England 3135501
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Wessex Cable Limited England 2433185
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Winston Investors LLC Delaware
- -------------------------------------------------------------------- ----------------------------- ---------------------------
Workplace Technologies Trustees Company Limited England 3231420
- -------------------------------------------------------------------- ----------------------------- ---------------------------
X-Tant Limited England 3580901
- -------------------------------------------------------------------- ----------------------------- ---------------------------
182
SCHEDULE 13
UK Group Principal Properties
Offices
1. Crawley Court
Switch Stations/Headends
1. Guildford
2. Huddersfield
3. Cardiff
4. Renfrew
5. Luton
6. Belfast
7. Gladstone Road, Northampton (freehold)
8. Unit 3 Clock Tower Industrial Park Edinburgh
9. Unit K2 Gildersom Spur Distribution Centre Leeds
10. Unit 6 Amalgamated Drive, Brentford, Middlesex
11. Unit 37 Minworth Estate, Sutton Coldfield, Birmingham
12. 400 Metroplex, Salford, Manchester
13. 1525 Aztec West, Bristol
Transmission Sites
1. Croydon
2. St. Hilary
3. Black Hill
4. Emley Moor
5. Lichfield
6. Moel Y Parc
7. Ridge Hill
8. Winter Hill
9. Stockland Hill
183
10. Black Mountain
Other
1. Morne Hill, Winchester
2. Newman Street, London
3. Unit 6, Langley
4. Rathbone Place, off Oxford Street, London
184
SCHEDULE 14
Form of Report on Title
1. Property name and address:
2. Owner:
(a) Legal
(b) Beneficial
3. Tenure:
4. If leasehold:
(a) term
(b) is charging permitted?
(c) is assignment permitted?
(d) any unduly onerous lease covenants
(e) permitted use
(f) forfeiture only on breach of covenant and non-payment of
rent
5. If registered, title number and quality of title:
6. Restrictions or impediments on sale (other than mentioned above):
7. Other material comments:
185
SCHEDULE 15
Certain Addresses
- --------------------------------- ------------------------------ ------------------------------ ------------------------------
Party Address Fax Attention
- --------------------------------- ------------------------------ ------------------------------ ------------------------------
Parent NTL House +44 1256 752 17 Company Secretary
Bartley Wood Business Park
Hook
Hampshire
RG27 9UP
- --------------------------------- ------------------------------ ------------------------------ ------------------------------
Post-Novation Borrower NTL House +44 1256 752 17 Company Secretary
Bartley Wood Business Park
Hook
Hampshire
RG27 9UP
- --------------------------------- ------------------------------ ------------------------------ ------------------------------
New NTL 110 East 59th Street New York +212 906 800 Bret Richter
NY 10022 Richard Lubasch
USA
- --------------------------------- ------------------------------ ------------------------------ ------------------------------
Security Trustee and Second 125 London Wall London +44 20 7777 236 Steve Gillies
Security Trustee EC2Y 5AJ
- --------------------------------- ------------------------------ ------------------------------ ------------------------------
Agent 125 London Wall London +44 20 7777 236 Steve Gillies
EC2Y 5AJ Loans Agency Dept
- --------------------------------- ------------------------------ ------------------------------ ------------------------------
186
SCHEDULE 16
The Guarantors
ANDOVER CABLEVISION LIMITED
BERKHAMSTED PROPERTIES & BUILDING CONTRACTORS LIMITED
BRACKNELL CABLE TV LIMITED
CABLE TELEVISION LIMITED
CABLE THAMES VALLEY LIMITED
CABLETEL (UK) LIMITED
CABLETEL CARDIFF LIMITED
CABLETEL CENTRAL HERTFORDSHIRE LIMITED
CABLETEL HERTFORDSHIRE LIMITED
CABLETEL HERTS AND BEDS LIMITED
CABLETEL INVESTMENTS LIMITED
CABLETEL LIMITED
CABLETEL NEWPORT
CABLETEL NORTH BEDFORDSHIRE LIMITED
CABLETEL NORTHERN IRELAND LIMITED
CABLETEL SCOTLAND LIMITED
CABLETEL SURREY AND HAMPSHIRE LIMITED
CABLETEL TELECOM SUPPLIES LIMITED
CABLETEL WEST GLAMORGAN LIMITED
CABLETEL WEST RIDING LIMITED
COLUMBIA MANAGEMENT LIMITED
COMTEL CABLE SERVICES LIMITED
COMTEL COVENTRY LIMITED
DIGITAL TELEVISION NETWORK LIMITED
DTELS LIMITED
ENABLIS LIMITED
HEARTLAND CABLEVISION (UK) LIMITED
HEARTLAND CABLEVISION II (UK) LIMITED
HERTS CABLE LIMITED
LANBASE EUROPEAN HOLDINGS LIMITED
LANBASE LIMITED
LICHFIELD CABLE COMMUNICATIONS LIMITED
MAZA LIMITED
METRO HERTFORDSHIRE LIMITED
METRO SOUTH WALES LIMITED
187
NATIONAL TRANSCOMMUNICATIONS LIMITED
NORTHAMPTON CABLE TELEVISION LIMITED
NTL (AYLESBURY AND CHILTERN) LIMITED
NTL (B) LIMITED
NTL (BROADLAND) LIMITED
NTL (CHICHESTER) LIMITED
NTL (CITY & WESTMINSTER) LIMITED
NTL (COUNTY DURHAM) LIMITED
NTL (CRUK) LIMITED
NTL (CWC HOLDINGS)
NTL (CWC) CORPORATION LIMITED
NTL (CWC) LIMITED
NTL (CWC) MANAGEMENT LIMITED
NTL (CWC) NO. 2 LIMITED
NTL (CWC) NO. 3 LIMITED
NTL (CWC) NO. 4 LIMITED
NTL (CWC) PROGRAMMING LIMITED
NTL (CWC) UK
NTL (EALING) LIMITED
NTL (EASTBOURNE AND HASTINGS) LIMITED
NTL (FENLAND) LIMITED
NTL (GREENWICH AND LEWISHAM) LIMITED
NTL (HAMPSHIRE) LIMITED
NTL (HARROGATE) LIMITED
NTL (HARROW) LIMITED
NTL (KENT) LIMITED
NTL (LAMBETH AND SOUTHWARK) LIMITED
NTL (LEEDS) LIMITED
NTL (NORWICH) LIMITED
NTL (PETERBOROUGH) LIMITED
NTL (SOUTH EAST) LIMITED
NTL (SOUTH LONDON) LIMITED
NTL (SOUTHAMPTON AND EASTLEIGH) LIMITED
NTL (SUNDERLAND) LIMITED
NTL (THAMESMEAD) LIMITED
NTL (V) LIMITED
NTL (WANDSWORTH) LIMITED
NTL (WEARSIDE) LIMITED
188
NTL (WEST LONDON) LIMITED
NTL (YORCAN) LIMITED
NTL (YORK) LIMITED
NTL ACQUISITION COMPANY LIMITED
NTL BOLTON CABLEVISION HOLDING COMPANY
NTL BUSINESS (IRELAND) LIMITED
NTL BUSINESS LIMITED
NTL CABLECOMMS BOLTON
NTL CABLECOMMS BROMLEY
NTL CABLECOMMS BURY AND ROCHDALE
NTL CABLECOMMS CHESHIRE
NTL CABLECOMMS DERBY
NTL CABLECOMMS EAST LANCASHIRE
NTL CABLECOMMS GREATER MANCHESTER
NTL CABLECOMMS GROUP LIMITED
NTL CABLECOMMS HOLDINGS NO. 1 LIMITED
NTL CABLECOMMS HOLDINGS NO. 2 LIMITED
NTL CABLECOMMS LANCASHIRE NO. 1
NTL CABLECOMMS LANCASHIRE NO. 2
NTL CABLECOMMS LIMITED
NTL CABLECOMMS MACCLESFIELD
NTL CABLECOMMS MANCHESTER LIMITED
NTL CABLECOMMS OLDHAM AND TAMESIDE
NTL CABLECOMMS SOLENT
NTL CABLECOMMS STAFFORDSHIRE
NTL CABLECOMMS STOCKPORT
NTL CABLECOMMS SURREY
NTL CABLECOMMS SUSSEX
NTL CABLECOMMS WESSEX
NTL CABLECOMMS WEST SURREY LIMITED
NTL CABLECOMMS WIRRAL
NTL CHARTWELL HOLDINGS LIMITED
NTL COMMUNICATIONS LIMITED
NTL COMMUNICATIONS SERVICES LIMITED
NTL DERBY CABLEVISION HOLDING COMPANY
NTL EQUIPMENT NO. 1 LIMITED
NTL EQUIPMENT NO. 2 LIMITED
NTL GLASGOW
189
NTL GLASGOW HOLDINGS LIMITED
NTL GROUP LIMITED
NTL HOLDINGS (BROADLAND) LIMITED
NTL HOLDINGS (EAST LONDON) LIMITED
NTL HOLDINGS (FENLAND) LIMITED
NTL HOLDINGS (LEEDS) LIMITED
NTL HOLDINGS (NORWICH) LIMITED
NTL HOLDINGS (PETERBOROUGH) LIMITED
NTL INTERNET LIMITED
NTL INVESTMENT HOLDINGS LIMITED
NTL KIRKLEES
NTL KIRKLEES HOLDINGS LIMITED
NTL LIMITED
NTL MANCHESTER CABLEVISION HOLDING COMPANY
NTL MICROCLOCK SERVICES LIMITED
NTL MILTON KEYNES LIMITED
NTL NETWORKS LIMITED
NTL PARTCHEER COMPANY LIMITED
NTL RECTANGLE LIMITED
NTL SIDEOFFER LIMITED
NTL SOLENT TELEPHONE AND CABLE TV COMPANY LIMITED
NTL SOUTH CENTRAL LIMITED
NTL SOUTH WALES LIMITED
NTL STREETUNIQUE PROJECTS LIMITED
NTL STREETUNIT PROJECTS LIMITED
NTL STREETUSUAL SERVICES LIMITED
NTL STREETVISION SERVICES LIMITED
NTL STREETVITAL SERVICES LIMITED
NTL STREETWARM SERVICES LIMITED
NTL STREETWIDE SERVICES LIMITED
NTL STRIKEAGENT TRADING LIMITED
NTL STRIKEAMOUNT TRADING LIMITED
NTL STRIKEAPART TRADING LIMITED
NTL SYSTEMS LIMITED
NTL TECHNICAL SUPPORT COMPANY LIMITED
NTL TELECOM SERVICES LIMITED
NTL UK TELEPHONE AND CABLE TV HOLDING COMPANY LIMITED
NTL WESTMINSTER LIMITED
190
NTL WINSTON HOLDINGS LIMITED
NTL WIRRAL TELEPHONE AND CABLE TV COMPANY
OXFORD CABLE LIMITED
PROSPECTRE LIMITED
SCANNERS (EUROPE) LIMITED
SCANNERS TELEVISION OUTSIDE BROADCASTS LIMITED
SECURE BACKUP SYSTEMS LIMITED
STAFFORD COMMUNICATIONS LIMITED
SWINDON CABLE LIMITED
TAMWORTH CABLE COMMUNICATIONS LIMITED
VISION NETWORKS SERVICES UK LIMITED
WESSEX CABLE LIMITED
X-TANT LIMITED
CHARTWELL INVESTORS LP
NNS UK HOLDINGS 1, INC.
NNS UK HOLDINGS 2, INC.
NORTH CABLECOMMS LLC
NORTH CABLECOMMS HOLDINGS, INC.
NORTH CABLECOMMS MANAGEMENT, INC.
NTL BROMLEY COMPANY
NTL CABLECOMMS GROUP, INC.
NTL CHARTWELL HOLDINGS, INC.
NTL CHARTWELL HOLDINGS 2, INC.
NTL NORTH CABLECOMMS HOLDINGS, INC.
NTL NORTH CABLECOMMS MANAGEMENT, INC.
NTL PROGRAMMING SUBSIDIARY COMPANY
NTL SOLENT COMPANY
NTL SOUTH CABLECOMMS HOLDINGS, INC.
NTL SOUTH CABLECOMMS MANAGEMENT, INC.
NTL SURREY COMPANY
NTL SUSSEX COMPANY
NTL UK CABLECOMMS HOLDINGS, INC.
NTL WESSEX COMPANY
NTL WINSTON HOLDINGS, INC.
NTL WIRRAL COMPANY
SOUTH CABLECOMMS HOLDINGS, INC.
SOUTH CABLECOMMS LLC
SOUTH CABLECOMMS MANAGEMENT, INC.
191
WINSTON INVESTORS LLC
192
SCHEDULE 17
Historic Representations
1. Each capitalised term used in Part A (Representations made prior to
the amendment agreement dated 4 September 2000), Part B
(Representations made on or after the amendment agreement dated 4
September 2000 but prior to the First Restatement Amendment
Agreement) and Part C (Representations made on or after the First
Restatement Amendment Agreement but prior to the Second Restatement
Amendment Agreement) of this Schedule 17 shall bear the meaning given
to such term in the form of this Agreement in force as at the time
the relevant representation and warranty was made or deemed to have
been repeated save that each of "New NTL", "Pre-Novation Borrower"
and "Post-Novation Borrower" shall bear the meaning given to such
term in the form of this Agreement scheduled to the Second
Restatement Amendment Agreement.
2. Each reference to "herewith", "hereof" or "this Agreement" shall, for
the purposes of interpretation of Part A (Representations made prior
to the amendment agreement dated 4 September 2000), Part B
(Representations made on or after the amendment agreement dated 4
September 2000 but prior to the First Restatement Amendment
Agreement) and Part C (Representations made on or after the First
Restatement Amendment Agreement but prior to the Second Restatement
Amendment Agreement) of this Schedule 17, be a reference to the form
of this Agreement in force at the time the relevant representation
and warranty was made or deemed to have been repeated.
3. Each reference to a clause number in Part A (Representations made
prior to the amendment agreement dated 4 September 2000), Part B
(Representations made on or after the amendment agreement dated 4
September 2000 but prior to the First Restatement Amendment
Agreement) and Part C (Representations made on or after the First
Restatement Amendment Agreement but prior to the Second Restatement
Amendment Agreement) of this Schedule 17 shall, for the purposes of
interpretation of this Schedule 17, be to the clause bearing such
number in the form of this Agreement in force at the time the
relevant representation and warranty was made or deemed to have been
repeated.
This Schedule 17 does not amend any representation made or deemed repeated
prior to the Second Restatement Amendment Effective Time or the identity of
any party which made, or was deemed to have repeated, any such representation.
This Schedule 17 is intended solely as a statement of the representations made
or deemed repeated prior to the Second Restatement Amendment Effective Time
and a statement of the parties which made or were deemed to have repeated such
representations. This Schedule 17 does not affect the legal validity of any
such representations made or deemed to have been repeated, or the rights or
obligations of any party in connection therewith.
193
Part A
Representations made prior to the amendment agreement
dated 4 September 2000
(A) Representing Parties
1. Each Obligor which became a party hereto on the Execution Date, made
the representations and warranties set out in paragraph (a) (Status
and Due Authorisation) to paragraph (i) (No Material Proceedings),
paragraph (l) (No Material Adverse Change), paragraph (p)
(Environmental Compliance) to paragraph (t) (Execution of this
Agreement) and paragraph (v) (Licenses and Consents) to paragraph (y)
(Security Interest) of Section B (Representations) of this Part A
with respect to itself.
2. On the Execution Date the Pre-Novation Borrower and, on the date it
became a party hereto CWC Holdings, made the representations and
warranties set out in paragraph (a) (Status and Due Authorisation) to
paragraph (j) (Audited Financial Statements), paragraph (l) (No
Material Adverse Change), paragraph (m) (Full Disclosure), paragraph
(p) (Environmental Compliance) to paragraph (t) (Execution of this
Agreement), paragraph (v) (Licenses and Consents) to paragraph (y)
(Security Interest), paragraph (aa) (Scheme Information) and
paragraph (cc) (Existing Target Indebtedness) of Section B
(Representations) of this Part A with respect to itself.
3. On the Execution Date the Pre-Novation Borrower and, on the date it
became a party hereto, CWC Holdings, made the representations and
warranties set out in paragraph (g) (No Winding-Up) to paragraph (i)
(No Material Proceedings), paragraph (p) (Environmental Compliance)
to paragraph (s) (No Loans), paragraph (v) (Licenses and Consents) to
paragraph (y) (Security Interest) and paragraph (aa) (Scheme
Information) to paragraph (cc) (Existing Target Indebtedness) of
Section B (Representations) of this Part A, with respect of each
member of the Target Group.
In addition, on the Execution Date the Pre-Novation Borrower made the
representations and warranties set out in paragraph (k) (Original
Financial Statements) and paragraph (l) (No Material Adverse Change)
below with respect to each member of the Target Group and made the
representations and warranties set out in sub-paragraph (iii) of
paragraph (n) (Business Plan and Information Memorandum) and
paragraph (ee) (Initial Guarantors) of Section B (Representations) of
this Part A.
4. On the Execution Date, the Parent made the representations and
warranties set out in:
(a) paragraph (a) (Status and Due Authorisation) to paragraph
(j) (Audited Financial Statements), paragraph (l) (No
Material Adverse Change) to paragraph (y) (Security
Interest), paragraph (z) (Group Structure) and paragraph
(aa) (Scheme Information) of Section B (Representations) of
this Part A in respect of itself; and
(b) paragraph (g) (No Winding-Up) to paragraph (i) (No Material
Proceedings), paragraph (p) (Environmental Compliance) to
paragraph (s) (No Loans) and paragraph (v) (Licenses and
Consents) to paragraph (z) (Group Structure) of Section B
(Representations) of this Part A with respect to each member
of the UK Group on such date.
194
5. On the Execution Date, New NTL made the representations and
warranties set out in paragraph (a) (Status and Due Authorisation),
paragraph (d) (Validity and Admissibility in Evidence) to paragraph
(g) (No Winding-Up) and paragraph (t) (Execution of this Agreement)
of Section B (Representations) of this Part A with respect to itself.
6. Each of the Parent, CWC Holdings, New NTL and each Obligor
acknowledged that the Finance Parties entered into the Finance
Documents in reliance on the representations and warranties referred
to at paragraph 1 to 5 above of this Section A.
(B) Representations
(a) Status and Due Authorisation
It is duly organised under the laws of the jurisdiction in which it
is established or incorporated with power to enter into each of the
Finance Documents to which it is a party and to exercise its rights
and perform its obligations thereunder and all corporate and other
action required to authorise its execution of each of the Finance
Documents to which it is a party and its performance of its
obligations thereunder has been duly taken. No limit on its powers
will be exceeded as a result of the borrowings, granting of security
or giving of guarantees contemplated by the Finance Documents to
which it is a party.
(b) No Deductions or Withholding
Under the laws of the jurisdiction in which it is established or
incorporated in force at the Execution Date, it will not be required
to make any deduction or withholding from any payment it may make
under any Finance Document to any Bank which is a Qualifying Lender
(assuming in the case of a Treaty Lender, that it has secured a
direction from the UK Inland Revenue to pay interest gross).
(c) No Immunity
In any proceedings taken in the jurisdiction in which it is
incorporated or established in relation to any Finance Document to
which it is party, it is not entitled to claim for itself or any of
its assets immunity from suit, execution, attachment or other legal
process.
(d) Validity and Admissibility in Evidence
All acts, conditions and things required to be done, fulfilled and
performed in order:
(i) to enable it lawfully to enter into, exercise its rights
under and perform and comply with the obligations expressed
to be assumed by it in each of the Finance Documents to
which it is party;
(ii) to ensure that the obligations expressed to be assumed by it
in each such Finance Document are legal, valid and (subject
to the Reservations) binding and enforceable; and
(iii) (subject to the Reservations) to make each such Finance
Document admissible in evidence in England,
195
have been done, fulfilled and performed (other than (a) the
registration of the Encumbrances created by the Security Documents
with the Registrar of Companies under Sections 395 and 398 of the
Companies Act 1985, and in respect of the Principal Property situated
in England and Wales, under Section 2 of the Land Charges Act 1972
and Section 26 of the Land Registration Act 1925, in respect of the
Principal Property situated in Scotland, in the Land Register of
Scotland or the General Register of Sasines and in respect of the
Principal Property situated in Northern Ireland in the Land Registry
of Northern Ireland or the Registry of Deeds in Belfast or any
similar registrations required in any applicable jurisdiction, (b)
the giving of any notices in respect of any contracts being assigned
pursuant to the Security Documents and (c) the obtaining of any
consents referred to in Clause 19.15 (Consents and Properties).
(e) No Filing or Stamp Taxes
Under the laws of the jurisdiction in which it is incorporated or
established in force at the Execution Date, it is not necessary that
any of the Finance Documents to which it is a party be filed,
recorded or enrolled with any court or other authority in such
jurisdiction or that any stamp, registration or similar tax be paid
on or in relation to any Finance Document other than the entries in
public registries referred to in Clause 16.5 (Validity and
Admissibility in Evidence) and fixed duties on assignments by way of
security.
(f) Binding Obligations
The obligations expressed to be assumed by it in each Finance
Document to which it is expressed to be a party are legal and valid
obligations and (subject to the Reservations) binding on it and
enforceable against it in accordance with the terms thereof.
(g) No Winding-up
No Obligor, no member of the UK Group or (as the case may be) no
member of the Target Group, has taken any corporate action nor have
any other steps been taken or legal proceedings been started and
served or (to the best of its knowledge and belief) threatened
against any Obligor, any member of the UK Group or (as the case may
be) any member of the Target Group, for its winding-up, dissolution,
administration or re-organisation or for the appointment of a
receiver, administrator, administrative receiver, trustee or similar
officer of it or of any or all of its assets or revenues (other than
for the purpose of a solvent reconstruction or amalgamation of such
Obligor, such member of the UK Group or (as the case may be) such
member of the Target Group (where such would not cause any breach of
this Agreement) or for the purpose of the transfer of all or part of
the business and assets of any Obligor, any member of the UK Group or
(as the case may be) any member of the Target Group to any other
Obligor, member of the UK Group or (as the case may be) member of the
Target Group respectively (provided that such transfer is permitted
under the terms of this Agreement)) and (save in the case of any
action, steps or proceedings relating to the appointment of an
administrator) other than where the relevant action, steps or
proceedings are frivolous or vexatious or being contested in good
faith by appropriate legal action and such action, steps or
proceedings are discontinued (in any such case) within 30 days of
commencement.
(h) No Material Defaults
No Obligor, no member of the UK Group or (as the case may be) no
member of the Target Group, is in breach of or in default under any
agreement to which it is a party
196
(including, without limitation, the Material Commercial Contracts) or
which is binding on it or any of its assets and no party has
terminated or is entitled to terminate (on the basis of any breach of
or default thereunder) any such agreement, to an extent or in a
manner which could reasonably be expected to have a Material Adverse
Effect.
(i) No Material Proceedings
No action or administrative proceeding of or before any court,
arbitrator or agency (including, but not limited to, investigative
proceedings) which could reasonably be expected to have a Material
Adverse Effect has been started or threatened against it or any of
its assets.
(j) Audited Financial Statements
Its most recent consolidated audited financial statements, excluding
for the purposes of this paragraph (j), the Original Financial
Statements in relation to the Target:
(i) were prepared in accordance with accounting principles
generally accepted in its jurisdiction of incorporation and
consistently applied;
(ii) disclose all material liabilities (contingent or otherwise)
and all material unrealised or anticipated losses of any
member of the UK Group or, as the case may be, any member of
the Target Group; and
(iii) save as disclosed therein, give a true and fair view of the
financial condition and operations of the UK Group or, as
the case may be, the Target Group during the relevant
financial year.
(k) Original Financial Statements
Save as disclosed in the Disclosure Letter, the financial statements
of the Target referred to in paragraph (c) of the definition of
Original Financial Statements, to the best of its knowledge and
belief:
(i) were prepared in accordance with accounting principles
generally accepted in England and Wales and consistently
applied;
(ii) disclose all material liabilities (contingent or otherwise)
and all material unrealised or anticipated losses of the
Target and the CWC ConsumerCo Business; and
(iii) save as disclosed therein, give a true and fair view of the
financial condition and operations of the Target and the CWC
ConsumerCo Business during the period to which such
financial statements relate.
(l) No Material Adverse Change
Since the date as at which its most recent audited financial
statements (where required by Clause 17.1 (Annual Statements),
consolidated, in the case of the Parent and the CWC Parent) were
stated to be prepared, there has been no change in its business or
financial condition or, in the case of the Parent, in the business or
financial condition of any member of the UK Group or of the UK Group
taken as a whole or, in the case of the CWC Parent, in the business
or financial condition of any member of the Target Group
197
or of the Target Group taken as a whole which, in each case, could
reasonably be expected to have a Material Adverse Effect.
(m) Full Disclosure
It is not aware of any material facts or circumstances that have not
been disclosed to the Finance Parties originally party hereto and
which would, in its reasonable opinion, if disclosed, adversely
affect the decision of a person considering whether or not to provide
finance for the purposes set out in Clauses 2.2 (Purpose prior to
Pushdown) and 2.3 (Purpose after Pushdown) on the terms of the
Finance Documents.
(n) Business Plan and Information Memorandum
The Parent:
(i) does not regard any of the forecasts or projections set out
in the Business Plan as unreasonable or, to any material
extent, unattainable;
(ii) considers (having made all reasonable enquiries) the
assumptions upon which the forecasts and projections
contained in the Business Plan are based to be fair and
reasonable in all material respects; and
(iii) confirms that the factual information contained in the
Information Memorandum and any other factual written
information supplied by any member of the UK Group or any
member of the Target Group (in the latter case, supplied
after the Acquisition Date or, if supplied before the
Acquisition Date, supplied with the Parent's knowledge) to
the Agent, the Arrangers and the Banks in connection
herewith is (in the case of any such information supplied by
any member of the Target Group, to the best of its knowledge
and belief) true, complete and accurate in all material
respects.
(o) Budgets
It:
(i) regards (as at the date each Budget is delivered to the
Agent) as neither unreasonable, nor to any material extent
unattainable, any of the forecasts or projections set out in
the latest Budget delivered under Clause 17.5 (Budgets);
(ii) believes (having made all reasonable enquiries) the
assumptions, upon which the forecasts and projections in
relation to the CWC ConsumerCo Business contained in the
latest Budget delivered under Clause 17.5 (Budgets) are
based, to be fair and reasonable; and
(iii) has, to the best of its knowledge and belief (having made
all reasonable efforts to make due and careful enquiry),
made full disclosure of all material facts relating to the
CWC ConsumerCo Business to all the persons responsible for
the preparing of the latest Budget delivered under Clause
17.5 (Budgets).
(p) Environmental Compliance
Each member of the UK Group and (to the best of its knowledge and
belief) each member of the Target Group has complied in all material
respects with all Environmental Law and obtained and maintained any
Environmental Permits breach of which or, as the
198
case may be, failure to obtain or maintain which, could reasonably be
expected to have a Material Adverse Effect.
(q) Environmental Claims
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against any member of the UK
Group or any member of the Target Group where such claim would be
reasonably likely, if determined against such member of the UK Group
or the Target Group, to have a Material Adverse Effect.
(r) No Encumbrances
Save (in each case) for Permitted Encumbrances, no Encumbrance exists
over all or any of its present or future revenues or assets and, in
the case of the Parent, over all or any of the present or future
revenues or assets of any other member of the UK Group and, in the
case of the Original Borrower and the CWC Parent, over all or any of
the present or future revenues or assets of any other member of the
Target Group.
(s) No Loans
Save (in each case) for Permitted Loans and Guarantees, neither the
Original Borrower, any member of the UK Group nor (to the best of its
knowledge and belief) any member of the Target Group has made any
loans or granted any credit or other financial accommodation which is
or are outstanding.
(t) Execution of this Agreement
Its execution of each Finance Document to which it is a party and the
performance of its obligations thereunder do not and will not:
(i) conflict with any agreement, mortgage, bond or other
instrument or treaty to which it is party or which is
binding upon it or any of its assets in a manner that could
reasonably be expected to have a Material Adverse Effect;
(ii) conflict with its constitutive documents and rules and
regulations; or
(iii) conflict with any applicable law.
(u) Ownership of the Parent
The Parent is a wholly-owned subsidiary of NTL Holdings, and no
persons or group of connected persons (as construed in accordance
with Clause 10.8 (Mandatory Prepayment due to Change in Control)) has
control (as construed in accordance with Clause 10.8 (Mandatory
Prepayment due to Change in Control)) of NTL Holdings.
(v) Licences and Consents
It and, in the case of the Parent, each member of the UK Group and,
in the case of the Original Borrower and the CWC Parent, each member
of the Target Group has, at all relevant times, obtained all material
licences (including, without limitation, the Licences), permissions,
authorisations and consents (each an "approval") required for the
conduct of its business as carried on from time to time, and all such
approvals are valid and subsisting save in any such case where
failure to obtain such an approval or the invalidity of such an
approval or its failure to subsist could not reasonably be expected
to have a Material Adverse Effect and to the best of its knowledge
and belief (having made, with respect to the UK Group only, due and
careful enquiry) there has been no act or
199
omission on the part of it or, as the case may be, any Target Group
member or any UK Group member, which is likely to give rise to the
enforcement, revocation, material amendment, suspension, withdrawal
or avoidance of any of the approvals or any of the material terms or
conditions thereof, which enforcement, revocation, amendment,
withdrawal, suspension or avoidance could reasonably be expected to
have a Material Adverse Effect.
(w) Government or Regulatory Authority Inquiry
Neither it nor, in the case of the Parent, any member of the UK Group
nor, in the case of the Original Borrower and the CWC Parent, any
member of the Target Group, has to the best of its knowledge and
belief (having made with respect to the UK Group only, due and
careful enquiry) received any notice or communication which has not
been disclosed to the Agent on or prior to the Execution Date from,
or is aware of, any inquiry, investigation or proceeding on the part
of any government, court or regulatory agency or authority the effect
of which, in any such case, could reasonably be expected to have a
Material Adverse Effect.
(x) Intellectual Property
It is not aware of any adverse circumstance relating to the validity,
subsistence or use of any of its and, in the case of the Original
Borrower and the CWC Parent, any member of the Target Group's and, in
the case of the Parent, any member of the UK Group's Intellectual
Property which could reasonably be expected to have a Material
Adverse Effect.
(y) Security Interest
(i) Subject (in each case) to the Reservations, each Security
Document creates the security interest which that Security
Document purports to create or, if that Security Document
purports to evidence a security interest, accurately
evidences a security interest which has been validly created
and each security interest ranks in priority (save in
respect of, if and to the extent applicable, Permitted
Encumbrances) as specified in the Security Document creating
or evidencing that interest.
(ii) Save as disclosed in the Disclosure Letter, the shares of
any UK Group or Target Group member which are subject to an
Encumbrance under the Security Documents are fully paid and
not subject to any option to purchase or similar rights and
the constitutional documents of any such UK Group or Target
Group member do not and could not restrict or inhibit
(whether absolutely, partly, under a discretionary power or
otherwise) any transfer of such shares pursuant to
enforcement of the Security Documents.
(z) Group Structure
The corporate structure of the UK Group and the NTL Holding Group set
out in the Group Structure Chart delivered pursuant to Clause 2.5
(Initial Conditions Precedent) and the corporate structure of the UK
Group, the Target Group and the NTL Holding Group set out in any
Group Structure Chart delivered to the Agent pursuant to Clause 19.37
(Revised Group Structure) is true, complete and accurate, in each
case as at the date of its delivery to the Agent.
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(aa) Scheme Information
The CWC Circular contains all the material terms of the Scheme and
the information contained in the CWC Circular relating to the Group
(other than the Target Group), and the Scheme and, to the best of its
knowledge and belief, the CWC ConsumerCo Business is true, complete
and accurate in all material respects on its date of despatch. An
office copy of the order of the court sanctioning the Scheme under
Section 425 was filed with the Registrar of Companies for
registration pursuant to sub-section 3 of Section 425 on 12 May 2000.
(bb) The Scheme
In relation to the Scheme:
(i) no step has been taken which has increased (or may in the
future increase) the offer price under the Scheme beyond the
level specified in the CWC Circular;
(ii) no modification, variation or amendment of a material nature
has been made to, and no waiver has been granted in respect
of, any of the conditions set out in Appendix 2 to the CWC
Circular or in the Transaction Agreement;
(iii) no press release or other publicity, the text of which has
not previously been agreed with the Agent, which makes
reference to the Revolving Facility or to some or all of the
Finance Parties has been issued or allowed to be issued; and
(iv) in all material respects relevant in the context of the
Scheme, it and each of its affiliates (as relevant) has
complied with the Code, the Financial Services Act 1986, the
Companies Act 1985 and all other applicable laws and
regulations.
(cc) Existing Target Indebtedness
To the best of its knowledge and belief:
(i) the Financial Indebtedness of the CWC Parent and its
subsidiaries comprises:
(A) the Financial Indebtedness set out in paragraphs (a)
to (n) of the definition of Existing Target
Indebtedness; and
(B) the Financial Indebtedness in respect of the
Existing Performance Bonds referred to in paragraphs
(a) and (b) of the definition thereof;
(ii) there are no contractual provisions in any document
constituting such Existing Target Indebtedness or the
Existing Performance Bonds or in any other document to which
the CWC Parent or any of its subsidiaries are party, or
which is binding on the CWC Parent or any of its
subsidiaries (or any of their assets) which will prevent
compliance with Clause 19.17 (Post-Acquisition Date
Security).
(dd) Existing Group Indebtedness
(i) NTL UK owes no Financial Indebtedness to any other members
of the NTL Holding Group, other than NTL CC.
(ii) The Parent owes no Financial Indebtedness to any members of
the NTL Holding Group, other than NTL UK.
201
(ee) Initial Guarantors
The aggregate EBITDA of the members of the Target Group listed in
Schedule 13 (Members of the Target Group Granting Security) for the
financial year ended 31 March 1999 equal or exceeds 90% of the
aggregate EBITDA of the CWC ConsumerCo Business for that financial
year.
(C) Representations made on each date upon which a company became an
Additional Obligor prior to the amendment agreement dated 4 September
2000
1. On the date on which the Post-Novation Borrower became an Additional
Borrower:
(a) CWC Holdings made the representations and warranties set out
in paragraph (a) (Status and Due Authorisation), paragraph
(c) (No Immunity), paragraph (f) (Binding Obligations),
paragraph (h) (No Material Defaults) to paragraph (j)
(Audited Financial Statements), paragraph (o) (Budgets),
paragraph (t) (Execution of this Agreement), paragraph (x)
(Intellectual Property), paragraph (y) (Security Interest)
and paragraph (z) (Group Structure) of Section B
(Representations) of this Part A; and
(b) the Post-Novation Borrower made the representations and
warranties referred to at paragraph 1 of Section A
(Representing Parties) of this Part A.
2. On each date upon which a company became a Guarantor:
(a) the Parent or, as the case may have required, CWC Holdings
made the representations and warranties referred to at
paragraph 1(a), of this Section C; and
(b) the relevant company acceding as a Guarantor made the
representations and warranties set out in paragraph (a)
(Status and Due Authorisation), paragraph (c) (No Immunity),
paragraph (f) (Binding Obligations), paragraph (h) (No
Material Defaults), paragraph (i) (No Material Proceedings),
paragraph (t) (Execution of this Agreement), paragraph (x)
(Intellectual Property) and paragraph (y) (Security
Interest) of Section B (Representations) of this Part A.
(D) Representations deemed to have been repeated prior to the amendment
agreement dated 4 September 2000
The representations and warranties referred to at paragraph 1(a) of
Section (C) (Representations made on each date upon which a company
became an Additional Obligor prior to the amendment agreement dated 4
September 2000) of this Part A were (to the extent applicable) deemed
to have been repeated by the Pre-Novation Borrower, CWC Holdings (on
and after the date on which it became a party hereto), the Parent,
the Obligors and New NTL on each date on which a Revolving Advance
was made and on each date on which a company became an Additional
Obligor, and to the extent that the representations set out in
sub-paragraph (iii) of paragraph (n) (Business Plan and Information
Memorandum) of Section B (Representations) of this Part A related to
the Information Memorandum, such was deemed to have been made on the
date that the Information Memorandum was approved by each of the
Pre-Novation Borrower and the
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Parent and (save as otherwise disclosed by the Parent, in writing to
the Agent, prior to the Syndication Date) on the Syndication Date.
203
Part B
Representations made on or after the amendment
agreement dated 4 September 2000 but prior to the
First Restatement Amendment Agreement
1. At the date of the amendment agreement dated 4 September 2000, each
Obligor made the representations and warranties set out in paragraph
(a) (Status and Due Authorisation), paragraph (c) (No Immunity),
paragraph (f) (Binding Obligations), paragraph (h) (No Material
Defaults), paragraph (i) (No Material Proceedings), paragraph (o)
(Budgets), paragraph (t) (Execution of this Agreement), paragraph (x)
(Intellectual Property), paragraph (y) (Security Interest) and
paragraph (z) (Group Structure) of Section B (Representations) of
Part A (Representations made prior to the amendment agreement dated 4
September 2000) of this Schedule 17 and the representation set out at
paragraph 2 of this Part B, in each case as if each reference therein
to "this Agreement" or "the Finance Documents" included a reference
to the amendment agreement dated 4 September 2000 and this Agreement
as amended by such amendment agreement.
2. At the date of the amendment agreement dated 4 September 2000, each
Obligor represented and warranted that its most recent consolidated
audited financial statements, excluding for the purposes of the
representation, the Original Financial Statements in relation to the
Target:
(a) were prepared in accordance with accounting principles
generally accepted in its jurisdiction of incorporation and
consistently applied;
(b) disclose, in the case of the audited financial statements of
the Pre-Novation Borrower, all material liabilities
(contingent or otherwise) and all material unrealised or
anticipated losses of the Pre-Novation Borrower and its
consolidated subsidiaries, and in all other cases, all
material liabilities (contingent or otherwise) and all
material unrealised or anticipated losses of any member of
the UK Group or, as the case may be, any member of the
Target Group; and
(c) save as disclosed therein, give a true and fair view of the
financial condition and operations of, as the case may be,
the Pre-Novation Borrower and its consolidated subsidiaries,
the UK Group or, as the case may be, the Target Group during
the relevant financial year.
3. On each date upon which a company became a Guarantor:
(a) the Parent or, as the case may have required, CWC Holdings
made the representations and warranties referred to at
paragraph 1 (a) of Section (C) (Representations made on each
date upon which a company became an Additional Obligor prior
to the amendment agreement dated 4 September 2000) of Part A
(Representations made prior to amendment agreement dated 4
September 2000) of this Schedule 17, save for the
representation referred to therein at paragraph (j) (Audited
Financial Statements);
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(b) the Parent or as the case may have required, CWC Holdings
made the representation and warranty set out at paragraph 2
of this Part B; and
(c) the company acceding as a Guarantor made the representations
and warranties referred to at paragraph 2(b) of Section C
(Representations made on each date upon which a company
became an Additional Obligor prior to the amendment
agreement dated 4 September 2000) of Part A (Representations
made prior to the amendment agreement dated 4 September
2000) of this Schedule 17.
4. The representations and warranties referred to at paragraph 3(a) of
this Part B were (to the extend applicable) deemed to have been
repeated by the Pre-Novation Borrower, CWC Holdings (on and after the
date on which it became a party hereto) the Parent, the Obligors and
New NTL on each date on which a Revolving Advance was made and on
each date on which a company became an Additional Obligor, and to the
extent that the representations set out in sub-paragraph (iii) of
paragraph (n) (Business Plan Information Memorandum) of Section B
(Representations) of Part A (Representations made prior to the
amendment agreement dated 4 September 2000) related to the
Information Memorandum such was deemed to have been made on the date
that the Information Memorandum was approved by each of the
Pre-Novation Borrower and the Parent and (save as otherwise disclosed
by the Parent, in writing to the Agent, prior to the Syndication
Date) on the Syndication Date.
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Part C
Representations made on or after the First Restatement
Amendment Agreement but prior to the Second Restatement
Amendment Agreement
(A) Representing Parties
1. At the date of the First Restatement Amendment Agreement, each
Obligor made the representations and warranties set out in paragraph
(a) (Status and Due Authorisation), paragraph (c) (No Immunity),
paragraph (f) (Binding Obligations), paragraph (h) (No Material
Defaults) to paragraph (j) (Audited Financial Statements), paragraph
(m) (Budgets), paragraph (r) (Execution of this Agreement), paragraph
(v) (Intellectual Property), paragraph (w) (Security Interest),
paragraph (x) (Group Structure) and paragraph (y) (Existing Group
Indebtedness) of Section B (Representations) of this Part C and the
representations and warranties referred to as being made by it in
paragraph 2 below, as if each reference therein to "this Agreement"
or "the Finance Documents" included a reference to the Second
Restatement Amendment Agreement and this Agreement as amended by the
Second Restatement Amendment Agreement and as if references to the
Term Effective Date were references to the date of the Second
Restatement Amendment Agreement.
2. On the Term Effective Date:
(a) each Obligor (other than the Post-Novation Borrower) made
the representations and warranties set out in paragraph (a)
(Status and Due Authorisation) to paragraph (i) (No Material
Proceedings), paragraph (k) (No Material Adverse Change),
paragraph (n) (Environmental Compliance) to paragraph (r)
(Execution of this Agreement) and paragraph (t) (Licences
and Consents) to paragraph (w) (Security Interest) of
Section B (Representations) of this Part C with respect to
itself;
(b) the Post-Novation Borrower made the representations and
warranties set out in paragraph (a) (Status and Due
Authorisation) to paragraph (i) (No Material Proceedings),
paragraph (k) (No Material Adverse Change), sub-paragraph
(i) of paragraph (l) (Full Disclosure), paragraph (n)
(Environmental Compliance) to paragraph (r) (Execution of
this Agreement), paragraph (t) (Licenses and Consents) to
sub-paragraph (i) of paragraph (x) (Group Structure) and
paragraph (aa) (NTL Inc. Business Plan and Other
Information) to paragraph (ee) (Principal Properties) of
Section B (Representations) of this Part C with respect to
itself and paragraph (y) (Existing Group Indebtedness) and
paragraph (z) (UK Group Financial Statements) of Section B
(Representations) of this Part C;
(c) the Parent made the representations and warranties set out
in:
(i) paragraph (a) (Status and Due Authorisation) to (j)
(Audited Financial Statements), paragraph (k) (No
Material Adverse Change), sub-paragraph (i) of
paragraph (l) (Full Disclosure), paragraph (m)
(Budgets) to sub-paragraph (i) of paragraph (x)
(Group Structures), paragraph (y) (Existing
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Group Indebtedness) and paragraph (z) (UK Group
Financial Statements) to paragraph (ee) (Principal
Properties) of Section B (Representations) of this
Part C with respect to itself; and
(ii) paragraph (g) (No Winding-Up) to paragraph (i) (No
Material Proceedings), paragraph (n) (Environmental
Compliance) to paragraph (q) (No Loans) and
paragraph (t) (Licenses and Consents) to
sub-paragraph (i) of paragraph (x) (Group Structure)
of Section B (Representations) of this Part C with
respect to each member of the UK Group; and
(d) NTL CC made the representations and warranties set out in
paragraph (a) (Status and Due Authorisation), paragraph (d)
(Validity and Admissibility in Evidence) to paragraph (f)
(Binding Obligations), paragraph (r) (Execution of this
Agreement) and paragraph (y) (Existing Group Indebtedness)
of Section B (Representations) of this Part C with respect
to itself.
3. On each Additional Finance Provider Accession Date:
(a) each Obligor (other than the Post-Novation Borrower) made
the representations and warranties set out in paragraph (a)
(Status and Due Authorisation) to paragraph (i) (No Material
Proceedings), paragraph (k) (No Material Adverse Change),
paragraph (n) (Environmental Compliance) to paragraph (r)
(Execution of this Agreement) and paragraph (t) (Licenses
and Consents) to paragraph (w) (Security Interest) of
Section B (Representations) of this Part C with respect to
itself;
(b) the Post-Novation Borrower made the representations and
warranties set out in paragraph (a) (Status and Due
Authorisation) to paragraph (i) (No Material Proceedings),
paragraph (k) (No Material Adverse Change), sub-paragraph
(ii) of paragraph (l) (Full Disclosure), paragraph (n)
(Environmental Compliance) to paragraph (r) (Execution of
this Agreement), paragraph (t) (Licences and Consents) to
paragraph (w) (Security Interest), paragraph (y) (Existing
Group Indebtedness) and paragraph (bb) (No Default) of
Section B (Representations) of this Part C;
(c) the Parent made the representations and warranties set out
in:
(i) paragraph (a) (Status and Due Authorisation) to
paragraph (j) (Audited Financial Statements),
paragraph (k) (No Material Adverse Change),
sub-paragraph (ii) of paragraph (l) (Full
Disclosure), paragraph (m) (Budgets) to paragraph
(w) (Security Interest), paragraph (y) (Existing
Group Indebtedness) and paragraph (bb) (No Default)
of Section B (Representations) of this Part C with
respect to itself; and
(ii) paragraph (g) (No Winding-Up) to paragraph (i) (No
Material Proceedings), paragraph (n) (Environmental
Compliance) to paragraph (q) (No Loans) and
paragraph (t) (Licences and Consents) to paragraph
(w) (Security Interest) of Section B
(Representations) of this Part C with respect to
each member of the UK Group; and
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(d) New NTL made the representations and warranties set out in
paragraph (a) (Status and Due Authorisation), paragraph (d)
(Validity and Admissibility in Evidence) to paragraph (f)
(Binding Obligations), paragraph (r) (Execution of this
Agreement) and paragraph (y) (Existing Group Indebtedness)
of Section B (Representations) of this Part C with respect
to itself.
(B) Representations
(a) Status and Due Authorisation
It is duly organised under the laws of the jurisdiction in which it
is established or incorporated with power to enter into each of the
Finance Documents to which it is a party and to exercise its rights
and perform its obligations thereunder and all corporate and other
action required to authorise its execution of each of the Finance
Documents to which it is a party and its performance of its
obligations thereunder has been duly taken. No limit on its powers
will be exceeded as a result of the borrowings, granting of security
or giving of guarantees contemplated by the Finance Documents to
which it is a party.
(b) No Deductions or Withholding
Under the laws of the jurisdiction in which it is established or
incorporated in force at the date of the First Restatement Amendment
Agreement, it will not be required to make any deduction or
withholding from any payment it may make under any Finance Document
to any Bank which is a Qualifying Lender (assuming in the case of a
Treaty Lender, that it has secured a direction from the UK Inland
Revenue to pay interest gross).
(c) No Immunity
In any proceedings taken in the jurisdiction in which it is
incorporated or established in relation to any Finance Document to
which it is party, it is not entitled to claim for itself or any of
its assets immunity from suit, execution, attachment or other legal
process.
(d) Validity and Admissibility in Evidence
All acts, conditions and things required to be done, fulfilled and
performed in order:
(i) to enable it lawfully to enter into, exercise its rights
under and perform and comply with the obligations expressed
to be assumed by it in each of the Finance Documents to
which it is party;
(ii) to ensure that the obligations expressed to be assumed by it
in each such Finance Document are legal, valid and (subject
to the Reservations) binding and enforceable; and
(iii) (subject to the Reservations) to make each such Finance
Document admissible in evidence in England,
have been done, fulfilled and performed, other than (a) the
registration of the Encumbrances created by the Security Documents
(and, in the case of the representations and warranties referred to
as having been made in paragraph 2 of Section A (Representing
Parties) of this Part C, the Second Security Documents) with the
Registrar of Companies under Sections 395 and 398 of the Companies
Act 1985, and in respect of the Principal Properties and any other
properties subject to the Security and Second
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Security situated in England and Wales, under Section 2 of the Land
Charges Act 1972 and Section 26 of the Land Registration Act 1925, in
respect of the Principal Properties and any other properties subject
to the Security and Second Security situated in Scotland, in the Land
Register of Scotland or the General Register of Sasines and in
respect of the Principal Properties and any other properties subject
to the Security and Second Security situated in Northern Ireland in
the Land Registry of Northern Ireland or the Registry of Deeds in
Belfast or any similar registrations required in any applicable
jurisdiction, (b) the giving of any notices in respect of any
contracts being assigned pursuant to the Security Documents (and, in
the case of the representations and warranties referred to as having
been made in paragraph 2 of Section A (Representing Parties) of this
Part C, the Second Security Documents) and (c) the obtaining of any
consents referred to in Clause 23.15 (Consents and Properties).
(e) No Filing or Stamp Taxes
Under the laws of the jurisdiction in which it is incorporated or
established in force at the date hereof, it is not necessary that any
of the Finance Documents to which it is a party be filed, recorded or
enrolled with any court or other authority in such jurisdiction or
that any stamp, registration or similar tax be paid on or in relation
to any Finance Document other than the entries in public registries
referred to in Clause 20.5 (Validity and Admissibility in Evidence)
and fixed duties on assignments by way of security.
(f) Binding Obligations
The obligations expressed to be assumed by it in each Finance
Document to which it is expressed to be a party are legal and valid
obligations and (subject to the Reservations) binding on it and
enforceable against it in accordance with the terms thereof.
(g) No Winding-up
No Obligor, no member of the UK Group or (as the case may be) no
member of the Target Group, has taken any corporate action nor have
any other steps been taken or legal proceedings been started and
served or (to the best of its knowledge and belief) threatened
against any Obligor, any member of the UK Group or (as the case may
be) any member of the Target Group, for its winding-up, dissolution,
administration or re-organisation or for the appointment of a
receiver, administrator, administrative receiver, trustee or similar
officer of it or of any or all of its assets or revenues (other than
for the purpose of a solvent reconstruction or amalgamation of such
Obligor, such member of the UK Group or (as the case may be) such
member of the Target Group (where such would not cause any breach of
this Agreement) or for the purpose of the transfer of all or part of
the business and assets of any Obligor, any member of the UK Group or
(as the case may be) any member of the Target Group to any other
Obligor, member of the UK Group or (as the case may be) member of the
Target Group respectively (provided that such transfer is permitted
under the terms of this Agreement)) and (save in the case of any
action, steps or proceedings relating to the appointment of an
administrator) other than where the relevant action, steps or
proceedings are frivolous or vexatious or being contested in good
faith by appropriate legal action and such action, steps or
proceedings are discontinued (in any such case) within 30 days of
commencement.
(h) No Material Defaults
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No Obligor, no member of the UK Group or (as the case may be) no
member of the Target Group, is in breach of or in default under any
agreement to which it is a party (including, without limitation, the
Material Commercial Contracts) or which is binding on it or any of
its assets and no party has terminated or is entitled to terminate
(on the basis of any breach of or default thereunder) any such
agreement, to an extent or in a manner which could reasonably be
expected to have a Material Adverse Effect.
(i) No Material Proceedings
No action or administrative proceeding of or before any court,
arbitrator or agency (including, but not limited to, investigative
proceedings) which could reasonably be expected to have a Material
Adverse Effect has been started or threatened against it or any of
its assets.
(j) Audited Financial Statements
Its most recent consolidated audited financial statements (if any),
excluding for the purposes of this paragraph (j), the Original
Financial Statements in relation to the Target:
(iv) were prepared in accordance with accounting principles
generally accepted in its jurisdiction of incorporation and
consistently applied;
(v) disclose, in the case of the audited financial statements of
the Pre-Novation Borrower, all material liabilities
(contingent or otherwise) and all material unrealised or
anticipated losses of the Pre-Novation Borrower and its
consolidated subsidiaries, and in all other cases, all
material liabilities (contingent or otherwise) and all
material unrealised or anticipated losses of any member of
the UK Group or, as the case may be, any member of the
Target Group; and
(vi) save as disclosed therein, give a true and fair view of the
financial condition and operations of, as the case may be,
the Pre-Novation Borrower and its consolidated subsidiaries,
the UK Group or, as the case may be, the Target Group during
the relevant financial year.
(k) No Material Adverse Change
Since the date as at which its most recent audited financial
statements (where required by Clause 21.1 (Annual Statements),
consolidated, in the case of the Parent and the CWC Parent) were
stated to be prepared, there has been no change in its business or
financial condition or, in the case of the Parent, in the business or
financial condition of any member of the UK Group or of the UK Group
taken as a whole or, in the case of the CWC Parent, in the business
or financial condition of any member of the Target Group or of the
Target Group taken as a whole which, in each case, could reasonably
be expected to have a Material Adverse Effect.
(l) Full Disclosure
(i) In the case of the representations and warranties referred
to as having been made in paragraph 2 of Section A
(Representing Parties) of this Part C, it is not aware of
any material facts or circumstances that have not been
disclosed to the Term Banks party hereto on the Term
Execution Date and which would, in its reasonable opinion,
if disclosed, adversely affect the decision of a person
210
considering whether or not to provide finance for the
purposes set out in sub-clause 2.3.2 of Clause 2.3 (Purpose
after Pushdown) on the terms of the Finance Documents.
(ii) In relation to each Additional Finance Provider:
(A) with respect to the representations and warranties
referred to as having been made in paragraph 3 of
Section A (Representing Parties) of this Part C, it
is not aware of any material facts or circumstances
that have not been disclosed to each Additional
Finance Provider on the Additional Finance Provider
Accession Date relating to that Additional Finance
Provider and which would, in its reasonable opinion,
if disclosed, adversely affect the decision of a
person considering whether or not to provide finance
for the purposes set out in sub-clause 2.3.1 of
Clause 2.3 (Purpose after Pushdown) on the terms of
the Finance Documents; and
(B) the Additional Finance Provider has been provided,
prior to the Additional Finance Provider Accession
Date on which it became a party to this Agreement,
with a true and complete copy or conformed copy of
each Finance Document (other than the fee letters
mentioned in Clause 26.7 (Agency and Other Fees),
any Secured Hedging Agreement, the Second Security
Documents, the Second Security Trust Agreement, the
NTL UK Term Bank Subordination Agreement, any
documents which are no longer of relevance or which
amended this Agreement solely for the purpose of
syndicating the Revolving Facility or have been
reflected in restatements of documents which have
been provided).
(m) Budgets
It:
(i) regards (as at the date each Budget is delivered to the
Agent) as neither unreasonable, nor to any material extent
unattainable, any of the forecasts or projections set out in
the latest Budget delivered under Clause 21.5 (Budgets);
(ii) believes (having made all reasonable enquiries) the
assumptions, upon which the forecasts and projections in
relation to the CWC ConsumerCo Business contained in the
latest Budget delivered under Clause 21.5 (Budgets) are
based, to be fair and reasonable; and
(iii) has, to the best of its knowledge and belief (having made
all reasonable efforts to make due and careful enquiry),
made full disclosure of all material facts relating to the
CWC ConsumerCo Business to all the persons responsible for
the preparing of the latest Budget delivered under Clause
21.5 (Budgets).
(n) Environmental Compliance
The Pre-Novation Borrower, each member of the UK Group and (to the
best of its knowledge and belief) each member of the Target Group has
complied in all material respects with all Environmental Law and
obtained and maintained any Environmental
211
Permits breach of which or, as the case may be, failure to obtain or
maintain which, could reasonably be expected to have a Material
Adverse Effect.
(o) Environmental Claims
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against the Pre-Novation
Borrower, any member of the UK Group or any member of the Target
Group where such claim would be reasonably likely, if determined
against the Pre-Novation Borrower or such other member of the UK
Group or the Target Group, to have a Material Adverse Effect.
(p) No Encumbrances
Save (in each case) for Permitted Encumbrances, no Encumbrance exists
over all or any of its present or future revenues or assets and, in
the case of the Parent, over all or any of the present or future
revenues or assets of any other member of the UK Group and, in the
case of the Pre-Novation Borrower and the CWC Parent, over all or any
of the present or future revenues or assets of any other member of
the Target Group.
(q) No Loans
Save (in each case) for Permitted Loans and Guarantees, neither the
Pre-Novation Borrower, any member of the UK Group nor (to the best of
its knowledge and belief) any member of the Target Group has made any
loans or granted any credit or other financial accommodation which is
or are outstanding.
(r) Execution of this Agreement
Its execution of each Finance Document to which it is a party, the
exercise of its rights and the performance of its obligations
thereunder do not and will not:
(i) conflict with any agreement, mortgage, bond or other
instrument or treaty to which it is party or which is
binding upon it or any of its assets in a manner that could
reasonably be expected to have a Material Adverse Effect;
(ii) conflict with its constitutive documents and rules and
regulations; or
(iii) conflict with any applicable law.
(s) Ownership of the Parent
The Parent is a wholly-owned subsidiary of NTL Holdings, and no
persons or group of connected persons (as construed in accordance
with Clause 13.7 (Mandatory Prepayment due to Change in Control)) has
control (as construed in accordance with Clause 13.7 (Mandatory
Prepayment due to Change in Control)) of NTL Holdings.
(t) Licences and Consents
It and, in the case of the Parent, each member of the UK Group and,
in the case of the Pre-Novation Borrower and the CWC Parent, each
member of the Target Group has, at all relevant times, obtained all
material licences (including, without limitation, the Licences),
permissions, authorisations and consents (each an "approval")
required for the conduct of its business as carried on from time to
time, and all such approvals are valid and subsisting save in any
such case where failure to obtain such an approval or the invalidity
of such an approval or its failure to subsist could not reasonably be
expected to have a Material Adverse Effect and to the best of its
knowledge and belief (having made,
212
with respect to the UK Group only, due and careful enquiry) there has
been no act or omission on the part of it or, as the case may be, any
Target Group member or any UK Group member, which is likely to give
rise to the enforcement, revocation, material amendment, suspension,
withdrawal or avoidance of any of the approvals or any of the
material terms or conditions thereof, which enforcement, revocation,
amendment, withdrawal, suspension or avoidance could reasonably be
expected to have a Material Adverse Effect.
(u) Government or Regulatory Authority Inquiry
Neither it nor, in the case of the Parent, any member of the UK Group
nor, in the case of the Pre-Novation Borrower and the CWC Parent, any
member of the Target Group, has to the best of its knowledge and
belief (having made with respect to the UK Group only, due and
careful enquiry) received any notice or communication which has not
been disclosed to the Agent on or prior to the date hereof (or, where
this representation and warranty is referred to as having been made
in paragraph 2 of Section A (Representing Parties) of this Part C, to
the Term Banks on or prior to the Term Execution Date) from, or is
aware of, any inquiry, investigation or proceeding on the part of any
government, court or regulatory agency or authority the effect of
which, in any such case, could reasonably be expected to have a
Material Adverse Effect.
(v) Intellectual Property
It is not aware of any adverse circumstance relating to the validity,
subsistence or use of any of its and, in the case of the Pre-Novation
Borrower and the CWC Parent, any member of the Target Group's and, in
the case of the Parent, any member of the UK Group's Intellectual
Property which could reasonably be expected to have a Material
Adverse Effect.
(w) Security Interest
(i) Subject (in each case) to the Reservations, each Security
Document and Second Security Document creates the security
interest which that Security Document or Second Security
Document purports to create or, if that Security Document or
Second Security Document purports to evidence a security
interest, accurately evidences a security interest which has
been validly created and each security interest ranks in
priority (save in respect of, if and to the extent
applicable, Permitted Encumbrances) as specified in the
Security Document creating or evidencing that interest.
(ii) Save as disclosed in the Disclosure Letter, the shares of
any UK Group or Target Group member which are subject to an
Encumbrance under the Security Documents and Second Security
Documents are fully paid and not subject to any option to
purchase or similar rights and the constitutional documents
of any such UK Group or Target Group member do not and could
not restrict or inhibit (whether absolutely, partly, under a
discretionary power or otherwise) any transfer of such
shares pursuant to enforcement of the Security Documents or
the Second Security Documents.
(iii) For the avoidance of doubt, the Security is intended to
secure all amounts outstanding under the Finance Documents
from time to time, including without
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limitation, all amounts made available by the Term Banks and
the Additional Finance Providers.
(x) Group Structure
Each of:
(i) the corporate structure of the UK Group and the NTL Holding
Group set out in the group structure chart delivered to the
Term Banks pursuant to sub-clause 2.5.2 (Initial Conditions
Precedent);
(ii) the corporate structure of the UK Group and the NTL Holding
Group set out in the Group Structure Chart delivered
pursuant to sub-clause 2.5.1 (Initial Conditions Precedent);
and
(iii) the corporate structure of the UK Group, the Target Group
and the NTL Holding Group set out in any Group Structure
Chart delivered to the Agent pursuant to Clause 22.30
(Revised Group Structure),
is true, complete and accurate, in each case as at the date of its
delivery to the Agent or, in the case of (i) above, to the Term Banks.
(y) Existing Group Indebtedness
(i) NTL UK owes no Financial Indebtedness to any other members
of the NTL Holding Group, other than NTL CC.
(ii) The Parent owes no Financial Indebtedness to any members of
the NTL Holding Group, other than NTL UK.
(z) UK Group Financial Statements
The unaudited consolidated financial statements of the UK Group which
were provided to the Term Banks prior to the Term Execution Date:
(i) were prepared in accordance with accounting principles
generally accepted in its jurisdiction of incorporation and
consistently applied;
(ii) disclose all material liabilities (contingent or otherwise)
and all material unrealised or anticipated losses of the UK
Group; and
(iii) save as disclosed therein, give a true and fair view of the
financial condition and operations of the UK Group during
the relevant period.
(aa) NTL Inc. Business Plan and Other Information
It:
(i) does not regard any of the forecasts or projections set out
in the NTL Inc. Business Plan as unreasonable or, to any
material extent, unattainable;
(ii) considers (having made all reasonable enquiries) the
assumptions upon which the forecasts and projections
contained in the NTL Inc. Business Plan are based to be fair
and reasonable in all material respects;
214
(iii) confirms that the factual information contained in all
written information supplied by any member of the Group or
its legal advisors to any Term Bank or its legal advisors in
connection herewith is true, complete and accurate in all
material respects, provided that this representation and
warranty shall not apply to any information provided by or
on behalf of any party outside the Group (including, for the
avoidance of doubt, the Business Plan and the Information
Memorandum).
(bb) No Default
No Event of Default or Potential Event of Default has occurred and is
continuing under this Agreement.
(cc) Circumstances at Term Execution Date
(i) Pushdown occurred on 21 February 2001 and each of the
Pre-Novation Borrower and the Post Novation Borrower are
members of the UK Group.
(ii) The syndication of the Revolving Facility has occurred.
(iii) As at the Term Execution Date, the only Security (apart from
that comprised in the guarantees provided pursuant to Clause
22.25 (Guarantors), Clause 24 (Guarantee and Indemnity) and
Clause 37 (Accession of Guarantors)) existing in relation to
the Revolving Facility comprises that granted pursuant to
the following documents:
(A) the Debenture dated 21 February 2001 between (1) the
Chargors (as listed and defined therein) and (2) the
Security Trustee;
(B) the Debenture dated 11 June 2001 between (1) NTL
Glasgow Holdings Limited and NTL Kirklees Holdings
Limited and (2) the Security Trustee;
(C) the Supplemental Mortgage dated 26 June 2001 between
(1) NTL Communication Services Limited and (2) the
Security Trustee in relation to Volvo House,
Southampton;
(D) the Indenture of Mortgage dated 21 February 2001
between (1) National Transcommunications Limited and
CableTel Northern Ireland Limited and (2) the
Security Trustee;
(E) the NTL CC Security Over Cash Agreement dated 22
December 2000 between (1) NTL CC and (2) the
Security Trustee;
(F) the NTL Security Over Cash Agreements dated 30 May
2000 and 5 October 2000 between (1) NTL Inc. and (2)
the Security Trustee;
(G) the NTL UK Intra-Group Loan Assignment dated 21
February 2001 between (1) NTL UK and (2) the
Security Trustee;
(H) the NTL UK Revolving Bank Subordination Agreement
dated 30 May 2000 between (1) NTL UK and (2) the
Security Trustee;
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(I) the Parent Intra-Group Loan Assignment dated 21
February 2001 between (1) the Parent and (2) the
Security Trustee;
(J) the Pledge Agreement dated 21 February 2001 between
(1) the Parties listed therein and (2) the Security
Trustee;
(K) the Security Agreement dated 21 February 2001
between (1) the Parties listed therein and (2) the
Security Trustee;
(L) the Share Charge Agreement dated 21 February 2001
between (1) the Parties listed therein and (2) the
Security Trustee;
(M) the Share Pledge dated 21 February 2001 between (1)
the Companies listed therein and (2) the Security
Trustee;
(N) the Standard Security dated 21 February 2001 between
(1) National Transcommunications Limited and (2) the
Security Trustee in respect of Blackhill, Duntilland
Road, Salsburgh, Shotts, North Lanarkshire;
(O) the Standard Security dated 21 February 2001 between
(1) National Transcommunications Limited and (2) the
Security Trustee in respect of Unit 3, Clocktower
Industrial Estate, South Gyle Crescent, Edinburgh;
and
(P) the Standard Security dated 12 April 2001 between
(1) CableTel (UK) Limited and (2) the Security
Trustee in respect of land and warehouse premises at
Glasgow Road/Hillington Road, Renfrew.
(dd) Entire Agreement True and complete copies or conformed
copies of all documents which together evidence the entire
agreement between the parties hereto in connection with this
Agreement on the Term Execution Date (other than the fee
letters mentioned in Clause 25.5 (Agency and Other Fees),
any documents which are signed by the Term Banks and, for
the avoidance of doubt, any documents which are no longer of
relevance or which amended Schedule 1 (The Banks) in
connection with the syndication of the Revolving Facility or
have been reflected in restatements of documents which have
been provided) have been provided to the Term Banks prior to
the Term Execution Date.
(ee) Principal Properties
Each Report on Title delivered to the Term Banks pursuant to
Clause 2.5 (Initial Conditions Precedent) is accurate in
respect of the issues to which it is stated to relate as at
the date of such Report on Title.
(C) Representations made on each date upon which a company
became a Guarantor after the First Restatement Amendment
Agreement but prior to the Second Restatement Amendment
Agreement
1. On each date on which a company became a Guarantor:
(a) the Parent made the representations and warranties referred
to at paragraph 1 of Section A (Representing Parties) of
this Part C; and
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(b) the company acceding as a Guarantor made the representations
and warranties at paragraph (a) (Status and Due
Authorisation), paragraph (c) (No Immunity), paragraph (f)
(Binding Obligations), paragraph (h) (No Material Defaults),
paragraph (i) (No Material Proceedings), paragraph (r)
(Execution of this Agreement), paragraph (v) (Intellectual
Property) and paragraph (w) (Security Interest) of Section B
(Representations) of this Part C
(D) Representations deemed to have been repeated after the First
Restatement Amendment Agreement.
The representations and warranties referred to at paragraph 1 of
Section (A) (Representing Parties) of this Part C were (to the extent
applicable) deemed to have been repeated by the Post Novation
Borrower (after the date on which it became a party hereto), CWC
Holdings (on and after the date on which it became a party hereto)
the Parent, the Obligors and New NTL on each date on which (a) an
Advance was made, (b) each Additional Finance Provider Accession
Date, and (c) a company became an Additional Obligor.
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APPENDIX A TO THE RESTATED CREDIT AGREEMENT
The Plan - Article 1 - Definitions, Rules of Interpretation
and Computation of Time
APPENDIX B TO THE RESTATED CREDIT AGREEMENT
Change of Control and Asset Disposition provisions of the
Exit Financing Indenture