<PAGE>
CONFORMED COPY
AGREEMENT
Dated 26th October 2000
(Euro)3,500,000,000
and
US$347,500,000 and 95,000,000
SENIOR SECURED CREDIT FACILITY
for
UPC DISTRIBUTION HOLDING B.V.
and
UPC FINANCING PARTNERSHIP
as Borrowers
arranged by
CHASE MANHATTAN plc
TD BANK EUROPE LIMITED
ABN AMRO BANK N.V.
BANK OF AMERICA INTERNATIONAL LIMITED
BNP PARIBAS
CIBC WORLD MARKETS plc
CREDIT LYONNAIS
FORTIS BANK (NEDERLAND) N.V.
and
THE ROYAL BANK OF SCOTLAND plc
with
TD BANK EUROPE LIMITED
and
TORONTO DOMINION (TEXAS), INC.,
acting as Facility Agents
ALLEN & OVERY
London
BK:801985.2
<PAGE>
<TABLE>
<CAPTION>
INDEX
Clause Page
<S> <C>
1. Interpretation........................................................ 1
2. The Facilities........................................................ 35
3. Purpose............................................................... 38
4. Conditions Precedent.................................................. 39
5. Advances.............................................................. 41
6. Repayment............................................................. 43
7. Cancellation and Prepayment........................................... 45
8. Interest.............................................................. 52
9. Payments.............................................................. 55
10. Tax Gross-up and Indemnities.......................................... 57
11. Market Disruption..................................................... 60
12. Increased Costs....................................................... 61
13. Illegality and Mitigation............................................. 62
14. Guarantee............................................................. 63
15. Representations and Warranties........................................ 66
16. Undertakings.......................................................... 73
17. Financial Covenants................................................... 93
18. Default............................................................... 100
19. Facility Agent, Security Agent, Lead Arrangers and Lenders............ 108
20. Fees.................................................................. 113
21. Expenses.............................................................. 114
22. Stamp Duties.......................................................... 115
23. Indemnities........................................................... 115
24. Evidence and Calculations............................................. 116
25. Amendments and Waivers................................................ 117
26. Changes to the Parties................................................ 118
27. Disclosure of Information............................................. 123
28. Set-off............................................................... 124
29. Pro Rata Sharing...................................................... 124
30. Severability.......................................................... 125
31. Counterparts.......................................................... 125
32. Notices............................................................... 126
33. Language.............................................................. 127
34. Jurisdiction.......................................................... 128
35. Waiver or Immunity.................................................... 129
36. Governing Law......................................................... 129
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedules
<S> <C>
1. Part I - Original Guarantors........................................... 130
Part II - Original Lenders and Commitments............................. 131
2. Conditions Precedent Documents......................................... 135
Part I - To be delivered before the First Advance...................... 135
Part II - To be delivered by an Additional Guarantor................... 138
3. Mandatory Cost Formulae................................................ 141
4. Form of Request and Cancellation Notice................................ 143
Part I - Form of Request............................................... 143
Part II - Form of Cancellation and/or Prepayment Notice................ 144
5. Forms of Accession Documents........................................... 146
Part I - Novation Certificate.......................................... 146
Part II - Guarantor Accession Agreement................................ 147
6. Form of LMA Confidentiality Undertaking................................ 148
7. Security Documents..................................................... 152
8. Relevant Security Interests............................................ 153
9. Relevant Financial Indebtedness........................................ 154
10. Borrower Group Structure............................................... 155
Part I - Borrower Group as at the Signing Date......................... 155
Part II - Borrower Group following Completion of the Restructuring..... 155
11. Material Contracts..................................................... 157
Part I - Interconnect Agreements....................................... 157
Part II - Shareholders' Agreements..................................... 163
12. Licences............................................................... 164
Signatories..................................................................... 205
</TABLE>
<PAGE>
THE AGREEMENT is dated 26th October, 2000 and made BETWEEN:
(1) UPC DISTRIBUTION HOLDING B.V. ("UPC Distribution");
(2) UPC FINANCING PARTNERSHIP, a general partnership formed under the laws of
Delaware, United States and, as of the Signing Date, with its principal
place of business at 4643 South Ulster Street, Suite 1300, Denver, Colorado
80237, USA (the "US Borrower");
(3) THE COMPANIES identified as guarantors in Part I of Schedule 1 (the
"Original Guarantors");
(4) CHASE MANHATTAN plc, TD BANK EUROPE LIMITED, ABN AMRO BANK N.V., BANK OF
AMERICA INTERNATIONAL LIMITED, BNP PARIBAS, CIBC WORLD MARKETS plc, CREDIT
LYONNAIS, FORTIS BANK (NEDERLAND) N.V., and THE ROYAL BANK OF SCOTLAND plc
as lead arrangers (in this capacity, the "Lead Arrangers");
(5) THE BANKS AND FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as
lenders (the "Original Lenders");
(6) TD BANK EUROPE LIMITED and TORONTO DOMINION (TEXAS), INC., as facility
agents; and
(7) TD BANK EUROPE LIMITED as security agent for the Finance Parties (in this
capacity, the "Security Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Accounting Period"
in relation to any person means any period of approximately three months or
one year for which accounts of such person are required to be delivered
pursuant to this Agreement.
"Acquisition"
means the acquisition (including, without limitation, by purchase,
subscription or otherwise) of all or any part of the share capital or
equivalent of any company or other person (including, without limitation,
any partnership or joint venture) or any asset or assets of any company or
other person (including, without limitation, any partnership or joint
venture) constituting a business or separate line of business of that
company or other person.
"Acquisition Cost"
means, in relation to an Acquisition, the value of the consideration for
that Acquisition at the time of completion of the Acquisition and for this
purpose:
<PAGE>
2
(a) the value at the time of completion of the Acquisition of any
consideration to be paid or delivered after the time of completion of
the Acquisition will be determined in accordance with GAAP (provided
that, for the purposes only of paragraph (c)(i) of the definition of
"Permitted Acquisition", paragraph (b)(i) of the definition of
"Permitted Joint Venture" and Clause 16.11(b)(ii) (Acquisitions and
mergers) and the definition of "Borrower Group Capitalisation" in
Clause 17.1 (Financial Definitions), the value of any such deferred
consideration shall only be included in the calculation of the
Acquisition Cost of an Acquisition at the time such deferred
consideration is paid or delivered);
(b) if the entity acquired becomes a member of the Borrower Group as a
result of the Acquisition, the aggregate principal amount of Financial
Indebtedness of any entity acquired outstanding at the time of
completion of the Acquisition (including without limitation any
Lending Transaction (as defined in Clause 16.14(g) (Loans and
guarantees) made by a member of the Borrower Group in connection with
the relevant Acquisition) will be counted as part of the consideration
for that Acquisition;
(c) if the entity acquired does not become a member of the Borrower Group
as a result of the Acquisition, the aggregate principal amount of
Financial Indebtedness of the entity acquired at the time of
completion of the Acquisition will be counted as part of the
consideration for that Acquisition to the extent of the aggregate
principal amount of the payment and repayment obligations in respect
of such Financial Indebtedness assumed or guaranteed by any member of
the Borrower Group; and
(d) subject to paragraphs (a), (b) and (c) above, the value of at the time
of completion of the Acquisition of any non-cash consideration will be
determined in accordance with GAAP,
expressed in euros, if required, using the Agent's Spot Rate of Exchange on
the date of completion of the Acquisition.
"Additional Guarantor"
means:
(a) a Subsidiary of UPC Distribution; and
(b) any UPC Distribution Holdco (other than UPC Holding),
which in each case becomes an Additional Guarantor in accordance with
Clause 26.4 (Additional Guarantors).
"Advance"
means a Facility A Advance, Facility B Advance or Facility C Advance.
"Affiliate"
means, in respect of a person, a direct or indirect Subsidiary or Holding
Company of that person or any other person which is under common control
with that person (and for this purpose, "control" has the meaning given to
it in section 416 of the Income and Corporation Taxes Act 1988 in force as
at the Signing Date).
<PAGE>
3
"Agent"
means the Facility Agent or the Security Agent (or both), as the context
requires.
"Agent's Spot Rate of Exchange"
means the spot rate of exchange as determined by the Facility Agent for the
purchase of the relevant Optional Currency in the London foreign exchange
market with euros or US Dollars (as applicable) at or about 11.00 a.m. on a
particular day.
"Anniversary"
means an anniversary of the Signing Date.
"Annualised EBITDA"
has the meaning given to it in Clause 17.1 (Financial definitions), save
where provided to the contrary in Clause 4.3(b) (Pro forma covenant
compliance).
"Approved Stock Options"
means any options, warrants, rights to purchase or other equivalents
(however designated) issued or granted by a member of the Borrower Group to
any former, present or future officers, consultants, directors and/or
employees of any member of the Borrower Group or its Associated Companies
to subscribe for share capital or similar rights of ownership in that
member of the Borrower Group provided that the maximum aggregate amount of
such options, warrants, rights to purchase or other equivalents (however
designated) shall not exceed (i) 8 per cent. of its issued share capital,
in the case of Stipdon and any Subsidiary of Stipdon (provided that the
aggregate amount of such options, warrants, rights to purchase or other
equivalents issued by Stipdon and its Subsidiaries does not exceed 8 per
cent. of the issued share capital of Stipdon) and (ii) 7.5 per cent. of its
issued share capital or similar rights of ownership, in the case of each
other member of the Borrower Group.
"Approved Transaction"
means the transactions announced by UPC and UGC on 26th June, 2000 and
described in UPC's Current Report on Form 8-K as filed with the US
Securities and Exchange Commission on 11th July, 2000 or one or a series of
related transactions resulting in the completion of the transactions so
described.
"Associated Company"
of a person means:
(a) any other person which is directly or indirectly Controlled by, under
common Control with or Controlling such person; or
(b) any other person owning beneficially and/or legally directly or
indirectly 10 per cent. or more of the equity interest in such person
or 10 per cent. of whose equity is owned beneficially and/or legally
directly or indirectly by such person.
<PAGE>
4
"Auditors"
means Arthur Andersen & Co. or such other leading firm of independent and
internationally recognised accountants appointed by UPC Distribution as its
auditors for the purposes of preparing the audited consolidated accounts of
UPC Distribution.
"Belmarken"
means Belmarken Holding B.V., a private limited liability company
incorporated under the laws of The Netherlands and, as of the Signing Date,
with its registered office at Amsterdam and its business office at Beech
Avenue 100, 1119 PW Schiphol Rijk, Postbus 74763, 1070 BT Amsterdam, The
Netherlands.
"Beneficiaries"
has the meaning given to it in the Security Deed.
"Borrower"
means each of UPC Distribution and the US Borrower.
"Borrower Group"
means:
(a) before the completion of the Restructuring, the Obligors (other than
UPC Distribution Holdco and UPC Holding II) and their respective
Subsidiaries from time to time; and
(b) on and following completion of the Restructuring (other than the
Romania Restructuring), UPC Distribution and its Subsidiaries from
time to time,
excluding, in each case, Unrestricted Subsidiaries, but including, in each
case, the US Borrower.
"Break Costs"
means the amount (if any) by which:
(a) the amount of interest (excluding the Margin and any Mandatory Costs)
which a Lender should have received for the period from the date of
receipt of all or any part of its participation in an Advance or
Unpaid Sum to the last day of the current Interest Period in respect
of that Advance or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest Period,
exceeds:
(b) the amount of interest which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum received
by it on deposit with a leading bank in the London interbank market
for a period starting on the Business Day following receipt or
recovery and ending on the last day of the current Interest Period.
<PAGE>
5
"Business"
means any business of the Borrower Group:
(a) that consists of the upgrade, construction, creation, development,
marketing, acquisition (to the extent permitted under this Agreement),
operation, utilisation and maintenance of networks that use existing
or future technology for the transmission, reception and delivery of
voice, video and/or other data (including networks that transmit,
receive and/or deliver services such as multi-channel television and
radio, programming, telephony, Internet services and content, high-
speed data transmission, video, multi-media and related activities);
or
(b) that supports, is incidental to or is related to any such business; or
(c) that comprises being a Holding Company of one or more persons engaged
in such business,
and references to "business" or "ordinary course of business" shall be
similarly construed.
"Business Day"
means:
(a) a day (other than a Saturday or Sunday) on which banks are open for
general business in:
(i) London and Amsterdam;
(ii) in relation to a transaction involving US Dollars, New York;
and
(iii) in relation to a transaction involving an Optional Currency,
the principal financial centre of the country of that Optional
Currency; or
(b) in relation to a rate fixing day or a payment date for euros, a TARGET
Day.
"Cancellation Notice"
means a notice of cancellation and/or prepayment substantially in the form
of Part II of Schedule 4.
"Capital Expenditure"
means any expenditure which is or will be treated as a capital expenditure
in the audited consolidated financial statements of the Borrower Group in
accordance with GAAP.
"Change of Control"
has the meaning given to it in Clause 7.4(a) (Change of Control).
"CNA"
means Cable Networks Austria Holding B.V., a private limited liability
company incorporated under the laws of The Netherlands and, as of the
Signing Date, with its
<PAGE>
6
registered office at Amsterdam and its business office at Beech Avenue 100,
1119 PW Schiphol Rijk, Postbus 74763, 1070 BT Amsterdam, The Netherlands.
"Code"
means the United States Internal Revenue Code of 1986, as amended and any
rule or regulation issued thereunder from time to time in effect.
"Commitments"
means the Facility A Commitments, Facility B Commitments and/or Facility C
Commitments.
"Confidentiality Undertaking"
means a confidentiality undertaking substantially in the recommended form
of the LMA as set out in Schedule 6 (Form of LMA Confidentiality
Undertaking) or in any other form agreed between UPC Distribution and the
Facility Agent.
"Consultant"
means Booz Allen & Hamilton.
"Consultant's Report"
means the report dated on or about July, 2000 from the Consultant addressed
to Chase Manhattan plc and TD Securities in relation to the 10 year
business plan of UPC Distribution.
"Control"
means the power of a person:
(a) by means of the holding of shares or the possession of voting power in
or in relation to any other person; or
(b) by virtue of any powers conferred by the articles of association or
other documents regulating any other person,
to direct or cause the direction of the management and policies of that
other person,
and "Controlled" and "Controlling" have a corresponding meaning.
"Current Assets"
means, at any relevant time, the aggregate of the current assets (excluding
cash) of the Borrower Group at such time which would be included as current
assets in a consolidated balance sheet of the Borrower Group drawn up at
such time in accordance with GAAP.
"Current Liabilities"
means, at any relevant time, the aggregate of the current liabilities
(excluding short term debt and overdrafts) of the Borrower Group at such
time which would be included as current liabilities in a consolidated
balance sheet of the Borrower Group drawn up at each time in accordance
with GAAP.
<PAGE>
7
"Dangerous Substance"
means any radioactive emissions and any natural or artificial substance
(whether in solid or liquid form or in the form of a gas or vapour and
whether alone or in combination with any other substance) which, taking
into account the concentrations and quantities present and the manner in
which it is being used or handled, it is reasonably foreseeable will cause
harm to man or any other living organism or damage to the Environment
including any controlled, special, hazardous, toxic, radioactive or
dangerous waste.
"Default"
means an Event of Default or any event or circumstances specified in Clause
18 (Default) which would (with the expiry of a grace period or the giving
of notice) be an Event of Default.
"Distribution Business"
means:
(a) the business of upgrading, constructing, creating, developing,
acquiring, operating, owning, leasing and maintaining cable television
networks (including for avoidance of doubt master antenna television,
satellite master antenna television, single and multi-channel
microwave single or multi-point distribution systems and direct-to-
home satellite systems) for the transmission, reception and/or
delivery of multi-channel television and radio programming, telephony
and internet and/or data services to the residential markets; or
(b) any business which is incidental to or related to and, in either case,
material to such business.
"Eastern Europe"
means Europe other than Western Europe.
"Eastern European Acquisition"
means an acquisition (including, without limitation, by purchase,
subscription or otherwise) of:
(a) all or any part of the share capital or equivalent of a person or
company (including, without limitation any partnership or joint
venture) incorporated or carrying on a material part of its business
in Eastern Europe; or
(b) any asset or assets constituting a business or separate line of
business, a material part of which is being carried on in Eastern
Europe,
but excluding any such Acquisition in relation to an entity which is a
Subsidiary of UPC on the Signing Date and is incorporated or carries on
business in Poland on the Signing Date.
"EBITDA"
has the meaning given to it in Clause 17.1 (Financial definitions).
<PAGE>
8
"Environment"
means the media of air, water and land (wherever occurring) and in relation
to the media of air and water includes, without limitation, the air and
water within buildings and the air and water within other natural or man-
made structures above or below ground and any water contained in any
underground strata.
"Environmental Claim"
means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by that
person as a result of or in connection with any violation of
Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that could give rise to any remedy or penalty
(whether interim or final) that may be enforced or assessed by private
or public legal action or administrative order or proceedings
including, without limitation, any such claim that arises from injury
to persons or property.
"Environmental Contamination"
means each of the following and their consequences:
(a) any release, emission, leakage or spillage of any Dangerous Substance
at or from any site owned or occupied by any member of the Borrower
Group into any part of the Environment; or
(b) any accident, fire, explosion or sudden event at any site owned or
occupied by any member of the Borrower Group which is directly caused
by or attributable to any Dangerous Substance; or
(c) any other pollution of the Environment arising at or from any site
owned or occupied by any member of the Borrower Group.
"Environmental Law"
means all legislation, regulations or orders (insofar as such regulations
or orders have the force of law) to the extent that it relates to the
protection or impairment of the Environment or the control of Dangerous
Substances (whether or not in force at the date of this Agreement) which
are capable of enforcement in any applicable jurisdiction by legal process.
"Environmental Licence"
means any permit, licence, authorisation, consent, filing, registration or
other approval required by any Environmental Law.
"ERISA"
means the United States Employee Retirement Income Security Act of 1974, as
amended.
<PAGE>
9
"ERISA Affiliate"
means each trade or business, whether or not incorporated, that would be
treated as a single employer with any member of the Borrower Group under
section 414 of the United States Internal Revenue Code of 1986, as amended.
When any provision of this Agreement relates to a past event, the term
"ERISA Affiliate" includes any person that was an ERISA Affiliate of a
member of the Borrower Group at the time of that past event.
"EURIBOR"
means in relation to any Advance or Unpaid Sum denominated in euros:
(a) the applicable Screen Rate for deposits in the currency of the
relevant Advance or Unpaid Sum for a period equal or comparable to the
required period at or about 11.00 a.m. (Brussels time) on the
applicable Rate Fixing Day; or
(b) if the rate cannot be determined under paragraph (a) above, the
arithmetic mean (rounded upwards, if necessary, to the nearest four
decimal places) of the respective rates, as supplied to the Facility
Agent at its request, quoted by the Reference Banks to leading banks
for the offering of deposits in euros for the required period in the
London interbank market at or about 11.00 a.m. on the Rate Fixing Day
for such period,
and for the purposes of this definition, "required period" means the
Interest Period of an Advance or the period in respect of which EURIBOR
falls to be determined in relation to any Unpaid Sum.
"E", "euro" or "euros"
means the single currency of the Participating Member States.
"Event of Default"
means an event specified as such in Clause 18 (Default).
"Excess Cash Flow"
means the aggregate consolidated EBITDA of the Borrower Group calculated
for the most recently ended financial year (beginning with the financial
year ending on 31st December, 2004), as shown in the quarterly management
accounts delivered to the Facility Agent pursuant to Clause 16.2(b)
(Financial information) in respect of the financial quarter ending on 31st
December in any relevant year:
(a) less:
(i) any interest and other charges in respect of Financial
Indebtedness of the Borrower Group paid during such financial
year;
(ii) repayments and/or prepayments of any Financial Indebtedness of
the Borrower Group paid during such financial year; and
(iii) capital expenditure of the Borrower Group incurred during such
financial year; and
<PAGE>
10
(b) either (A) plus any amount by which Net Working Capital at the
commencement of such financial year exceeds Net Working Capital at the
close of such financial year or, as appropriate, (B) minus any amount
by which Net Working Capital at the end of such financial year exceeds
Net Working Capital at the beginning of such financial year.
For the purposes of this definition of "Excess Cash Flow", "Net Working
Capital" means, at any time, the aggregate of the Current Assets of the
Borrower Group at such time less the aggregate of the Current Liabilities
of the Borrower Group at such time.
"Facility"
means each of Facility A, Facility B and Facility C.
"Facility A"
means the (Euro)750,000,000 revolving credit facility referred to in Clause
2.1(a) (Facilities).
"Facility A Advance"
means an advance made to UPC Distribution under Facility A.
"Facility A Availability Period"
means the period from and including the Signing Date up to and including
the Facility A Final Maturity Date or such earlier date on which the Total
Facility A Commitments have been cancelled in full or such later date as
all the Lenders may agree in writing.
"Facility A Commitment"
means:
(a) in relation to an Original Lender, the amount in euros set opposite
its name under the heading "Facility A Commitment" in Part II of
Schedule 1 (Original Lenders and Commitments) and the amount of any
other Facility A Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in euros of any Facility A
Commitment transferred to it in accordance with this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility A Final Maturity Date"
means 30th June, 2008 or, if that day is not a Business Day, the preceding
Business Day.
"Facility A Lender"
means a Lender under Facility A.
"Facility Agent"
means:
<PAGE>
11
(a) TD Bank Europe Limited in its capacity as facility agent under or in
connection with Facility A, Facility B or Facility C1;
(b) Toronto Dominion (Texas), Inc., in its capacity as facility agent
under or in connection with Facility C2; or
(c) both,
in each case as the context requires; provided that references in this
Agreement to "Facility Agent" which do not relate solely and specifically
to Facility C2 shall be deemed to refer to TD Bank Europe Limited in its
capacity as facility agent under or in connection with the Facility.
"Facility B"
means the (Euro)2,750,000,000 term loan facility referred to in Clause
2.1(b) (Facilities).
"Facility B Advance"
means an advance made to UPC Distribution under Facility B.
"Facility B Availability Period"
means the period from and including the Signing Date up to and including
31st December, 2003 or such earlier date on which the Total Facility B
Commitments have been cancelled in full or such later date as all the
Lenders may agree in writing.
"Facility B Commitment"
means:
(a) in relation to an Original Lender, the amount in euros set opposite
its name under the heading "Facility B Commitment" in Part II of
Schedule 1 (Original Lenders and Commitments) and the amount of any
other Facility B Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in euros of any Facility B
Commitment transferred to it in accordance with this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B Lender"
means a Lender under Facility B.
"Facility C"
means the US$347,500,000 and (Euro)95,000,000 term loan facility referred
to in Clause 2.1(c) (Facilities).
"Facility C Advance"
means a Facility C1 Advance or a Facility C2 Advance.
<PAGE>
12
"Facility C1"
means the (Euro)95,000,000 term loan facility which forms a sub-tranche of
Facility C.
"Facility C1 Advance"
means a euro-denominated advance made to UPC Distribution under Facility C.
"Facility C2"
means the US$347,500,000 term loan facility which forms a sub-tranche of
Facility C.
"Facility C2 Advance"
means a US Dollar-denominated advance made to the US Borrower under
Facility C.
"Facility C Availability Period"
means the period from and including the Signing Date up to and including
the earlier of:
(a) the first Utilisation Date under the Facilities; or
(b) the date falling 30 days after the Signing Date,
or such earlier date on which the Total Facility C Commitments have been
cancelled in full or such later date as all the Lenders may agree in
writing.
"Facility C Commitment"
means, in relation to a Lender, the aggregate for the time being of its:
(a) Facility C1 Commitments; and
(b) Facility C2 Commitments (translated into euros on the basis of:
(i) (if and to the extent that any member of the Borrower Group has
entered into any currency Senior Hedging Agreement(s) in respect
of a Facility C2 Advance) the rate at which any such Facility C2
Advance was swapped into euros; and
(ii) to the extent the Borrower Group has not entered into any
currency Senior Hedging Agreements in relation to Facility C2
Advances or the Facility C2 Commitments are undrawn, the Agent's
Spot Rate of Exchange on the Utilisation Date).
"Facility C1 Commitment"
means:
(a) in relation to an Original Lender, the amount in euros set opposite
its name under the heading "Facility C1 Commitment" in Part II of
Schedule 1 (Original Lenders and Commitments) and the amount of any
other Facility C1 Commitment transferred to it under this Agreement;
and
<PAGE>
13
(b) in relation to any other Lender, the amount in euros of any Facility
C1 Commitment transferred to it in accordance with this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility C2 Commitment"
means:
(a) in relation to an Original Lender, the amount in US Dollars set
opposite its name under the heading "Facility C2 Commitment" in Part
II of Schedule 1 (Original Lenders and Commitments) and the amount of
any other Facility C2 Commitment transferred to it under this
Agreement; and
(b) in relation to any other Lender, the amount in US Dollars of any
Facility C2 Commitment transferred to it in accordance with this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility C Lender"
means a Lender under Facility C.
"Facility Office"
means the office(s) notified by a Lender to the Facility Agent:
(a) on or before the date it becomes a Lender; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"Facility Outstandings"
has the meaning given to it in Clause 4.3(b) (Pro forma covenant
compliance).
"Fee Letter"
means each of:
(a) the letter between Chase Manhattan plc, TD Bank Europe Limited, Cable
Networks Netherlands Holding B.V. and UPC dated 24th May, 2000 dealing
with underwriting fees; and
(b) the letter between the Facility Agent and the Borrowers dated on or
about the Signing Date dealing with agency fees,
in each case setting out the amount of various fees referred to in Clause
20 (Fees).
<PAGE>
14
"Final Repayment Date"
means:
(a) when designated "Facility B", 30th June, 2008; and
(b) when designated "Facility C", 31st March, 2009,
or in each case, if that day is not a Business Day, the preceding Business
Day (and without any such designation means the Facility B Final Repayment
Date or the Facility C Final Repayment Date, as applicable).
"Finance Document"
means this Agreement, a Security Document, the Security Deed, a Fee Letter,
a Guarantor Accession Agreement, the Syndication Letter, a Novation
Certificate, and any other document designated in writing as such by the
Facility Agent and UPC Distribution.
"Finance Party"
means a Lead Arranger, a Lender, the Facility Agent or the Security Agent.
"Finance Period"
means the period from the date of this Agreement until the date on which
none of the Beneficiaries and the Obligors has any actual or contingent
obligations (other than indemnities which survive repayment and termination
of this Agreement and the Security Documents) under this Agreement or the
Security Documents.
"Financial Indebtedness"
means, without double counting, indebtedness in respect of:
(a) money borrowed or raised and debit balances at banks;
(b) any bond, note, loan stock, debenture or similar debt instrument;
(c) acceptance or documentary credit facilities;
(d) receivables sold or discounted (otherwise than on a non-recourse basis
and other than in the normal course of business for collection);
(e) payments for assets acquired or services supplied deferred for a
period of over 180 days (or 360 days if such deferral is in accordance
with the terms pursuant to which the relevant assets were or are to be
acquired or services were or are to be supplied) after the relevant
assets were or are to be acquired or the relevant services were or are
to be supplied;
(f) finance leases and hire purchase contracts to the extent that they
constitute capital leases within the meaning of GAAP, provided that
indebtedness in respect of network leases shall only be included in
this paragraph (f) for the purposes of the definition of "Excess Cash
Flow" and Clause 18.5 (Cross default);
<PAGE>
15
(g) any other transaction (including without limitation forward sale or
purchase agreements) having the commercial effect of a borrowing or
raising of money or any of (b) to (f) above;
(h) (for the purposes of Clause 18.5 (Cross default) only) any derivative
transaction entered into in connection with protection against or
benefit from fluctuation in any rate or price (and, when calculating
the value of any derivative transaction, only the marked-to-market
value shall be taken into account); and
(i) guarantees in respect of indebtedness of any person falling within any
of paragraphs (a) to (g) above (including for the avoidance of doubt,
without double counting, guarantees given by a member of the Borrower
Group for the indebtedness of the type falling within (a) to (g) above
of another member of the Borrower Group),
provided that indebtedness which has been cash-collateralised shall not be
included in any calculation of Financial Indebtedness to the extent so
cash-collateralised and indebtedness which is in the nature of equity
(other than redeemable shares) shall not be regarded as Financial
Indebtedness.
"GAAP"
means generally accepted accounting principles and practices in the United
States.
"Guaranteed Document"
means each Finance Document, the High Yield Hedging Agreements and the
Senior Hedging Agreements.
"Guarantor"
means each Original Guarantor and each Additional Guarantor.
"Guarantor Accession Agreement"
means a deed in the form of Part II of Schedule 5, with such amendments as
the Facility Agent may approve or reasonably require (including, without
limitation, any limitation on the obligations of the relevant Additional
Guarantor which has been approved by the Facility Agent pursuant to Clause
26.4 (a) (v) (Additional Guarantors).
"High Yield Hedging Agreements"
has the meaning given to it in the Security Deed.
"High Yield Hedging Bank"
means a Lender or its Affiliate which is or becomes a party to the Security
Deed as a High Yield Hedging Bank.
<PAGE>
16
"High Yield Notes"
means the high yield debt securities issued by UPC pursuant to:
(a) the indenture dated as of 30th July, 1999 between UPC and Citibank
N.A. in relation to US$735,000,000 12 1/2 per cent. senior discount
notes due 2009; and
(b) the indenture dated 30th July, 1999 between UPC and Citibank for the
$800,000,000 10 per cent. senior notes due 2009 and the (Euro)
300,000,000 10 per cent. senior notes due 2009.
"Holding Company"
means, in relation to a person, an entity of which that person is a
Subsidiary.
"Indentures"
means each of:
(a) the indenture dated as of 30th July, 1999 between UPC and Citibank
N.A. in relation to US$735,000,000 12 1/2 per cent. senior discount
notes due 2009;
(b) the indenture dated 5th February, 1998 between UGC and Firstar Bank of
Minnesota N.A. (the "UGC Trustee") for the $1,375,000,000 10 3/4 per
cent. senior secured discount notes due 2009;
(c) the indenture dated 15th April, 1999 between UGC and the UGC Trustee
for the $355,000,000 senior discount notes due 2009;
(d) the indenture dated 30th July, 1999 between UPC and Citibank N.A. for
the $800,000,000 10 7/8 per cent. senior notes due 2009 and the (Euro)
300,000,000 10 7/8 per cent. senior notes due 2009;
(e) the indenture dated 29th October, 1999 between UPC and Citibank N.A.
for the $200,000,000 10 7/8 per cent. senior notes due 2007 and the
(Euro) 100,000,000 10 7/8 per cent. senior notes due 2007;
(f) the indenture dated 29th October, 1999 between UPC and Citibank N.A.
for the $252,000,000 11 1/4 per cent. senior notes due 2009 and the
(Euro) 101,000,000 11 1/4 per cent. senior notes due 2009;
(g) the indenture dated 29th October, 1999 between UPC and Citibank N.A.
for the $478,000,000 13 3/8 per cent. senior discount notes due 2009
and the (Euro) 191,000,000 13 3/8 per cent. senior discount notes due
2009;
(h) the indenture dated 20th January, 2000 between UPC and Citibank N.A.
for the $300,000,000 11 1/2 per cent. senior notes due 2010;
(i) the indenture dated 20th January, 2000 between UPC and Citibank N.A.
for $600,000,000 11 1/4 per cent. senior notes due 2010 and the
(Euro) 200,000,000 11 1/4 per cent. senior notes due 2010; and
<PAGE>
17
(j) the indenture dated 20th January, 2000 between UPC and Citibank N.A.
for the $1,000,000,000 13 3/4 per cent. senior discount notes due
2010.
"Information Memorandum"
means the information memorandum dated June, 2000 as updated by the
information memorandum dated July, 2000 prepared in connection with
syndication of the Facilities, and as further updated, if applicable, by an
information memorandum to be prepared prior to the end of the Syndication
Period for the purposes of general syndication of the Facilities.
"Intellectual Property Rights"
means all know-how, patents, trade marks, designs and design rights,
trading names, copyrights (including any copyright in computer software),
database rights and other intellectual property rights anywhere in the
world (in each case whether registered or not and including all
applications for the same).
"Interconnect Agreements"
means the agreements listed in Part I of Schedule 11 and any interconnect
agreements maintained pursuant to Clause 16.20 (Inter-connection and
chello).
"Interest"
has the meaning given to it in Clause 17.1 (Financial definitions).
"Interest Date"
means the last day of an Interest Period.
"Interest Period"
means each period determined in accordance with Clause 8 (Interest).
"Lender"
means:
(a) any Original Lender; and
(b) any person which has become a New Lender (as defined in Clause 26.2
(Transfers by Lenders)) in accordance with Clause 26 (Changes to the
Parties),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
<PAGE>
18
"LIBOR"
means in relation to any Advance or Unpaid Sum denominated in US Dollars or
in an Optional Currency (other than euros):
(a) the applicable Screen Rate for deposits in the currency of the
relevant Advance or Unpaid Sum for a period equal or comparable to the
required period at or about 11.00 a.m. on the applicable Rate Fixing
Day;
(b) in the case of one or more Advances in an Optional Currency (other
than US Dollars) with the same Utilisation Date in an aggregate amount
exceeding an Original Euro Amount of (Euro) 500,000,000, the higher
of:
(i) the rate referred to in paragraph (a) above; and
(ii) the arithmetic mean (rounded upwards, if necessary, to the
nearest four decimal places) of the respective rates, as supplied
to the Facility Agent at its request, quoted by the Reference
Banks to leading banks for the offering of deposits in the
required currency and for the required period in the London
interbank market at or about 11.00 a.m. on the Rate Fixing Day
for such period; or
(c) if the rate cannot be determined under paragraph (a) above for the
purposes of paragraphs (a) or (b) above, the rate determined in
accordance with paragraph (b)(ii) above,
and for the purposes of this definition, "required period" means the
applicable Interest Period of an Advance or the period in respect of which
LIBOR falls to be determined in relation to any Unpaid Sum.
"Licence"
means each of those licences and registrations in respect of any member of
the Borrower Group set out in Schedule 12 and any licence or registration
issued by way of renewal, replacement, amendment or re-issue of any such
licence pursuant to any Telecommunications and Cable Law.
"LMA"
means the Loan Market Association.
"Majority Facility C Lenders"
means, at any time Lenders the aggregate of whose undrawn Facility C
Commitments and participations in outstanding Facility C Advances
(calculated by reference to the Original Euro Amount of such Advances)
exceeds 66 2/3 per cent. of the undrawn Total Facility C Commitments and
the Original Euro Amount of outstanding Facility C Advances.
"Majority Lenders"
means, at any time Lenders the aggregate of whose undrawn Facility A
Commitments, undrawn Facility B Commitments and undrawn Facility C
Commitments and participations in outstanding Facility A Advances, Facility
B Advances and Facility C Advances (calculated
<PAGE>
19
by reference to the Original Euro Amount of such Advances) exceeds 66 2/3
per cent. of the aggregate undrawn Total Facility A Commitments, undrawn
Total Facility B Commitments, undrawn Total Facility C Commitments and the
Original Euro Amount of outstanding Advances.
"Management Fees"
means any management, consultancy or similar fees payable by any member of
the Borrower Group to any Restricted Person.
"Mandatory Cost"
means the percentage rate per annum calculated by the Facility Agent in
accordance with Schedule 3 (Mandatory Cost Formulae).
"Margin"
means, in relation to an Advance at any time, the percentage rate per annum
determined to be the Margin applicable to that Advance in accordance with
Clause 8.10 (Margin).
"Material Adverse Effect"
means any event or circumstance which has a material adverse effect on the
ability of the Obligors (taken as a whole) to perform their payment or
other material obligations under any of the Finance Documents.
"Material Contracts"
means the Interconnect Agreements and the Shareholders' Agreements as from
time to time amended, varied, restated or replaced, in each case in a
manner that does not constitute an Event of Default under Clause 18.18
(Material Contracts).
"Material Subsidiary"
means any Subsidiary of UPC Distribution which accounts for more than five
per cent. of one or more of:
(a) the book value of the consolidated assets of the Borrower Group; or
(b) the consolidated revenues of the Borrower Group; or
(c) consolidated EBITDA of the Borrower Group,
all as shown in the financial statements most recently delivered under
Clause 16.2(a) or (b) (Financial information) (except that for purposes of
determining the consolidated revenues and consolidated EBITDA of the
Borrower Group in respect of the financial statements delivered under
Clause 16.2(b) (Financial information), the respective amounts of such
revenues and such EBITDA shall equal two times the consolidated revenues
and consolidated EBITDA, respectively, of the Borrower Group during the
relevant Ratio Period ending on the date to which such financial statements
are prepared).
If a Subsidiary which is not a Material Subsidiary on the basis of the most
recent such financial statements most recently delivered receives on any
date (the "Relevant Date") a
<PAGE>
20
transfer of assets or the right to receive any revenues or other earnings
which, taken together with the existing assets or, as the case may be,
revenues or earnings of that Subsidiary, would satisfy either of the tests
in paragraphs (a), (b) or (c) above, then that Subsidiary shall also be a
Material Subsidiary on and from the Relevant Date. If a Material Subsidiary
disposes of any assets or the right to receive any revenues or earnings
such that it would on the basis of the most recent such financial
statements most recently delivered cease to be a Material Subsidiary, then
it shall be excluded as a Material Subsidiary on and from the date it makes
such disposal.
"Necessary Authorisations"
means all material approvals, consents, authorisations and licences (other
than the Licences) from, all rights granted by and all filings,
registrations and agreements with, any government or other regulatory
authority necessary in order to enable each member of the Borrower Group to
carry on its business as may be permitted by the terms of this Agreement as
carried on by it at the relevant time.
"Net Proceeds"
means the aggregate cash (or cash equivalent) proceeds received by any
member of the Borrower Group in consideration for or otherwise in respect
of a relevant disposal, net of all Taxes applicable on, or to any gain
resulting from, that disposal and of all reasonable costs, fees and
expenses properly incurred by continuing members of the Borrower Group in
arranging and effecting that disposal.
"Network"
means the networks operated from time to time by any member of the Borrower
Group pursuant to the Licences and in accordance with this Agreement.
"non-Distribution Business Assets"
has the meaning given to it in Clause 16.10(b)(x)(Disposals).
"Norwegian Kroner"
means the lawful currency of Norway for the time being.
"Novation Certificate"
has the meaning given to it in Clause 26.3(a)(i) (Procedure for novations).
"Obligor"
means a Borrower or a Guarantor including, for the purposes of Clause 18
(Default), any Subsidiary of UPC Distribution that is required to become a
Guarantor under Clause 26.4 (Additional Guarantors) but has not yet become
a Guarantor.
"Obligor Pledge of Shareholder Loans"
means the deed of pledge of shareholder loans to be entered into between
certain Obligors and the Security Agent in the agreed form as described in
paragraph 3(i) of Schedule 7 (Security Documents) and any other deed of
pledge of shareholder loans in substantially the same form
<PAGE>
21
entered into by an Obligor pursuant to any such deed of pledge or Clauses
16.14(a) (Loans and guarantees) or 26.4 (Additional Guarantors).
"Obligors' Framework Agreement"
means the Framework Agreement (as defined in any Obligor Pledge of
Shareholder Loans).
"Optional Currency"
means Norwegian Kroner, Swedish Kroner or any other currency readily
available in the amount required and freely convertible into euros in the
European interbank market on the relevant Rate Fixing Day and the relevant
Utilisation Date and approved by the Facility Agent (acting on the
instructions of all the Facility A Lenders and Facility B Lenders) on or
prior to receipt by the Facility Agent of the relevant Request for a
Facility A Advance or Facility B Advance denominated in that currency.
"Original Borrower Group Financial Statements"
means the financial statements of the Borrower Group for the Accounting
Period ended 31st March, 2000 (comprising the unaudited compiled financial
statements of each of the Obligors for the Accounting Period ended 31st
March, 2000 and a combination of those financial statements).
"Original Euro Amount"
means:
(a) the principal amount of a Facility A Advance, Facility B Advance or
Facility C Advance (as applicable) denominated in euros; or
(b) the principal amount of a Facility A Advance, Facility B Advance or
Facility C Advance (as applicable) denominated in any other currency,
translated into euros on the basis of the Agent's Spot Rate of
Exchange on the date of receipt by the Facility Agent of the Request
for the relevant Advance (in the case of a Facility A Advance or a
Facility B Advance) or on the Utilisation Date (in the case of a
Facility C2 Advance).
"Participating Member State"
means a member state of the European Community that adopts the euro as its
currency in accordance with legislation of the European Union relating to
Economic and Monetary Union.
"Party"
means a party to this Agreement.
"Permitted Acquisition"
means:
(a) any Acquisition pursuant to the Restructuring;
<PAGE>
22
(b) any Acquisition of a member of the Borrower Group by any other member
of the Borrower Group as part of the solvent reorganisation of the
Borrower Group and any Acquisition of a person referred to in the
definition of "Romania Restructuring" in connection with the Romania
Restructuring; or
(c) any Acquisition where, upon completion of the Acquisition, the person
acquired will be a Subsidiary of UPC Distribution or where UPC
Distribution or one of its Subsidiaries which is a member of the
Borrower Group will own directly or indirectly greater than a 50 per
cent. interest in the asset or assets constituting the acquired
business (a "Majority Acquisition") and where:
(i) the Acquisition Cost of that Majority Acquisition, when
aggregated with the Acquisition Cost of all Majority Acquisitions
made since the Signing Date, but deducting:
(A) the amount of any such Acquisition Cost which has been
directly or indirectly funded (whether before, at or after
the time of completion of the Acquisition) by the proceeds
of equity subscribed in UPC Distribution or one or more of
its Subsidiaries which is a member of the Borrower Group (in
each case other than by another member of the Borrower
Group) or the proceeds of Subordinated Shareholder Loans
(including, without limitation, the proceeds of any such
equity subscription or Subordinated Shareholder Loan which
are provided to refinance any such equity subscription or
Subordinated Shareholder Loans previously provided), in each
case to the extent such proceeds have not been repaid or
prepaid or redeemed in accordance with Clause 16.13
(Restricted Payments);
(B) the Acquisition Cost of all such Majority Acquisitions of
any entity in which a member of the Borrower Group has an
ownership interest at the Signing Date or will have an
ownership interest pursuant to the Restructuring;
(C) the Acquisition Cost of any Acquisition constituting a
Majority Acquisition made pursuant to paragraph (a) or (b)
above; and
(D) the Acquisition Cost of the Acquisition of one or more cable
television networks in the Netherlands, as disclosed in
writing to the Facility Agent before the Signing Date,
and/or any business which is incidental or related thereto,
in an aggregate amount that does not exceed 60,000,000,
does not exceed:
(1) (except in the case of an Eastern European Acquisition)
(Euro) 500,000,000; or
(2) in the case of an Eastern European Acquisition, the amount
set out in column 2 below set opposite the range set out in
column 1 below into which the ratio of Senior Debt to
Annualised EBITDA, as shown in the most recent financial
statements delivered under Clause 16.2(b) (Financial
information) falls:
<PAGE>
23
<TABLE>
<S> <C>
(1) (2)
Senior Debt/Annualised Aggregate Acquisition Cost Limit
EBITDA ratio (EURO)
*4.5:1 250,000,000
*3.0:1 but **4.5:1 350,000,000
**3.0:1 500,000,000; and
</TABLE>
(ii) if the higher of the Acquisition Cost and the book value of any
Majority Acquisition (or, where an opinion confirming the
fairness of the relevant Majority Acquisition from a financial
point of view has been issued by an independent third party,
the Acquisition Cost of any Majority Acquisition):
(A) is greater than (Euro) 200,000,000 and no more than
(Euro)350,000,000, UPC Distribution delivers a certificate
to the Facility Agent signed by two managing directors or
the sole managing director, as the case may be, of UPC
Distribution and certifying; or
(B) is greater than (Euro) 350,000,000, UPC Distribution
delivers to the Facility Agent financial projections based
on assumptions which are no more aggressive (when taken as
a whole) than those used in the preparation of the
Information Memorandum which demonstrate,
that the Borrowers will be in compliance with Clause 6
(Repayment) and the undertakings set out in Clause 17
(Financial Covenants) for the period from completion of the
Acquisition (taking into account the Acquisition Cost of such
Majority Acquisition (but deducting from that Acquisition Cost
the value of any consideration referred to in paragraph (a) of
the definition of "Acquisition Cost") and financial projections
relating to the acquired business or asset(s)) to the last
Final Repayment Date;
(iii) the business of the acquired entity or the business acquired,
as the case may be, is of the same nature as the business of
the Borrower Group as at the Signing Date and is carried out
principally in Europe; and
(iv) no Default has occurred and is continuing or would be caused by
the Majority Acquisition.
"Permitted Business"
means the carrying on of the Business in Europe.
"Permitted Financial Indebtedness"
has the meaning given to it in Clause 16.12(b) (Restrictions on Financial
Indebtedness).
"Permitted Joint Venture"
means:
(a) any Acquisition referred to in paragraph (a) or (b) of the definition
of "Permitted Acquisition" and any Acquisition as a result of a
reorganisation of a person that is not a Subsidiary of UPC
Distribution but in which a member of the Borrower Group has
* more than
** less than or equal to
<PAGE>
24
an interest, provided that such reorganisation does not result in an
overall increase in the value of the Borrower Group's interest in that
person, other than adjustments to the basis of any member of the
Borrower Group's interest in accordance with GAAP; or
(b) any Acquisition where, upon completion of the Acquisition, the person
acquired will not be a Subsidiary of UPC Distribution or where UPC
Distribution or one of its Subsidiaries which is a member of the
Borrower Group will own directly or indirectly no more than a 50 per
cent. interest in the asset or assets constituting the acquired
business (a "JV Minority Acquisition") and where:
(i) the Acquisition Cost of that JV Minority Acquisition, when
aggregated with the Acquisition Cost of all JV Minority
Acquisitions made since the Signing Date, but deducting:
(A) the amount of any such Acquisition Cost which has been
directly or indirectly funded (whether before, at or after,
the time of completion of the Acquisition) by the proceeds
of equity subscribed in UPC Distribution or one or more of
its Subsidiaries which is a member of the Borrower Group (in
each case other than by another member of the Borrower
Group) or the proceeds of Subordinated Shareholder Loans
(including, without limitation, the proceeds of any such
equity subscription or Subordinated Shareholder Loan which
are provided to refinance any such equity subscription or
Subordinated Shareholder Loan previously provided), in each
case to the extent such proceeds have not been repaid or
prepaid or redeemed in accordance with Clause 16.13
(Restricted Payments);
(B) the Acquisition Cost of all such JV Minority Acquisitions of
any entity in which a member of the Borrower Group has an
ownership interest at the Signing Date or will have an
ownership interest pursuant to the Restructuring; and
(C) the Acquisition Cost of any Acquisition constituting a JV
Minority Acquisition made pursuant to paragraph (a) above,
does not exceed the amount set out in column 2 below set opposite
the range set out in column 1 below into which the ratio of
Senior Debt to Annualised EBITDA, as shown in the most recent
financial statements delivered under Clause 16.2(b) (Financial
information) falls:
<TABLE>
<S> <C>
(1) (2)
Senior Debt/Annualised EBITDA ratio Aggregate Acquisition Cost Limit
(EURO)
*4.5:1 250,000,000
*3.0:1 but **4.5:1 350,000,000
**3.0:1 500,000,000;
</TABLE>
(ii) if the higher of the Acquisition Cost and the book value of any
JV Minority Acquisition (or, where an opinion confirming the
fairness of the relevant JV Minority Acquisition from a financial
point of view has been issued by an
* more than
** less than or equal to
<PAGE>
25
independent third party, the Acquisition Cost of any JV Minority
Acquisition):
(A) is greater than (Euro) 50,000,000, UPC Distribution
delivers a certificate to the Facility Agent signed by two
managing directors or the sole managing director, as the
case may be, of UPC Distribution and certifying; or
(B) is greater than (Euro) 100,000,000, UPC Distribution
delivers to the Facility Agent financial projections based
on assumptions which are no more aggressive (when taken as
a whole) than those used in the preparation of the
Information Memorandum which demonstrate,
that the Borrowers will be in compliance with Clause 6
(Repayment) and the undertakings set out in Clause 17 (Financial
Covenants) for the period from completion of the JV Minority
Acquisition (taking into account the Acquisition Cost of such JV
Minority Acquisition (but deducting from that Acquisition Cost
the value of any consideration referred to in paragraph (a) of
the definition of "Acquisition Cost") and financial projections
relating to the acquired business or asset(s)) to the last Final
Repayment Date;
(iii) the business of the acquired entity or the business acquired,
as the case may be, is of the same nature as the business of the
Borrower Group as at the Signing Date and is carried out
principally in Europe; and
(iv) no Default has occurred and is continuing or would be caused by
the JV Minority Acquisition.
"Permitted Payment"
has the meaning given to it in Clause 16.13(c) (Restricted Payments).
"Permitted Security Interest"
means:
(a) any Security Interest arising hereunder or under any Security
Document;
(b) (until and including the first Utilisation Date), those Security
Interests referred to in paragraphs (A) to (H) (inclusive) of Schedule
8 (Relevant Security Interests);
(c) any liens arising in the ordinary course of business by way of
contract which secure indebtedness under any agreement for the supply
of goods or services in respect of which payment is not deferred for
more than 180 days (or 360 days if such deferral is in accordance with
the terms pursuant to which the relevant goods were acquired or
services were provided);
(d) any Security Interest imposed by any taxation or governmental
authority in respect of amounts which are being contested in good
faith and not yet payable and for which adequate reserves have been
set aside in the books of the Borrower Group (or, as the case may be,
UPC Distribution Holdco) in respect of the same in accordance with
GAAP;
<PAGE>
26
(e) any Security Interests approved in writing by the Agent (acting on the
instructions of the Majority Lenders);
(f) any Security Interest in favour of any bank incurred in relation to
any cash management arrangements;
(g) rights of set-off arising in the ordinary course of business;
(h) any Security Interest securing any Financial Indebtedness referred to
in Clause 16.12(b)(xi) (Restrictions on Financial Indebtedness),
provided that (A) such Security Interest was not created in
contemplation of the acquisition of such company, (B) the debt secured
by such Security Interest is not increased beyond that secured at the
date the company in question is acquired and such Security Interest
secures only that debt and (C) such Encumbrance is discharged within
twelve months of completion of the relevant acquisition;
(i) any Security Interest over non-Distribution Business Assets referred
to in Clause 16.12(b)(xii) (Restrictions on Financial Indebtedness),
securing Financial Indebtedness described therein or any other
obligation in respect of such non-Distribution Business Assets; and
(j) any Security Interests not falling within paragraphs (a) to (i) above
and securing indebtedness in aggregate not exceeding (Euro) 75,000,000
(or its equivalent).
"Plan"
means a plan that is subject to section 302 or regulated by Title IV of
ERISA maintained by any member of the Borrower Group or any ERISA Affiliate
currently or at any time within the last five years, or to which any member
of the Borrower Group or any ERISA Affiliate is required to make payments
or contributions or has made payments or contributions within the past five
years.
"Pledge of Subordinated Shareholder Loans"
means the deed of pledge and subordination of Subordinated Shareholder
Loans to be entered into between certain Restricted Persons and the
Security Agent in the agreed form as described in paragraph 3(iii) of
Schedule 7 (Security Documents) and any other deed of pledge entered into
pursuant to any such deed of pledge or Clause 16.25(a) (Shareholder Loans).
"Rate Fixing Day"
means:
(a) the Utilisation Date of an Advance denominated in Sterling;
(b) the second Business Day before the Utilisation Date of an Advance
denominated in a currency other than euros or Sterling; or
(c) the second TARGET Day before the Utilisation Date of an Advance
denominated in euros,
<PAGE>
27
or such other day on which it is market practice in the London or, as the
case may be, European interbank market for leading banks to give quotations
in the relevant currency for delivery on the first day of the relevant
Utilisation Date.
"Ratio Period"
has the meaning given to it in Clause 17.1 (Financial definitions).
"Reference Banks"
means, subject to Clause 26.5 (Reference Banks), the principal London
offices of The Chase Manhattan Bank, The Toronto-Dominion Bank and CIBC
World Markets plc.
"Related Fund"
means, with respect to any Facility C Lender that is a fund that invests in
commercial loans, any other fund that invests in commercial loans and is
administered or managed by (a) that Facility C Lender, (b) any Affiliate of
that Facility C Lender or (c) the same investment adviser (or an Affiliate
of that investment adviser) that administers or manages that Facility C
Lender.
"Relevant Eastern European Subsidiary"
means any Subsidiary of any Obligor which Subsidiary is incorporated and
has all its material operations in Eastern Europe, provided that the
aggregate of the contributions of the Relevant Eastern European
Subsidiaries to the consolidated total assets, consolidated revenues and
consolidated EBITDA of the Borrower Group attributable to Eastern Europe
does not exceed in aggregate 10 per cent.
For the purposes of this definition, consolidated revenues and consolidated
EBITDA of the Borrower Group or any Subsidiary of an Obligor shall be
determined by reference to the 12 month period ending on the most recent
date in respect of which financial statements have been delivered to the
Facility Agent under Clause 16.2(b) (Financial information) and
consolidated total assets shall be determined as at such date by reference
to such financial statements.
"Relevant Event"
means a Default in relation to (a) Clause 18.2 (Non-payment) or (b) Clause
17.2 (Financial ratios).
"Repayment Date"
means each date identified in Clause 6.1 (Repayment of Advances).
"Repayment Instalment"
means each Facility B Repayment Instalment (as defined in Clause 6.2
(Repayment of Facility B Advances)) and each Facility C Repayment
Instalment (as defined in Clause 6.3 (Repayment of Facility C Advances)).
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28
"Request"
means a request made by a Borrower to utilise any of the Facilities and,
subject to Clause 5.2 (Form of Request), substantially in the form of Part
I of Schedule 4 (Form of Request and Cancellation Notice).
"Requested Amount"
means the amount requested in a Request.
"Restricted Payment"
has the meaning given to it in Clause 16.13(b) (Restricted Payments).
"Restricted Person"
means UPC, Belmarken, UPC Holding, any other company (not being a member of
the Borrower Group) which is a Subsidiary of, or an Associated Company of,
UPC (other than Associated Companies of UPC which are its Associated
Companies by virtue of controlling UPC or owning beneficially and/or
legally directly or indirectly 10 per cent. or more of the equity interests
in UPC).
"Restricted Person's Framework Agreement"
means the Framework Agreement as defined in any Pledge of Subordinated
Shareholder Loans.
"Restructuring"
means the transfer of all or part of the share capital of certain persons,
together with the transfer of certain intercompany receivables owing from
such persons to any Restricted Person, to members of the Borrower Group
and/or Restricted Persons so that the Borrower Group, following the
completion of all such transfers, will be UPC Distribution and its
Subsidiaries as described in the structure chart set out at Part II of
Schedule 10 (Borrower Group Structure).
"Rollover Advance"
means one or more Facility A Advances:
(a) made or to be made on the same day that a maturing Facility A Advance
is due to be repaid;
(b) the aggregate Original Euro Amount of which is equal to or less than
the Original Euro Amount of the maturing Facility A Advance; and
(c) made or to be made to UPC Distribution for the purpose of refinancing
a maturing Facility A Advance.
"Romania Restructuring"
means the consolidation or merger, into UPC Romania, of any person in which
a member of the Borrower Group has an interest on the Signing Date or will
have such an interest as a
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29
result of the Restructuring and which is carrying on business in Romania
and any transaction or series of transactions related thereto, in each case
as disclosed in writing to the Facility Agent prior to the Signing Date.
"Screen Rate"
means:
(a) in relation to LIBOR, the British Bankers Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant period,
displayed on the appropriate page of the Reuters screen. If that page is
replaced or the service ceases to be available, the Facility Agent may
specify another page or service displaying the appropriate rate after
consultation with UPC Distribution and the Lenders.
"Security Deed"
means the Security Deed to be entered into between, among others, each
Obligor, the Facility Agent, the Security Agent, the Lenders, the Senior
Hedging Banks, the High Yield Hedging Banks and each Subordinated Creditor
and includes each Deed of Accession (as defined in the Security Deed)
entered into in relation to the Security Deed.
"Security Documents"
means:
(a) the documents listed in Schedule 7; and
(b) such other security documents as may from time to time be entered into
in favour of any Beneficiary pursuant to any of the Finance Documents
(including without limitation any other Obligor pledge of Shareholder
Loans or Pledge of Subordinated Shareholder Loans, any security
document referred to in Clause 16.23 (UPC Distribution Pledged
Account), Clause 16.24 (Share security) or Clause 16.26 (Further
security over receivables) and any security document provided to the
Security Agent in connection with the accession of an Additional
Guarantor pursuant to Clause 26.4 (Additional Guarantors) and Part II
of Schedule 2 (Conditions precedent documents).
"Security Interest"
means any mortgage, charge (whether fixed or floating), pledge, lien,
hypothecation, assignment by way of security, trust arrangement for the
purpose of providing security or other security interest of any kind
securing any obligation of any person or any other arrangement having the
effect of conferring rights of retention or other disposal rights over an
asset (including without limitation title transfer and/or retention
arrangements having a similar effect or a deposit of money with the primary
intention of affording a right of set-off) and includes any agreement to
create any of the foregoing but does not include (a) liens arising in the
ordinary course of business by operation of law and not by way of contract
and (b) any grant of indefeasible rights of use or equivalent arrangements
with respect to network capacity, communications, fibre capacity or
conduit.
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30
"Security Provider's Deed of Accession"
has the meaning given to it in the Security Deed.
"Senior Beneficiary"
has the meaning given to the term in the Security Deed.
"Senior Debt"
has the meaning given to it in Clause 17.1 (Financial definitions).
"Senior Hedging Agreements"
means any and all interest rate and/or currency swap and/or interest rate
and/or currency cap and/or other interest rate and/or currency hedging
agreements entered into or to be entered into by any member of the Borrower
Group with any of the Senior Hedging Banks from time to time in relation to
the Borrower Group's floating rate interest exposure and/or currency
exposure.
"Senior Hedging Bank"
means a Lender or its Affiliate which is or becomes a party to the Security
Deed as a senior hedging bank.
"Shareholder"
means UPC or a Subsidiary (as defined in any relevant Indenture) of UPC.
"Shareholders' Agreements"
means the agreements listed in Part II of Schedule 11.
"Signing Date"
means the date of this Agreement.
"Sterling"
means the lawful currency for the time being of the United Kingdom.
"Subordinated Creditor"
means any Restricted Person who has, at any relevant time, entered into a
Pledge of Subordinated Shareholder Loans and the Security Deed or a
Security Provider's Deed of Accession.
"Subordinated Shareholder Loans"
means any Financial Indebtedness of any member of the Borrower Group owed
to a Subordinated Creditor.
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31
"Subsidiary"
of a person means any company or entity directly or indirectly controlled
by such person, for which purpose "control" means ownership of more than 50
per cent. of the economic and/or voting share capital (or equivalent right
of ownership of such company or entity).
"Swedish Kronor"
means the lawful currency of Sweden for the time being.
"Syndication Letter"
means the letter dated on or about the Signing Date between the Borrowers
and the Lead Arrangers relating to the syndication of the Facilities.
"Syndication Period"
means the period ending on the earlier of (a) 15th November, 2000 and (b)
the date that the Lead Arrangers notify UPC Distribution that general
syndication of the Facilities is completed (which the Lead Arrangers shall
do promptly after completion of general syndication).
"TARGET Day"
means a day on which the Trans-European Automated Real-Time Gross
Settlement (TARGET) System is operating.
"Taxes" or "Tax"
means all present and future taxes, imposts, duties, levies, fees or
charges of a similar nature, together with interest thereon and penalties
in respect thereof.
"Telecommunications and Cable Law"
means all laws, statutes, regulations and judgments relating to
telecommunications, cable television and data services applicable to any
member of the Borrower Group and/or the business carried on by any member
of the Borrower Group in any jurisdiction in which a member of the Borrower
Group is incorporated or formed or in which such member has its principal
place of business or owns any material assets.
"Telekabel Wien"
means Telekabel Wien GmbH a company incorporated under the laws of Austria
with its corporate seat at Erlachgasse 116, 1100 Wien, Austria and with
registration number FN 84116a.
"Total Cash Interest"
has the meaning given to it in Clause 17.1 (Financial definitions).
"Total Debt"
has the meaning given to it in Clause 17.1 (Financial definitions).
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32
"Total Facility A Commitments"
means the aggregate for the time being of the Facility A Commitments.
"Total Facility B Commitments"
means the aggregate for the time being of the Facility B Commitments.
"Total Facility C Commitments"
means the aggregate for the time being of the Facility C Commitments.
"UGC"
means UnitedGlobalCom, Inc. a corporation incorporated in the State of
Delaware, United States and, as of the Signing Date, having its business
office at 4643 South Ulster Street, Suite 1300, Denver, Colorado 80237
U.S.A.
"United States" or "US"
means the United States of America.
"Unpaid Sum"
means any sum due and payable but unpaid by an Obligor under the Finance
Documents.
"Unrestricted Subsidiary"
means each Subsidiary of UPC Distribution and, prior to the Restructuring,
each Subsidiary of each Obligor that is not a Subsidiary of UPC
Distribution, the acquisition cost of which and whose on-going funding
requirements are not funded directly or indirectly (in whole or in part) by
any member of the Borrower Group by way of drawings under the Facilities
and which is designated by UPC Distribution in writing as an Unrestricted
Subsidiary.
"UPC"
means:
(a) United Pan-Europe Communications N.V., a public limited liability
company incorporated under the laws of The Netherlands and, as of the
Signing Date, with its registered office at Amsterdam and its business
office at Beech Avenue 100, 1119 PW Schiphol Rijk, Postbus 74763,
1070 BT Amsterdam, The Netherlands; and
(b) if the entity referred to in (a) above:
(i) consolidates with or merges with any other person or persons; or
(ii) directly or indirectly, sells, leases, conveys or transfers all
or substantially all of its assets to any other person or
persons,
the successor person formed by such consolidation or into which such
entity is merged or to which such conveyance, transfer or lease is
made and which succeeds to and (except in the case of a lease) is
substituted for, and assumes all the obligations of, such entity under
and in accordance with the Indentures.
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33
"UPC Distribution Holdco"
means the immediate Holding Company of UPC Distribution from time to time,
being UPC Holding as of the Signing Date.
"UPC Holding"
means UPC Holding B.V., a limited liability company incorporated under the
laws of The Netherlands and, as of the Signing Date, with its registered
office at Amsterdam and its business office at Beech Avenue 100, 1119 PW
Schiphol Rijk, Postbus 74763, 1070 BT Amsterdam, The Netherlands.
"UPC Holding II"
means UPC Holding II B.V., a limited liability company incorporated under
the laws of The Netherlands and, as of the Signing Date, with its
registered office at Amsterdam and its business office at Beech Avenue 100,
1119 PW Schiphol Rijk, Postbus 74763, 1070 BT Amsterdam, The Netherlands.
"UPC Romania"
means UPC Romania s.a., a Romanian company, 70 per cent. of whose shares
are or shall be (following the Romania Restructuring) owned directly or
indirectly by UPC Romania Holding B.V., a wholly-owned subsidiary of
Stipdon Investments B.V..
"US Dollars" and "US$"
means the lawful currency for the time being of the United States.
"US Obligor"
has the meaning given to it in Clause 18.6(e) (Insolvency).
"Utilisation Date"
means, in relation to each Advance, the date specified as such in the
relevant Request or, on and after the making and/or issue thereof pursuant
to such Request, the date on which it was made and/or issued.
"VAT"
means value added or similar tax.
"Western Europe"
means the countries that currently comprise the European Community,
Scandinavia and Switzerland.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) a document being in the "agreed form" means a document (A) in a form
previously agreed in writing by or on behalf of the Facility Agent and
UPC Distribution, or (B)
<PAGE>
34
in a form substantially as set out in any Schedule to any Finance
Document, or (C) (if not falling within (A) or (B) above) in form and
substance satisfactory to the Lenders and initialled by or on behalf
of the Facility Agent and UPC Distribution for the purposes of
identification;
"amendment" includes a supplement, novation or re-enactment and
"amended" is to be construed accordingly;
"assets" includes all or any part of any business, undertaking, real
property, personal property, uncalled capital and any rights (whether
actual or contingent, present or future) to receive, or require
delivery of, any of the foregoing;
references to the "equivalent" of an amount specified in a particular
currency (the "specified currency amount") shall be construed as a
reference to the amount of the other relevant currency which can be
purchased with the specified currency amount in the London foreign
exchange market at or about 11.00 a.m. on the day on which the
calculation falls to be made for spot delivery as determined by the
Facility Agent in accordance with its customary practices;
"European interbank market" means the interbank market for euro
operating in Participating Member States;
a "guarantee" includes a reference to an indemnity or other assurance
against financial loss including, without limitation, an obligation
to purchase assets or services as a consequence of a default by any
other person to pay any indebtedness and "guaranteed" shall be
construed accordingly;
"indebtedness" is a reference to any obligation for the payment or
repayment of money, whether as principal or as surety and whether
present or future, actual or contingent;
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 calendar month, except that, if there is no numerically
corresponding day in the month in which that period ends, that period
shall end on the last Business Day in that month;
a "person" includes any individual, firm, company, corporation,
unincorporated body of persons or any state or any of its agencies;
a "regulation" includes any present or future regulation, rule,
directive, requirement, request or guideline (whether or not having
the force of law but, if not having the force of law, only if
compliance therewith is in accordance with the general practice of
the relevant persons to whom it is intended to apply or, in the case
of Clause 12 (Increased Costs) only, the relevant Finance Party or
its Holding Company) of any agency, authority, central bank or
government department or any self-regulatory or other national or
supra-national authority;
(ii) a provision of a law is a reference to that provision as amended, re-
enacted or extended;
(iii) a Clause or a Schedule is a reference to a clause of or a schedule
to this Agreement;
(iv) a person includes its successors, transferees and assigns;
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35
(v) (or to any specified provision of) this Agreement or any other
document shall be construed, save where expressly provided to the
contrary in this Agreement, as a reference to this Agreement, that
provision or that document as in force for the time being and as
from time to time amended in accordance with its terms, or, as the
case may be, with the agreement of the relevant parties and (where
such consent is, by the terms of this Agreement or the relevant
document, required to be obtained as a condition to such amendment
being permitted) the prior written consent of the Facility Agent,
all of the Lenders or the Majority Lenders or Majority Facility C
Lenders (as the case may be);
(vi) other than in the definition of "EURIBOR" in Clause 1.1
(Definitions), a time of day is a reference to London time; and
(vii) words importing the plural include the singular and vice versa.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(c) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
(d) Unless expressly provided to the contrary in a Finance Document, a person
who is not a party to a Finance Document may not enforce any of its terms
under the Contracts (Rights of Third Parties) Act 1999.
(e) Notwithstanding any term of any Finance Document, the consent of any third
party is not required for any variation (including any release or
compromise of any liability under) or termination of that Finance Document.
1.3 Replacement Facility
This Agreement, the other Finance Documents and any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith replace the (Euro) 1,000,000,000 Loan and Note
Issuance Agreement dated 27th July, 1999 between, amongst others, UPC
Facility B.V., Telekabel Wien and UPC Norge A/S (formerly Janco Multicom
A/S) as borrowers and The Toronto-Dominion Bank as agent (the "UPCF
Facility Agreement") and any related notes, guarantees, collateral
documents, instruments and agreements executed in connection with the UPCF
Facility Agreement except as provided in this Agreement or otherwise.
2. THE FACILITIES
2.1 Facilities
The relevant Lenders grant to the Borrowers:
(a) a committed (Euro) 750,000,000 multicurrency revolving credit
facility under which the relevant Lenders will, when requested by
UPC Distribution, make cash advances in euros or Optional Currencies
to UPC Distribution on a revolving basis during the Facility A
Availability Period;
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36
(b) a committed (Euro)2,750,000,000 term loan facility under which the
relevant Lenders will, when requested by UPC Distribution, make cash
advances in euros or Optional Currencies to UPC Distribution during
the Facility B Availability Period; and
(c) a committed US$347,500,000 and (Euro)95,000,000 term loan facility
under which the relevant Lenders will, when requested by the relevant
Borrower, make cash advances in euros (in the case of UPC
Distribution) or US Dollars (in the case of the US Borrower) (as
applicable) to the relevant Borrower during the Facility C
Availability Period,
in each case subject to the terms of this Agreement.
2.2 Overall facility limits
(a) The aggregate Original Euro Amount of all outstanding Facility A Advances
shall not at any time exceed the Total Facility A Commitments.
(b) The aggregate Original Euro Amount of all outstanding Facility B Advances
shall not at any time exceed the Total Facility B Commitments.
(c) (i) The aggregate amount of all outstanding Facility C1 Advances shall
not at any time exceed the aggregate of the Facility C1 Commitments;
(ii) The aggregate amount of all outstanding Facility C2 Advances shall
not at any time exceed the aggregate of the Facility C2 Commitments.
(d) The aggregate Original Euro Amount of:
(i) the participations of a Lender in Facility A Advances shall not at
any time exceed that Lender's Facility A Commitment at that time; and
(ii) the participations of a Lender in Facility B Advances shall not at
any time exceed that Lender's Facility B Commitment at that time.
(e) (i) The aggregate amount of the participations of a Lender in Facility C1
Advances shall not at any time exceed that Lender's Facility C1
Commitment at that time; and
(ii) The aggregate amount of the participations of a Lender in Facility C2
Advances shall not at any time exceed that Lender's Facility C2
Commitment at that time.
2.3 Number of Requests and Advances
(a) Unless the Facility Agent agrees otherwise, no more than one Request for
Advances may be delivered on any one day but that Request may, subject to
paragraph (b) below, specify any number of Advances from any Facility or
all of them.
(b) Unless the Facility Agent agrees otherwise, no more than 50 Advances may be
outstanding at any one time.
(c) No more than one Request may be made for Facility C Advances under this
Agreement.
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37
2.4 Syndication period
Notwithstanding any provision of this Agreement, no Borrower will deliver a
Request for an Advance during the Syndication Period specifying an Interest
Period other than seven, 14, or 21 days or one month (unless the Lead
Arrangers and the Majority Lenders agree otherwise).
2.5 Nature of a Finance Party's rights and obligations
(a) The obligations of a Finance Party under the Finance Documents are several.
Failure of a Finance Party to carry out those obligations does not relieve
any other Party of its obligations under the Finance Documents. No Finance
Party is responsible for the obligations of any other Finance Party under
the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
(c) Each of the Obligors and each of the Finance Parties agrees that the
Security Agent shall be the joint and several creditor ("hoofdelijk
crediteur") of each and every obligation of any Obligor towards each of the
Finance Parties under any Finance Document, and that accordingly the
Security Agent will have its own independent claim as creditor and not as
agent against each Obligor to demand performance by the relevant Obligor of
those obligations. However, any discharge of any such obligation to either
of the Security Agent or the relevant Finance Party shall, to the same
extent, discharge the corresponding obligation owing to the other.
(d) Without limiting or affecting the Security Agent's rights against any
Obligor (whether under this paragraph or under any other provision of the
Finance Documents), the Security Agent agrees with each other Finance Party
(on a several and divided basis) that, subject as set out in the next
sentence, it will not exercise its rights as a joint and several creditor
with a Finance Party except with the prior written consent of the relevant
Finance Party. However, for the avoidance of doubt, nothing in the previous
sentence shall in any way limit the Agent's right to act in the protection
or preservation of rights under or to enforce any Security Document or the
Security Deed as contemplated by the Finance Documents (or to do any act
reasonably incidental to any of the foregoing).
2.6 UPC Distribution as Obligors' agent
Each Obligor:
(a) irrevocably authorises and instructs UPC Distribution to give and
receive as agent on its behalf all notices (including Requests) and
sign all documents in connection with the Finance Documents on its
behalf (including but not limited to amendments and variations and
execution of any new Finance Documents) and take such other action as
may be necessary or desirable under or in connection with the Finance
Documents; and
(b) confirms that it will be bound by any action taken by UPC Distribution
under or in connection with the Finance Documents.
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38
2.7 Actions of UPC Distribution as Obligors' agent
The respective liabilities of each of the Obligors under the Finance
Documents shall not be in any way affected by:
(a) any irregularity (or purported irregularity) in any act done by or any
failure (or purported failure) by UPC Distribution;
(b) UPC Distribution acting (or purporting to act) in any respect outside
any authority conferred upon it by any Obligor; or
(c) the failure (or purported failure) by or inability (or purported
inability) of UPC Distribution to inform any Obligor of receipt by it
of any notification under this Agreement or any other Finance
Document.
3. PURPOSE
3.1 By Facility
(a) Each Advance will be applied:
(i) in the case of Facility A, to finance the general corporate and
working capital purposes of the Borrower Group, including to finance
capital expenditure and the making of acquisitions by the Borrower
Group (to the extent permitted by this Agreement);
(ii) in the case of Facility B, to refinance in part the Financial
Indebtedness described in Schedule 9 and to finance capital
expenditure and the making of acquisitions by the Borrower Group;
and
(iii) in the case of Facility C, to refinance in part the Financial
Indebtedness described in Schedule 9.
(b) (i) Subject to sub-paragraph (ii) below, each Obligor (other than UPC
Distribution Holdco) will not, and will procure that none of its
Subsidiaries which are members of the Borrower Group will, use the
proceeds of Advances drawn under the Facilities in aggregate in
excess of (Euro) 750,000,000 (including without limitation by way of
transfer, loan, subscription of equity or other investment (each a
"Relevant Investment")) in the business of members of the Borrower
Group incorporated or principally carrying on business in Eastern
Europe.
(ii) The proceeds of any Advance used by any member of the Borrower Group
to make a Relevant Investment, at the time of and in connection with
the Acquisition by the Borrower Group following the Signing Date of
all or part of the shares or assets of @Entertainment, Inc. or any
of its Subsidiaries, persons which are Controlled by it or persons
in which it has an ownership interest, shall not count towards the
aggregate proceeds of Advances calculated for the purposes of
paragraph (b)(i).
3.2 No monitoring
Without affecting the obligations of the Borrowers in any way, no Finance
Party is bound to monitor or verify the application of the proceeds of any
Advance.
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39
4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
No Borrower may draw an Advance under this Agreement until the Facility
Agent has notified UPC Distribution and the Lenders that it has received
all of the documents set out in Part I of Schedule 2 in form and substance
satisfactory to the Facility Agent. The Facility Agent will confirm to UPC
Distribution that it has received such documents as soon as practicable
upon receiving all of them in form and substance satisfactory to it.
4.2 Further conditions precedent
The obligations of each Lender in respect of each Advance are subject to
the further conditions precedent that on the date of the Request for that
Advance and on the proposed Utilisation Date:
(a) except in the case of a Rollover Advance, the representations and
warranties in Clause 15 (Representations and Warranties) to be
repeated on those dates are and will be immediately after the relevant
Advance is drawn down correct in all material respects; and
(b) in the case of a Rollover Advance, no Event of Default is outstanding
or would result from the proposed Advance and, in the case of other
Advances, no Default is outstanding or would result from the proposed
Advance; and
(c) except in the case of a Rollover Advance, no Change of Control has
occurred where the event has not been waived by the Majority Lenders.
4.3 Pro forma covenant compliance
(a) No Borrower may Request or obtain any Advance in an amount which, when
aggregated with all other Advances (other than Rollover Advances) made
since the last day of the most recent Ratio Period ending prior to the
proposed date of that Advance for which financial statements have been
delivered pursuant to Clauses 4.1 (Documentary Conditions Precedent)
or 16.2(a) or (b) (Financial information) (the "Relevant Ratio
Period") would cause UPC Distribution to fail to be in compliance
with:
(i) the financial ratios set out in Clause 17.2 (Financial ratios)
for the Relevant Ratio Period, if such financial ratios were re-
tested for the Relevant Ratio Period after adding the aggregate
amount of all such Advances to the amount of Senior Debt used in
calculating such ratios; and
(ii) in the case of any Advance to be made:
(A) prior to delivery of the financial statements referred to in
Clause 16.2(b) (Financial information) for the financial
quarter ending on 31st March, 2003; and
(B) at a time when the aggregate Original Euro Amount of all
outstanding Advances exceeds or will, when aggregated with
the Original Euro Amount of the proposed Advance, exceed
(Euro)2,300,000,000,
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40
the financial ratio set out in paragraph (b) below for the
Relevant Ratio Period, if such financial covenant were tested for
the Relevant Ratio Period after adding the aggregate amount of
all such Advances to the amount of Facility Outstandings used in
calculating such ratio for such Relevant Ratio Period.
(b) For the purposes of paragraph (a)(ii) above only, UPC Distribution will
procure that the ratio of Facility Outstandings to Annualised EBITDA for
each Relevant Ratio Period which ends in a period set out in column 1 below
shall not exceed the ratio set out in column 2 below opposite such date or
period:
(1) (2)
Relevant period Ratio
From the Signing Date to and including 31st March, 2001 12.0:1
From 1st April, 2001 to and including 31st December, 2001 11.0:1
From 1st January, 2002 to and including 31st March, 2002 10.0:1
From 1st April, 2002 to and including 30th June, 2002 9:0:1
From 1st July, 2002 to and including 31st December, 2002 8.0:1
For the purpose of paragraph (a) above and this paragraph (b), "Facility
Outstandings" for any Relevant Ratio Period means the aggregate principal
amount of all outstanding Advances on the last day of the Relevant Ratio
Period. Other capitalised terms used in this paragraph (b) shall have the
meanings given to them in Clause 17.1 (Financial definitions), provided
that, in calculating "Annualised EBITDA" for the Relevant Ratio Period, an
amount representing subscriber acquisition costs ("SACS") for that Relevant
Ratio Period shall be added back, calculated as follows:
SACs = (Euro) 200 x Net New Subscribers for the Relevant Ratio Period,
where
"Net New Subscribers" means, in respect of a Relevant Ratio Period, the
higher of zero and:
(i) the total number of Revenue Generating Units at the end of the
Relevant Ratio Period; less
(ii) the total number of Revenue Generating Units at the end of the
last Ratio Period before the Relevant Ratio Period; and
Revenue Generating Units" means, at any time, the number of subscribers to
the multi-channel television and programming, telephony, internet and/or
data services of the networks operated by any member of the Borrower Group
(each a "Service") who are at that time committed to make regular payments
to such member of the Borrower
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41
Group or to any other provider of such Service on behalf of such
member of the Borrower Group in respect of such subscribers'
subscription to or utilisation of one or more Services. For the
purposes of this definition, a subscriber to more than one Service
shall be counted as a separate Revenue Generating Unit in respect of
each such Service.
4.4 Deferred Acquisition Costs
Where a member of the Borrower Group has made an Acquisition permitted by
Clause 16.11 (Acquisitions and mergers), no Borrower may Request, or apply
the proceeds of, any Advance for the purpose of paying any consideration
referred to in paragraph (a) of the definition of "Acquisition Cost" in
relation to that Acquisition, unless UPC Distribution delivers to Facility
Agent on or before the date of each relevant Request:
(a) where the Acquisition Cost of the acquisition was greater than
(Euro)200,000,000 and no more than (Euro) 350,000,000, a certificate
signed by two managing directors or the sole managing director, as the
case may be, of UPC Distribution and certifying; or
(b) where the Acquisition Cost of the acquisition was greater than
(Euro)350,000,000, financial projections based on assumptions which
are no more aggressive (when taken as a whole) than those used in the
preparation of the Information Memorandum which demonstrate,
that the Borrowers will be in compliance with Clause 6 (Repayment) and the
undertakings set out in Clause 17 (Financial Covenants) for the period from
the Utilisation Date of such Advance (taking into account (i) the
Acquisition Cost of such acquisition (but deducting from that Acquisition
Cost the value of any consideration referred to in paragraph (a) of the
definition of "Acquisition Cost" which has yet to be paid or delivered),
(ii) the amount of such Advance and (iii) financial projections relating to
the acquired business or asset(s)) to the last Final Repayment Date.
5. ADVANCES
5.1 Delivery of Request
Subject to the terms of this Agreement, a Borrower may request an Advance
by delivering to the Facility Agent by not later than 11.00 a.m. on the
third Business Day, before the proposed Utilisation Date, a duly completed
Request.
5.2 Form of Request
Each Request shall specify (where applicable):
(a) the relevant Facility;
(b) the proposed Utilisation Date, which shall be a Business Day falling
during the Facility A Availability Period (in the case of a Facility A
Advance), the Facility B Availability Period (in the case of a
Facility B Advance) or the Facility C Availability Period (in the case
of a Facility C Advance);
(c) the currency of the proposed Advance which must be euros or an
Optional Currency (in the case of a Facility A Advance or Facility B
Advance), euros (in the case of a Facility C1 Advance) or US Dollars
(in the case of a Facility C2 Advance);
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42
(d) the principal amount of the proposed Advance which:
(i) for an Advance denominated in euros, shall be a minimum amount
of (Euro)10,000,000;
(ii) for an Advance denominated in US Dollars, shall be a minimum
amount of US$10,000,000; and
(iii) for an Advance denominated in any other Optional Currency,
shall be a minimum amount equivalent to (Euro )5,000,000 (in
each case using the Agent's Spot Rate of Exchange);
(e) the Interest Period of the Advance, which must be a period complying
with Clause 8 (Interest); and
(f) unless previously notified to the Facility Agent in writing and not
revoked, the details of the bank and account to which the proceeds of
the proposed Advance are to be made available, which must comply with
Clause 9 (Payments).
Subject to the terms of this Agreement, each Request shall be irrevocable
and the relevant Borrower shall be bound to borrow an Advance in accordance
with such Request.
5.3 Notification to the Lenders
The Facility Agent shall promptly notify each Lender participating in the
relevant Advance of each Request for an Advance and the amount of its
participation in the Advance.
5.4 Participations in Advances
(a) Subject to the terms of this Agreement, each Lender shall, on the date
specified in any Request for an Advance, make available to the Facility
Agent for the account of the relevant Borrower the amount of its
participation in that Advance. All such amounts shall be made available to
the Facility Agent in accordance with Clause 9.2 (Funds) for disbursement
to or to the order of the relevant Borrower in accordance with the
provisions of this Agreement.
(b) The amount of a Lender's participation in an Advance will be the proportion
(applied to the amount set out in the Request) which:
(i) in the case of a Facility A Advance, its Facility A Commitment bears
to the Total Facility A Commitments;
(ii) in the case of a Facility B Advance, its Facility B Commitment bears
to the Total Facility B Commitments;
(iii) in the case of a Facility C1 Advance, its Facility C1 Commitment
bears to the aggregate of the Facility C1 Commitments; and
(iv) in the case of a Facility C2 Advance, its Facility C2 Commitment
bears to the aggregate of the Facility C2 Commitments.
(c) If an Advance is to be drawn down in an Optional Currency, the amount of
each Lender's participation in that Advance will be determined by
converting into that Optional Currency
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43
the Lender's participation in the Original Euro Amount of that Advance on
the basis of the Agent's Spot Rate of Exchange three Business Days before
its Utilisation Date.
5.5 Conditions relating to Optional Currencies
(a) If the Facility Agent has received a written request from a Borrower for a
currency to be approved as an Optional Currency, the Facility Agent will
confirm to that Borrower by 10.00 a.m. on the day two Business Days after
receipt of such request:
(i) whether or not the Lenders have granted their approval; and
(ii) if approval has been granted, the minimum amount (and, if required,
integral multiples) for any subsequent Advance to be drawn in that
currency.
(b) Advances denominated in euro will only be made available in the euro unit.
6. REPAYMENT
6.1 Repayment of Facility A Advances
(a) UPC Distribution shall repay each Facility A Advance in full on the
Interest Date for that Advance to the Facility Agent for the Lenders, but
since Facility A is available on a revolving basis amounts repaid may be
reborrowed during the Facility A Availability Period subject to the terms
of this Agreement.
(b) On each date on which the Facility A Commitments are cancelled under Clause
7.1(d), UPC Distribution shall repay sufficient Facility A Advances to
ensure that the Facility A Advances do not exceed the Total Facility A
Commitments as so reduced.
(c) No Facility A Advance may be outstanding after the end of the Facility A
Availability Period.
6.2 Repayment of Facility B Advances
UPC Distribution shall procure that, subject to the application of Clause 7
(Cancellation and Prepayment), the outstanding Facility B Advances shall be
repaid in full by payment of semi-annual instalments (each a "Facility B
Repayment Instalment") on each date set out in column 1 below (each date
for repayment being a "Facility B Repayment Date") up to and including the
Final Repayment Date for Facility B. Each Facility B Repayment Instalment
(other than the last) shall be in an Original Euro Amount equal as nearly
as possible (rounded upwards if necessary) to the percentage, set out in
column 2 below opposite the relevant Facility B Repayment Date , of the
total outstanding amount of Facility B Advances on the last day of the
Facility B Availability Period. The final Facility B Repayment Instalment
shall comprise all Facility B Advances outstanding on the Facility B Final
Repayment Date:
(1) (2)
Facility B Repayment Date Relevant Percentage
30th June, 2004 6.25%
31st December, 2004 6.25%
30th June, 2005 11.25%
31st December, 2005 11.25%
30th June, 2006 16.25%
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44
(1) (2)
Facility B Repayment Date Relevant Percentage
31st December, 2006 16.25%
30th June, 2007 11.25%
31st December, 2007 11.25%
Facility B Final Repayment Date The aggregate amount of all
outstanding Facility B Advances
6.3 Repayment of Facility C Advances
(a) The Borrowers shall procure that, subject to the application of Clause 7
(Cancellation and Prepayment), the outstanding Facility C Advances shall be
repaid in full by payment of semi-annual instalments (each a "Facility C
Repayment Instalment") on each date specified in Column (1) below (each
date for repayment being a "Facility C Repayment Date") up to and including
the Final Repayment Date for Facility C. Each Facility C Repayment
Instalment (other than the last) shall be in an Original Euro Amount equal
as nearly as possible (rounded upwards if necessary) to the percentage, set
out in column 2 below opposite the relevant Facility C Repayment Date, of
the total outstanding amount of Facility C Advances on the last day of the
Facility C Availability Period. The Final Facility C Repayment Instalment
shall comprise all Facility C Advances outstanding on the Facility C Final
Repayment Date.
(1) (2)
Facility B Repayment Date Relevant Percentage
30th June, 2004 0.50%
31st December, 2004 0.50%
30th June, 2005 0.50%
31st December, 2005 0.50%
30th June, 2006 0.50%
31st December, 2006 0.50%
30th June, 2007 0.50%
31st December, 2007 0.50%
30th June, 2008 24.00%
31st December, 2008 24.00%
Facility C Final Repayment Date The aggregate amount of all
outstanding Facility C Advances
(b) Each such Facility C Repayment Instalment shall be applied pro rata against
the outstanding Original Euro Amount of Facility C1 Advances and Facility
C2 Advances. For the avoidance of doubt, any amounts paid under this Clause
6.3 to a Lender in respect of a Facility C2 Advance shall be paid in US
Dollars, as required pursuant to Clause 9.4(a) (Currency).
6.4 Adjustment of Facility B Advances
(a) For each Facility B Advance in an Optional Currency, there shall be
calculated the difference between the amount of the relevant Advance (in
that Optional Currency) for the current Interest Period and for the next
Interest Period. The amount of the Facility B Advance for the next Interest
Period will be determined by notionally converting into that Optional
Currency
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45
the Original Euro Amount of the Facility B Advance on the basis of the
Agent's Spot Rate of Exchange three Business Days before the commencement
of that Interest Period.
(b) At the end of the current Interest Period (but subject always to paragraph
(c) below):
(i) if the amount of the Facility B Advance for the next Interest Period
is less than for the preceding Interest Period, UPC Distribution shall
repay the difference; or
(ii) if the amount of the Facility B Advance for the next Interest Period
is greater, each Lender shall forthwith make available to the Facility
Agent for UPC Distribution its participation in the difference.
(c) If the Agent's Spot Rate of Exchange for the next Interest Period shows an
appreciation or depreciation of the Optional Currency against euros of less
than five per cent. when compared with the Original Exchange Rate, no
amounts are payable in respect of the difference. In this Clause 6,
"Original Exchange Rate" means the Agent's Spot Rate of Exchange used for
determining the amount of the Optional Currency for the Interest Period
which is the later of the following:
(i) the first Interest Period of the relevant Advance; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 6.4.
6.5 Prepayments and repayments
If a Facility B Advance is to be repaid or prepaid by reference to an
Original Euro Amount, the Optional Currency amount to be repaid or prepaid
shall be determined by reference to the Agent's Spot Rate of Exchange used
for determining the Optional Currency amount of that Facility B Advance
under Clause 5.4(c) (Participation in Advances) or, if applicable, the
Original Exchange Rate.
6.6 Notification
The Agent shall notify the Lenders and UPC Distribution of Optional
Currency amounts (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained under this Agreement.
7. CANCELLATION AND PREPAYMENT
7.1 Automatic Cancellation of the Commitments
(a) The Facility A Commitment of each Lender shall be automatically cancelled
at the close of business in London on the last day of the Facility A
Availability Period.
(b) The undrawn Facility B Commitment of each Lender shall be automatically
cancelled at the close of business in London on the last day of the
Facility B Availability Period.
(c) The undrawn Facility C Commitment of each Lender shall be automatically
cancelled at the close of business in London on the last day of the
Facility C Availability Period.
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46
(d) The Facility A Commitments will be cancelled, such that, at the close of
business in London on each date set out in column 1 below, the Total
Facility A Commitments will be reduced to the amount set opposite that date
in column 2 below.
(1) (2)
Date Facility A Total Commitment after reduction
(Euro)
30th June, 2005 666,750,000
30th June, 2006 583,400,000
30th June, 2007 500,000,000
(e) Each reduction of the Facility A Commitments under paragraph (d) above
shall be applied against the Facility A Commitment of each Lender pro rata.
7.2 Voluntary cancellation
UPC Distribution may, by delivering to the Facility Agent a duly completed
Cancellation Notice not less than five Business Days prior to the due date
of cancellation, cancel the unutilised portion of the Total Facility A
Commitments and/or Total Facility B Commitments and/or Total Facility C
Commitments in whole or in part (but, if in part, in an aggregate minimum
amount of (Euro)10,000,000 (in the case of Facility A or Facility B) and an
aggregate minimum Original Euro Amount of (Euro)10,000,000 (in the case of
Facility C) in such proportions as UPC Distribution may specify in the
Cancellation Notice) on the date specified in the Cancellation Notice. Any
cancellation in part shall be applied against the relevant Facility A
Commitment, Facility B Commitment or, as the case may be, Facility C
Commitment of each Lender pro rata.
7.3 Voluntary prepayment
(a) UPC Distribution may, by delivering to the Facility Agent a duly completed
Cancellation Notice not less than five Business Days prior to the due date
of prepayment, prepay the whole or any part, (but if in part in an
aggregate minimum Original Euro Amount of (Euro)10,000,000) of the Advances
made to it under Facility A, Facility B or (subject to Clause 7.10(c)
(Facility C Call Protection)) Facility C.
(b) Any voluntary prepayment made under paragraph (a) above will be applied
(subject to Clause 7.10(c) (Facility C Call Protection)) against:
(i) Facility A, Facility B or Facility C in such proportions as may be
specified by UPC Distribution in the notice of prepayment;
(ii) (in the case of Facility A), against all the Facility A Advances pro
rata or against such Facility A Advances as UPC Distribution may
designate in the Cancellation Notice;
(iii) (in the case of Facility B or Facility C), pro rata against the
Repayment Instalments for Facility B or (as the case may be) Facility
C.
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47
7.4 Change of Control
(a) If:
(i) UGC ceases:
(1) directly or indirectly to own more than 50 per cent of the
issued share capital of UPC; and
(2) to Control UPC; or
(ii) after completion of the Approved Transaction, Liberty Media
Corporation together with one or more of its Associated Companies
does not or ceases to directly or indirectly own 10 per cent. or more
of the issued share capital of UPC from time to time; or
(iii) UPC does not or ceases to own, directly or indirectly through one or
more of its Subsidiaries or other persons Controlled by it, the legal
and beneficial interest in more than 50 per cent. of the voting and
economic rights attaching to the issued share capital of, or
otherwise ceases to Control, UPC Distribution Holdco, (except as a
result of a merger or consolidation of UPC Distribution Holdco with
or into a Shareholder, provided that such merger or consolidation is
in accordance with paragraph (b) below); or
(iv) in accordance with the terms of any share pledge in favour of the
Security Agent over the issued share capital of UPC Distribution and
UPC Holding II, UPC Distribution Holdco does not or ceases to own
directly (or indirectly through one or more of its Subsidiaries or
other persons Controlled by it, subject to such Subsidiary or person
complying with Clause 26.4(a) (Additional Guarantors)) the legal and
beneficial interest in 100 per cent. of the issued share capital of
UPC Distribution and UPC Holding II or otherwise ceases to Control
UPC Distribution and UPC Holding II; or
(v) in accordance with the terms of the share pledges in favour of the
Security Agent over the issued share capital of each of the Obligors
(other than UPC Distribution Holdco, UPC Holding II, the US Borrower
and UPC Distribution), UPC Distribution does not or ceases to own
directly or indirectly through one or more of its Subsidiaries or
other persons Controlled by it, the legal and beneficial interest in
at least 75 per cent. of the voting and economic rights attaching to
the issued share capital of any Obligor (other than UPC Distribution
Holdco, UPC Holding II, the US Borrower or UPC Distribution) or
otherwise ceases to Control such Obligor; or
(vi) UPC Distribution and UPC Holding II do not or cease to own, in
accordance with the terms of the pledge referred to in paragraph 2 of
Schedule 7 (Security Documents), the legal and beneficial interest in
100 per cent. of the partnership interests and economic rights
attaching to the partnership interests of, or otherwise ceases to
Control, the US Borrower,
(any of the events described in (i) to (vi) above being a "Change of
Control"):
(A) UPC Distribution shall promptly notify the Facility Agent upon
becoming aware of a Change of Control; and
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48
(B) if the Majority Lenders so require, the Facility Agent shall, by not
less than 20 Business Days' notice to UPC Distribution, cancel each
Facility and declare all outstanding Advances, together with accrued
interest and all other relevant amounts accrued under the Finance
Documents immediately due and payable, whereupon each Facility will be
cancelled and all such outstanding amounts will become immediately due
and payable.
(b) UPC Distribution Holdco shall not enter into a merger or consolidation with
or into a Shareholder (the resulting entity being the "UPC Merged Entity")
unless:
(A) reasonable details of the proposed merger concerning the matters set
out in paragraphs (B) to (C) below are provided to the Facility Agent
at least 10 days before the merger is to be entered into;
(B) the UPC Merged Entity will be liable for the obligations of UPC
Distribution Holdco (including the obligations under the Finance
Documents), which obligations will continue in full force and effect
after the merger, and entitled to the benefit of all rights of UPC
Distribution Holdco; and
(C) the UPC Merged Entity has entered into Security Documents (if
applicable) which provide security over the same assets of at least an
equivalent nature and ranking to the security provided by UPC
Distribution Holdco pursuant to any Security Documents entered into by
it and such Security Documents are the legal, valid and binding
obligations of the UPC Merged Entity enforceable in accordance with
their terms subject (to the extent applicable) to substantially
similar qualifications to those made in the legal opinions referred to
in Schedule 2.
7.5 Mandatory prepayment from Excess Cash Flow
(a) Subject to paragraph (b) below and Clause 7.7 (Date for prepayment), within
10 Business Days of the delivery of the Borrower Group's audited
consolidated financial statements which relate to any financial year of the
Borrower Group (starting with the annual Accounting Period ending 31st
December, 2004) under Clause 16.2 (Financial information) the Borrowers
(unless otherwise agreed in writing by the Facility Agent acting on the
instructions of the Majority Lenders) shall prepay, or procure that there
is prepaid, an amount of the Facilities equal to 50 per cent. of the Excess
Cash Flow for such financial year.
(b) The Borrowers shall not be required to make any prepayments under paragraph
(a) above:
(i) after the date on which the Facility Agent receives financial
statements delivered under Clause 16.2(b) (Financial information)
which show that, for the two most recent Ratio Periods, the ratio of
Senior Debt to Annualised EBITDA is less than or equal to 3.5:1; or
(ii) if the amount of Excess Cash Flow in respect of the relevant financial
year is less than (EURO)5,000,000.
7.6 Mandatory prepayment from disposal proceeds
(a) The Borrowers undertake (unless otherwise agreed in writing by the Facility
Agent acting on the instructions of the Majority Lenders), subject to the
terms of the Security Deed and Clause 7.7 (Date for prepayment), to apply
and to procure the application of the Net Proceeds of all disposals or the
cash equivalent thereof (other than disposals permitted under Clause
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49
16.10(b)(i) to (ix)(A) and (x) to (xiii) inclusive (Disposals)) made by any
member of the Borrower Group of assets comprising or contributing in
aggregate a percentage value in excess of (and only to the extent of such
excess):
(i) 20 per cent. of the total assets, revenues or EBITDA of the Borrower
Group (taken as a whole) in prepayment of the Facilities (or, if less
the amount of the Facilities) within 10 Business Days of receipt of
the relevant Net Proceeds by the relevant member(s) of the Borrower
Group; and
(ii) 10 per cent. (but not more than 20 per cent.) of the total assets,
revenues or EBITDA of the Borrower Group (taken as a whole) in
prepayment of the Facilities (or, if less the amount of the
Facilities) unless the entire amount of such Net Proceeds are, within
12 months of receipt, reinvested in the business of the Borrower
Group within 10 Business Days after the end of such 12-month period,
in which event the percentage value of such assets shall not be taken
into account for the purposes of this Clause 7.6.
(b) If the Net Proceeds of disposals of assets comprising or contributing in
aggregate a percentage value of 10 per cent. or less of the total assets,
revenues or EBITDA of the Borrower Group are either:
(i) reinvested in the business of the Borrower Group within 12 months of
receipt; or
(ii) deposited immediately with the Facility Agent and applied in
prepayment of the Facilities and reduction of the Total Facility A
Commitments, Total Facility B Commitments and Total Facility C
Commitments in accordance with the mechanics set out in Clauses 7.7
(Date for prepayment) and 7.8 (Order of application),
the percentage value of such assets shall not be taken into account for the
purposes of paragraph (a) above or Clause 16.10(b)(ix)(A) (Disposals).
(c) For the purposes of paragraphs (a) and (b) above and Clause 16.10(b)
(Disposals), "percentage value" of an asset disposed of means the
percentage of the total assets, revenues or EBITDA of the Borrower Group
(as the case may be) attributable to such asset in respect of the financial
year (in the case of revenues or EBITDA) or as at the end of the financial
year (in the case of total assets) immediately preceding the financial year
in which the asset is disposed of and for the avoidance of doubt, the value
of assets disposed of will be calculated on an increasing percentage basis
such that any percentage value will automatically be added to the
percentage value of any subsequent disposal. For the purpose of Clause
7.6(a) and this Clause 7.6(c), all calculations shall be by reference to
the annual consolidated financial statements of UPC Distribution or, as the
case may be, the annual combined financial statements of the Borrower Group
required to be produced pursuant to this Agreement.
7.7 Date for prepayment
Each amount to be prepaid under Clauses 7.5 (Mandatory prepayment from
Excess Cash Flow), 7.6 (Mandatory prepayment from disposal proceeds) and
17.4 (Cure provisions) shall be applied in prepayment of the Facility
within the period required by the relevant Clause or deposited before the
end of such period with the Security Agent or as the Security Agent may
reasonably direct in an account (or accounts) (each a "Blocked Account") in
the name of any Obligor bearing interest at rates customarily offered by
the Security Agent in such circumstances, secured (if requested by the
Security Agent) by a first ranking security interest in favour of the
Security Agent on behalf of the Beneficiaries, on terms that the principal
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50
amount so deposited may only be released by making the relevant prepayment
on Interest Dates falling immediately thereafter, in accordance with Clause
7.8 (Order of application) (where applicable), until the prepayment
obligations under Clauses 7.5 (Mandatory prepayment from Excess Cash Flow),
7.6 (Mandatory prepayment from disposal proceeds) and 17.4 (Cure
provisions) have been satisfied.
7.8 Order of application
Subject to Clause 7.10(c) (Facility C Call protection), the amount of each
prepayment of the Facilities made under Clauses 7.5 (Mandatory prepayment
from Excess Cash Flow) and Clause 7.6 (Mandatory prepayment from disposal
proceeds) shall be applied:
(a) first, pro rata between outstanding Facility B Advances and Facility C
Advances (and pro rata against the Repayment Instalments for Facility
B and Facility C respectively) with a corresponding permanent
cancellation of the Total Facility B Commitments and Total Facility C
Commitments (pro rata between the Commitments of the Lenders under the
relevant Facility); and
(b) second, against outstanding Facility A Advances (pro rata against all
Facility A Advances) with a corresponding permanent cancellation of
the Total Facility A Commitments, (pro rata between the Commitments of
the Lenders under that Facility) and a corresponding reduction of each
amount specified in column 2 of Clause 7.1(d) (Automatic Cancellation
of the Commitments) by the amount of each such prepayment.
7.9 Right of prepayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by a Borrower is required to be
increased under paragraph (c) of Clause 10.2 (Tax gross-up); or
(ii) any Lender claims indemnification from a Borrower under Clause 10.3
(Tax indemnity) or Clause 12.1 (Increased Costs),
UPC Distribution may, whilst the circumstance giving rise to the
requirement or indemnification continues, in respect only of the Facilities
made available to it, give the Facility Agent notice of cancellation of the
Facility A Commitment, Facility B Commitment, Facility C1 Commitment and/or
Facility C2 Commitment (as applicable) of that Lender and its intention to
procure the repayment of that Lender's participation in all relevant
Advances.
(b) On receipt of a notice referred to in paragraph (a) above, the Facility A
Commitment, Facility B Commitment, Facility C1 Commitment and/or Facility
C2 Commitment (as applicable) of that Lender shall each immediately be
reduced to zero.
(c) On the last day of each Interest Period which ends after a Borrower has
given notice under paragraph (a) above (or, if earlier, the date specified
by the relevant Borrower in that notice), the relevant Borrower shall repay
that Lender's participation in all relevant Advances.
(d) Prepayments made pursuant to this Clause 7.9 shall be applied against the
outstanding Facility A Advances and (in the case of Facility B Advances and
Facility C Advances) the outstanding Repayment Instalments pro rata.
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51
7.10 Facility C Call protection
(a) Upon any prepayment of Facility C Advances under this Clause 7 made up to
and including the Second Anniversary, the Borrowers shall pay to the
Facility Agent for distribution to Facility C Lenders:
(i) during the period commencing on the Signing Date to and including the
first Anniversary, a prepayment fee in respect of the principal amount
of such Advances so prepaid equal to 3 per cent. of such principal
amount; and
(ii) during the period following the first Anniversary up to and including
the second Anniversary, a prepayment fee in respect of the principal
amount of such Loans so prepaid equal to 1.5 per cent. of such
principal amount.
(b) In the event that:
(i) the Lenders, the Majority Lenders or the Facility C Lenders (as
applicable) agree to modify or waive any of the provisions of this
Agreement and, as a result thereof, a prepayment that would otherwise
have been required under this Clause 7 shall not be made; or
(ii) on receipt by the Facility Agent of a notice under Clause 7.4(a)(A)
(Change of Control) notifying it of a Change of Control, the Majority
Lenders agree not to require the cancellation of the Facility and
prepayment of all outstanding amounts under the Finance Documents,
the Borrowers shall nevertheless pay to all the Facility C Lenders a fee
equal to the amount of prepayment fee that would otherwise have been paid
under paragraph (a) above had such prepayment occurred. This fee is in
addition to any further prepayment fee under paragraph (a) above that may
be payable on any subsequent prepayment of the relevant amount.
(c) Subject to paragraph (b), prior to the repayment or prepayment in full of
all outstanding Facility B Advances, the Facility C Lenders may elect not
to accept prepayments of Facility C Advances under Clause 7.3 (Voluntary
prepayment), 7.5 (Mandatory prepayment from Excess Cash Flow) or 7.6
(Mandatory prepayment from disposal proceeds). In the event of such
election any amounts which would otherwise have been applied in prepayment
of Facility C Advances shall not, unless UPC Distribution so elects, be
applied in prepayment of Facility A Advances or Facility B Advances but may
be retained by the Borrowers for use in the business of the Borrower Group.
7.11 Miscellaneous provisions
(a) Any Cancellation Notice delivered under this Agreement is irrevocable. The
Facility Agent shall notify the Lenders promptly of receipt of any such
notice.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and any other amounts due under this
Agreement in respect of that prepayment and, subject to Clause 7.10
(Facility C Call protection) and Clause 23.4 (Break Costs) without premium
or penalty.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
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52
(d) The amount of any Facility A Advance prepaid by UPC Distribution in
accordance with Clause 7.3 (Voluntary prepayment) or Clause 17.4 (Cure
Provisions) may, subject to the terms of this Agreement, be re-borrowed. No
other amount prepaid under this Agreement may subsequently be re-borrowed.
(e) No amount of any Commitment cancelled under this Agreement may subsequently
be reinstated.
(f) Any prepayment in part of any Advance shall be applied against the
participations of the Lenders in that Advance pro rata.
(g) Any cancellation or prepayment in relation to Facility C shall be applied
pro rata between Facility C1 Commitments and Facility C2 Commitments or (as
the case may be) Facility C1 Advances and Facility C2 Advances according to
their respective Original Euro Amounts.
8. INTEREST
8.1 Interest rate
The rate of interest on each Advance for its Interest Period is the rate
per annum determined by the Facility Agent to be the aggregate of:
(a) the applicable Margin; and
(b) (i) LIBOR (in the case of an Advance denominated in a currency other
than euros); or
(ii) EURIBOR (in the case of an Advance denominated in euros); and
(c) the Mandatory Costs.
8.2 Selection of Interest Periods
(a) The Interest Period (in the case of each Facility A Advance) or the first
Interest Period (in the case of each Facility B Advance or Facility C
Advance) of each Advance will be the period selected in the Request for
that Advance and (in the case of each Facility B Advance or Facility C
Advance) each subsequent Interest Period will be the period selected by the
relevant Borrower by notice (a "Selection Notice") to the Facility Agent
received not later than the third Business Day before the end of the then
current Interest Period.
(b) Each Interest Period shall (save as provided in Clause 2.4 (Syndication
period)) be one month, two, three or six months or in any case such other
period not exceeding six months as the relevant Borrower and the Facility
Agent may agree from time to time. Each Interest Period for an Advance will
commence on its Utilisation Date or (in the case of each subsequent
Interest period for a Facility B Advance or Facility C Advance) the expiry
of its preceding Interest Period.
(c) Each Facility A Advance will have only one Interest Period.
<PAGE>
53
8.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
8.4 Further Adjustments to Interest Periods
If an Interest Period:
(a) for a Facility A Advance would otherwise overrun the Facility A Final
Maturity Date, it shall be shortened so that it ends on the Facility A
Final Maturity Date;
(b) for a Facility B Advance would otherwise overrun the Facility B Final
Repayment Date, it shall be shortened so that it ends on the Facility
B Final Repayment Date; and
(c) for a Facility C Advance would otherwise overrun the Facility C Final
Repayment Date, it shall be shortened so that it ends on the Facility
C Final Repayment Date.
8.5 Other adjustments
The Facility Agent and the Borrowers may enter into such other arrangements
as they may agree for the adjustment of Interest Periods and the
consolidation and/or splitting of Advances.
8.6 Notification
The Facility Agent shall notify the relevant Borrower and the Lenders of
the duration of each Interest Period promptly after ascertaining its
duration.
8.7 Due dates
Except as otherwise provided in this Agreement, accrued interest on each
Advance is payable by the relevant Borrower on its Interest Date and also,
in the case of:
(a) any Facility A Advance or Facility B Advance with an Interest Period
longer than six months, at six monthly intervals after the first day
of that Interest Period for so long as the Interest Period continues;
and
(b) in the case of any Facility C Advance with an Interest Period longer
than three months, at three monthly intervals after the first day of
that Interest Period for so long as the Interest Period continues.
8.8 Default interest
(a) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it shall forthwith on demand by the Facility Agent pay interest
on the overdue amount from the due date up to the date of actual payment,
both before and after judgment, at a rate (the "default rate") determined
by the Facility Agent to be two per cent. per annum above the rate which
would have been payable if the Unpaid Sum had, during the period of non-
payment, constituted an Advance at the Margin applicable to a new Facility
A Advance or (if the Unpaid Sum relates to an overdue amount payable under
or in connection with Facility C) a new Facility C Advance if it had been
drawn down at such time in the currency of the Unpaid
<PAGE>
54
Sum for such successive Interest Periods of such duration (not being more
than three months) as the Facility Agent may determine, having regard to
the likely duration of the default (a "Designated Term").
(b) The default rate will be determined on each Business Day or the first day
of, or two Business Days before the first day of, the relevant Designated
Term, as appropriate.
(c) Default interest will be compounded at the end of each Designated Term.
8.9 Notification of rates of interest
The Facility Agent will promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
8.10 Margin
(a) The Margin will be:
(i) in the case of a Facility A Advance or Facility B Advance, 2.75 per
cent. per annum until the first Anniversary and thereafter shall be
2.50 per cent. per annum unless adjusted in accordance with the
following provisions of this Clause 8.10; and
(ii) in the case of a Facility C Advance, 4.00 per cent. per annum.
(b) Commencing with the first Anniversary (by reference, in the case of the
first Anniversary, to the Relevant Financial Statements delivered for the
most recent financial quarter to end prior to the first Anniversary) UPC
Distribution will deliver to the Facility Agent (by no later than the date
of the first Anniversary or, as the case may be, the date it delivers to
the Facility Agent each subsequent set of Relevant Financial Statements) a
notice referring to this Clause 8.10 (a "Margin Notice") and specifying the
ratio of Senior Debt to Annualised EBITDA as calculated in accordance with
Clause 17 (Financial Covenants) as at the date to which the Relevant
Financial Statements were prepared for the purposes of calculating whether
the Margin for Facility A Advances and Facility B Advances is to be
adjusted in accordance with this Clause 8.10.
(c) The Margin for Facility A Advances and Facility B Advances will be adjusted
(upwards or downwards) to the percentage rates per annum set out in column
1 below set opposite the range set out in column 2 below into which the
ratio of Senior Debt to Annualised EBITDA, as shown in the Margin Notice,
falls:
<TABLE>
<CAPTION>
(1) (2)
Margin Senior Debt/
Annualised EBITDA ratio
<S> <C>
2.50% 7.00:1
2.00% 6.00:1 but * 7.00:1
1.50% 5.00:1 but * 6.00:1
1.25% 4.00:1 but * 5.00:1
1.00% 3.00:1 but * 4.00:1
0.75% * 3.00:1
</TABLE>
* = Less Than
<PAGE>
55
(d) The adjustment (if any) specified in (c) above will apply to the Margin for
all Facility A Advances and Facility B Advances with effect from the date
falling five Business Days after the relevant Margin Notice (or, if later,
the related Relevant Financial Statements) is delivered to the Facility
Agent.
(e) If UPC Distribution fails to deliver a Margin Notice in accordance with
paragraph (b) above the Margin with effect from the last date permitted for
delivery of the Relevant Financial Statements will be as stated in
paragraph (a) above provided that if that Margin Notice is delivered later,
the Margin will be adjusted in accordance with this Clause 8.10 with effect
from the date falling five Business Days after the Margin Notice (or, if
later, the related Relevant Financial Statements) is delivered.
(f) In this Clause 8.10, "Relevant Financial Statements" means each set of
quarterly financial statements delivered under Clause 16.2(b) (Financial
information).
9. PAYMENTS
9.1 Place of Payment
All payments by an Obligor or a Lender under this Agreement shall be made
to the Facility Agent to its account at such office or bank in the
principal financial centre of the country of the currency concerned (or, in
the case of euros, the financial centre of such of the Participating Member
States or London) as the Facility Agent may notify to the Obligor or Lender
for this purpose.
9.2 Funds
Payments under this Agreement to the Facility Agent shall be made for value
on the due date at such times and in such funds as the Facility Agent may
specify to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
9.3 Distribution
(a) Each payment received by the Facility Agent under this Agreement for
another Party shall, subject to paragraphs (b) and (c) below, be made
available by the Facility Agent to that Party by payment (on the date of
value of receipt and in the currency and funds of receipt) to its account
with such bank in the principal financial centre of the country of the
relevant currency (or, in the case of euros, in the principal financial
centre of such of the Participating Member States or London) as it may
notify to the Facility Agent for this purpose by not less than five
Business Days' prior notice.
(b) The Facility Agent may apply any amount received by it for an Obligor in or
towards payment (on the date and in the currency and funds of receipt) of
any amount due from an Obligor under this Agreement in the same currency on
such date or in or towards the purchase of any amount of any currency to be
so applied.
(c) Where a sum is to be paid under this Agreement to the Facility Agent for
the account of another Party, the Facility Agent is not obliged to pay that
sum to that Party until it has established that it has actually received
that sum. The Facility Agent may, however, assume that the sum has been
paid to it in accordance with this Agreement and, in reliance on that
assumption, make available to that Party a corresponding amount. If the sum
has not been made available but the Facility Agent has paid a corresponding
amount to another Party, that
<PAGE>
56
Party shall forthwith on demand refund the corresponding amount to the
Facility Agent together with interest on that amount from the date of
payment to the date of receipt, calculated at a rate reasonably determined
by the Facility Agent to reflect its cost of funds.
9.4 Currency
(a) A repayment or prepayment of an Advance is payable in the currency in which
the Advance is denominated.
(b) All interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses, Taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under this Agreement is, except as otherwise
provided in this Agreement, payable in euros or, to the extent it relates
to Facility C2, US Dollars.
9.5 Set-off and counterclaim
All payments made by an Obligor under this Agreement shall be made without
set-off or counterclaim.
9.6 Non-Business Days
(a) If a payment under this Agreement is due on a day which is not a Business
Day, the due date for that payment shall instead be the next Business Day
in the same calendar month (if there is one) or the preceding Business Day
(if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on the principal at the rate payable on
the original due date.
9.7 Partial payments
(a) Subject to the Security Deed, if the Facility Agent receives a payment
insufficient to discharge all the amounts then due and payable by an
Obligor under this Agreement, the Facility Agent shall apply that payment
towards the obligations of the Obligors under this Agreement in the
following order:
(i) first, in or towards payment pro rata of any unpaid costs, fees and
expenses of the Facility Agent under this Agreement;
(ii) secondly, in or towards payment pro rata of any accrued fees (other
than any commitment fees payable under Clause 20.1 (Commitment fee))
due but unpaid under Clause 20 (Fees);
(iii) thirdly, in or towards payment to the Lenders pro rata of any
accrued interest and commitment fees due but unpaid under this
Agreement;
(iv) fourthly, in or towards payment to the Lenders pro rata of any
principal due but unpaid under this Agreement; and
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57
(v) fifthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) Subject to the Security Deed, the Facility Agent shall, if so directed by
all of the Lenders, vary the order set out in sub-paragraphs (a)(ii) to (v)
above. The Facility Agent shall notify UPC Distribution of any such
variation.
(c) Paragraphs (a) and (b) above shall override any appropriation made by any
Obligor.
10. Tax Gross-up and Indemnities
10.1 Definitions
(a) In this Clause 10:
"Protected Party" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment in
relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.
"Tax Credit" means a credit against, relief or remission for, or repayment
of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"Tax Payment" means an increased payment made by an Obligor to a Finance
Party under Clause 10.2 (Tax gross-up) or a payment under Clause 10.3 (Tax
indemnity).
"Treaty Lender" means a Lender which is (on the date a payment falls due),
entitled to that payment under a double taxation agreement in force on the
date (subject to the completion of any necessary procedural formalities)
without a Tax Deduction.
(b) In this Clause 10 a reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination.
10.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(b) UPC Distribution or a Lender shall promptly upon becoming aware that an
Obligor must make a Tax Deduction (or that there is any change in the rate
or the basis of a Tax Deduction) notify the Facility Agent accordingly. If
the Facility Agent receives such notification from a Lender it shall notify
UPC Distribution and that Obligor.
(c) Subject to Clause 10.5 (U.S. Taxes), if a Tax Deduction is required by law
to be made by an Obligor, the amount of the payment due from that Obligor
shall be increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due if no Tax
Deduction had been required.
(d) If an Obligor is required to make a Tax Deduction, that Obligor shall make
that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law.
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58
(e) Within thirty days of making either a Tax Deduction or any payment required
in connection with that Tax Deduction, the Obligor making that Tax
Deduction shall deliver to the Facility Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
(f) A Treaty Lender and each Obligor which makes a payment to which that Treaty
Lender is entitled shall co-operate and use its reasonable efforts to
complete any procedural formalities and provide any information, in each
case on a timely basis, necessary for that Obligor to obtain authorisation
to make that payment without a Tax Deduction (or with a reduced rate of
such Tax Deduction).
10.3 Tax indemnity
(a) The Obligors shall (within three Business Days of demand by the Facility
Agent) pay to a Protected Party an amount equal to the loss, liability or
cost which that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax assessed on:
(i) a Finance Party:
(A) under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as resident
for tax purposes; or
(B) under the law of the jurisdiction in which that Finance Party's
Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party; or
(ii) the Facility Agent, as a result of the failure by a Lender to satisfy
on the due date of a payment of interest either of the conditions set
out in paragraphs (A) and (B) of Clause 19.16(b) (Lenders).
(c) A Protected Party making or intending to make a claim pursuant to paragraph
(a) above shall promptly notify the Facility Agent in writing of the event
which will give, or has given, rise to the claim, including details of the
nature of the Tax due or paid by that Protected Party, following which the
Facility Agent shall promptly provide such information to UPC Distribution.
(d) A Protected Party shall, on receiving a payment from an Obligor under this
Clause 10.3, notify the Facility Agent.
10.4 Tax Credit
(a) If an Obligor makes a Tax Payment and the relevant Finance Party determines
that:
(i) a Tax Credit is attributable to that Tax Payment; and
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59
(ii) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by the
Obligor.
(b) No provision of this Agreement shall:
(i) interfere with the right of any Finance Party to arrange its tax or
any other affairs in whatever manner it thinks fit or oblige any
Finance Party to claim any credit, relief, remission or repayment in
respect of any payment of Tax in priority to any other credit, relief,
remission or repayment available to it, except that the Finance
Party's sole reason (acting in good faith) for not claiming or for
deferring such credit, relief, remission or repayment shall not be its
obligation to make a payment under this Clause 10.4; or
(ii) oblige any Finance Party to disclose any information relating to its
Tax or other affairs or any computations in respect thereof.
10.5 U.S. Taxes
The US Borrower shall not be required to pay any additional amount pursuant
to Clause 10.2 (Tax gross-up) in respect of United States Taxes (including,
without limitation, federal, state, local or other income Taxes), branch
profits or franchise Taxes with respect to a sum payable by it pursuant to
this Agreement to a Lender if:
(a) on the date such Lender becomes a Party to this Agreement or has
designated a new Facility Office either:
(i) in the case of a Lender which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code), such
Lender is not entitled to submit a Form 1001 or Form W-8
(relating to such Lender and claiming a complete exemption from
withholding on interest payable pursuant to this Agreement) (or
successor forms including a Form W-8BEN) or a Form 4224 (or
successor forms including a Form W-8EC1) with respect to interest
payable pursuant to this Agreement; or
(ii) such Lender is subject to such tax by reason of any connection
between the jurisdiction imposing such tax and the Lender or its
Facility Office other than a connection arising solely from this
Agreement or any transaction contemplated hereby; or
(b) such Lender has (unless the US Borrower failed to complete any
procedural formalities or provide any information referred to in
Clause 10.2(f) (Tax gross-up)) failed to submit any form, certificate
or other information with respect to such sum payable that it was
required and is entitled to file under applicable law in order to
avoid the payment of the relevant Taxes.
10.6 Value added tax
(a) All consideration payable under a Finance Document by an Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Obligor shall, following
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60
delivery of a VAT invoice, pay to the Finance Party (in addition to and at
the same time as paying the consideration) an amount equal to the amount of
the VAT.
(b) Where a Finance Document requires an Obligor to reimburse a Finance Party
for any costs or expenses, that Obligor shall also at the same time pay and
indemnify that Finance Party against all VAT incurred by that Finance Party
in respect of the costs or expenses save to the extent that that Finance
Party is entitled to repayment or credit in respect of the VAT.
11. MARKET DISRUPTION
11.1 Absence of quotations
Subject to Clause 11.2 (Market disruption), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by noon on the Rate Fixing Day,
the applicable LIBOR or EURIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks.
11.2 Market disruption
(a) If a Market Disruption Event occurs in relation to an Advance for any
Interest Period, then the rate of interest on each Lender's share of that
Advance for the Interest Period shall be the rate per annum which is the
sum of:
(i) the Margin;
(ii) the rate notified to the Facility Agent by that Lender as soon as
practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding its
participation in that Advance from whatever source it may reasonably
select; and
(iii) the Mandatory Cost.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Rate Fixing Day for the relevant Term or
Interest Period the Screen Rate is not available and none or only
one of the Reference Banks supplies a rate to the Facility Agent to
determine LIBOR or, if applicable, EURIBOR for the relevant currency
and period; or
(ii) before close of business in London on the Rate Fixing Day for the
relevant Interest Period, the Facility Agent receives notifications
from a Lender or Lenders (whose participations in an Advance
aggregate not less than one-third of that Advance) that the cost to
it of obtaining matching deposits in the London Interbank Market or,
as the case may be, the European Interbank Market would be in excess
of LIBOR or, if applicable, EURIBOR.
11.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Facility Agent or UPC
Distribution so requires, the Facility Agent and UPC Distribution shall
enter into negotiations (for a period of not more than thirty days) with a
view to agreeing a substitute basis for determining the rate of interest.
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61
(b) Any alternative basis agreed pursuant to paragraph (a) above shall, with
the prior consent of all the Lenders and UPC Distribution, be binding on
all Parties.
11.4 Revocation of currency
If before 9.30 a.m. on any Rate Fixing Day, the Facility Agent receives
notice from a Lender that:
(a) it is impracticable for the Lender to fund its participation in an
Advance in the relevant Optional Currency during that Interest Period
in the ordinary course of business in the London or (in the case of
euro) European Interbank Market; and/or
(b) the use of the proposed Optional Currency might contravene any law or
regulation,
the Facility Agent shall give notice to UPC Distribution and to the Lenders
to that effect before 11.00 a.m. on that day. In this event:
(i) UPC Distribution and the Lenders may agree that the drawdown will not
be made; or
(ii) in the absence of agreement:
(1) that Lender's participation in the Advance (or, if more than one
Lender is similarly affected, those Lender's participations in
the Advance) shall be treated as a separate Advance denominated
in euros (in the case of a Facility A Advance, Facility B Advance
or Facility C1 Advance) or Dollars (in the case of a Facility C2
Advance) during the relevant Interest Period;
(2) in the definitions of "LIBOR" or, as applicable, "EURIBOR",
(insofar as it applies to that Advance) in Clause 1.1
(Definitions):
(A) there shall be substituted for the time "11.00 a.m." the
time "1.00 p.m."; and
(B) paragraph (c) of the relevant definition shall apply.
12. INCREASED COSTS
12.1 Increased Costs
(a) Subject to Clause 12.3 (Exceptions) the Borrowers shall, within three
Business Days of a demand by the Facility Agent, pay to the Facility Agent
for the account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Holding Companies as a result
of (i) the introduction of or any change in (or in the interpretation or
application of) any law or regulation after the Signing Date or (ii)
compliance with any law or regulation made after the Signing Date.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facilities or on a
Finance Party's (or any of its Holding Companies') overall capital;
(ii) an additional or increased cost; or
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62
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its Holding
Companies to the extent that it is attributable to that Finance Party
having entered into its Commitment or funding or performing its obligations
under any Finance Document.
12.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 12.1
(Increased Costs) as soon as is reasonably practicable after that Finance
Party becomes aware that circumstances have arisen which entitle it to make
such claim, shall notify the Facility Agent of the event giving rise to the
claim, following which the Facility Agent shall promptly notify UPC
Distribution.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Facility Agent, provide a certificate confirming the amount of its
Increased Costs.
12.3 Exceptions
(a) Clause 12.1 (Increased Costs) does not apply to the extent any Increased
Cost is:
(i) attributable to a Tax Deduction required by law to be made by an
Obligor;
(ii) compensated for by Clause 10.3 (Tax indemnity) (or would have been
compensated for under Clause 10.3 (Tax indemnity) but was not so
compensated solely because one of the exclusions in paragraph (b) of
Clause 10.3 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance Party or
any of its Holding Companies of any law or regulation.
(b) In this Clause 12.3, a reference to a "Tax Deduction" has the same meaning
given to the term in Clause 10.1 (Definitions).
13. ILLEGALITY AND MITIGATION
13.1 Illegality
If it is or will become unlawful in any applicable jurisdiction for a
Lender to give effect to any of its obligations as contemplated by this
Agreement or to fund or allow to remain outstanding all or part of its
participation in any Advance:
(a) that Lender shall promptly notify the Facility Agent upon becoming
aware of the same;
(b) upon the Facility Agent notifying UPC Distribution, the Commitment
of that Lender will be immediately cancelled; and
(c) if the Facility Agent on behalf of such Lender requires, the
relevant Borrower or Borrowers shall repay that Lender's
participation in any Advance made to that Borrower on the last day
of the Interest Period for each Advance occurring after the Facility
Agent has notified UPC Distribution or, if earlier, the date
specified by the
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63
Lender in the notice delivered to the Facility Agent (being no earlier
than the last day of any applicable grace period permitted by law).
13.2 Mitigation
(a) Each Finance Party shall, in consultation with UPC Distribution, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount (including without limitation, VAT) becoming payable
under, or cancelled pursuant to, any of Clause 10 (Tax Gross-up and
Indemnities), Clause 12 (Increased Costs) or Clause 13.1 (Illegality)
including (but not limited to) transferring its rights and obligations
under the Finance Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
13.3 Limitation of Liability
(a) The Borrowers shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 13.2 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 13.2
(Mitigation) if, in the opinion of that Finance Party (acting reasonably),
to do so might be prejudicial to it.
14. GUARANTEE
14.1 Guarantee and indemnity
In consideration of the Finance Parties entering into this Agreement and,
where applicable, the other Finance Documents and performing their
obligations thereunder and the Senior Hedging Banks and the High Yield
Hedging Banks from time to time entering into the Senior Hedging Agreements
and the High Yield Hedging Agreements respectively, each Guarantor
irrevocably and unconditionally, jointly and severally:
(a) guarantees to each Finance Party and the Security Agent on behalf of
the Beneficiaries punctual performance by each Borrower and UPC of all
their respective obligations under the Guaranteed Documents;
(b) undertakes with each Finance Party and the Security Agent on behalf of
the Beneficiaries that whenever a Borrower or UPC does not pay any
amount when due under or in connection with any Guaranteed Document,
that Guarantor shall immediately on demand pay that amount as if it
was the principal obligor; and
(c) indemnifies each Finance Party and the Security Agent on behalf of the
Beneficiaries immediately on demand against any cost, loss or
liability suffered by that Finance Party or Beneficiary if any
obligation guaranteed by it is or becomes unenforceable, invalid or
illegal. The amount of the cost, loss or liability shall be equal to
the amount which that Finance Party or Beneficiary would otherwise
have been entitled to recover.
Any demand issued to a Guarantor under this Clause 14.1 shall be copied to
UPC Distribution at the same time as it is issued to the relevant
Guarantor, provided that failure to do so shall not affect the validity or
effectiveness of the demand or the obligations of the Guarantor under this
Clause 14 (Guarantee).
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14.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor or UPC under the Guaranteed
Documents, regardless of any intermediate payment or discharge in whole or
in part.
14.3 Reinstatement
If any payment by an Obligor or UPC or any discharge given by a Beneficiary
(whether in respect of the obligations of any Obligor or UPC or any
security for those obligations or otherwise) is avoided or reduced as a
result of insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Beneficiary shall be entitled to recover the value or amount of
that security or payment from each Obligor, as if the payment,
discharge, avoidance or reduction had not occurred.
14.4 Waiver of defences
The obligations of each Guarantor under this Clause 14 will not be affected
by any act, omission, matter or thing which, but for this Clause, would
reduce, release or prejudice any of its obligations under this Clause 14
(without limitation and whether or not known to it or any Beneficiary)
including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or UPC or other person;
(b) the release of any other Obligor or UPC or any other person under the
terms of any composition or arrangement with any creditor of any
member of the Borrower Group or UPC;
(c) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any Obligor or UPC or other person or any
non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the
full value of any security;
(d) any incapacity or lack of power, authority or legal personality of, or
dissolution or change in, the members or status of an Obligor or UPC
or any other person;
(e) any amendment (however fundamental) or replacement of a Guaranteed
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of
any person under any Guaranteed Document or any other document or
security; or
(g) any insolvency or similar proceedings.
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14.5 Immediate recourse
None of the Beneficiaries shall be obliged to make any claim or demand on
the Borrowers or UPC or to resort to any security document or other means
of payment now or hereafter held by or available to them or it before
enforcing its rights under this Clause 14 and no action taken or omitted by
any of the Beneficiaries in connection with any such security document or
other means of payment shall discharge, reduce, prejudice or affect the
liability of any Guarantor under this Clause 14 nor shall any of the
Beneficiaries be obliged to apply any money or other property received or
recovered in consequence of any enforcement or realisation of any such
Security Document or other means of payment in reduction of the obligations
and liabilities expressed to be guaranteed by the Guarantors pursuant to
this Clause 14.
14.6 Appropriations
Until all amounts which may be or become payable by the Obligors and UPC
under or in connection with the Guaranteed Documents have been irrevocably
paid in full, each Beneficiary (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Beneficiary (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
(b) hold in an interest-bearing suspense account any moneys received from
any Guarantor or on account of any Guarantor's liability under this
Clause 14.
14.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Obligors and UPC
under or in connection with the Guaranteed Documents have been irrevocably
paid in full (and notwithstanding payment of a dividend in any liquidation
or under any compromise or arrangement) each Guarantor agrees that, without
the prior written consent of the Facility Agent, it will not:
(a) exercise its rights of subrogation, reimbursement and indemnity
against any other Obligor or UPC or any other person liable; or
(b) demand or accept any security to be executed in respect of any of its
obligations under this guarantee or any other indebtedness now or
hereafter due to such Guarantor from any other member of the Borrower
Group or UPC or from any other person liable; or
(c) take any step or enforce any right against any Obligor or UPC or any
other person liable in respect of any obligations and liabilities
expressed to be guaranteed by the Guarantors pursuant to this Clause
14; or
(d) exercise any right of set-off or counterclaim against any other
Obligor or UPC or any other person liable or claim or prove or vote as
a creditor in competition with any of the Beneficiaries in the
bankruptcy, liquidation, administration or other insolvency proceeding
of any other Obligor or UPC or any other person liable or have the
benefit of, or share in, any payment from or composition with, any
other Obligor or UPC or
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any other person liable or any other security document now or
hereafter held by any of the Beneficiaries for the obligations and
liabilities expressed to be guaranteed by the Guarantors pursuant to
this Clause 14 or for the obligations or liabilities of any other
person liable, but so that, if so directed by the Facility Agent, it
will prove for the whole or any part of its claim in the liquidation
of any other Obligor or UPC, as the case may be, on terms that the
benefit of such proof and of all money received by it in respect
thereof shall immediately be transferred to an account to be
designated by the Security Agent for the Beneficiaries and applied in
or towards discharge of the obligations and liabilities expressed to
be guaranteed by the Guarantors pursuant to this Clause 14 in
accordance with the Security Deed.
14.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Beneficiary.
14.9 Limitation
Notwithstanding any other provision of this Clause 14, the obligations of
each US Guarantor under this Clause 14, shall be limited to a maximum
aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Bankruptcy
Code, any applicable provisions of comparable state law or any applicable
case law (collectively, the "Fraudulent Transfer Laws"), in each case
after giving effect to all other liabilities of such US Guarantor,
contingent or otherwise, that are relevant under the Fraudulent Transfer
Laws and after giving effect as assets to the value (as determined under
the applicable provisions of the Fraudulent Transfer Laws) of any rights
to subrogation, contribution, reimbursement, indemnity or similar rights
of such US Guarantor pursuant to (i) applicable law or (ii) any agreement
providing for an equitable allocation among such US Guarantors and other
Affiliates of the Borrower Group of the obligations arising under
guarantees by such parties.
For the purposes of this Clause 14.9, "US Guarantor" means each Guarantor
incorporated (or in the case of a non-corporate Guarantor, formed and
subsisting) in the United States of America (or any of its states or
territories or any political or legal subdivision thereof).
15. REPRESENTATIONS AND WARRANTIES
15.1 Representations and warranties
(a) Subject to paragraphs (b), each Obligor makes the representations and
warranties set out in this Clause 15, in respect of itself and (where
applicable) its Subsidiaries which are members of the Borrower Group,
other than:
(i) Clauses 15.9 (Accounts), 15.10 (Financial condition) and 15.14
(Information), which shall only be made by UPC Distribution; and
(ii) Clause 15.24 (US Borrower), which shall only be made by the US
Borrower, to each Finance Party.
(b) UPC Distribution Holdco does not make the representations and warranties
set out in Clauses 15.6(b) or (c) (Consents), 15.7 (Material Contracts),
15.9 (Accounts), 15.10 (Financial condition), 15.11 (Environmental),
15.13(a) (Litigation and insolvency provisions), 15.14
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(Information), 15.15 (Tax liabilities), 15.16 (Ownership of assets), 15.17
(Intellectual Property Rights), 15.19 (Borrower Group structure) and 15.24
(US Borrower).
15.2 Status
(a) It is a corporation, duly incorporated and validly existing under the laws
of its place of incorporation and, in the case of the US Borrower only, it
is a Delaware general partnership duly formed and wholly existing under
the laws of its place of formation.
(b) It has the power to own its assets and carry on its business as it is
being conducted.
15.3 Powers and authority
It has the power:
(a) to enter into and comply with all obligations expressed on its part
under the Finance Documents; and
(b) (in the case of a Borrower) to borrow under this Agreement; and
(c) (in the case of a Guarantor) to give the guarantee in Clause 14
(Guarantee), and has taken all necessary actions to authorise the
execution, delivery and performance of the Finance Documents to which
it is a party.
15.4 Legal validity
(a) Each Finance Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute, its legal,
valid and binding obligations enforceable, subject to any relevant
reservations or qualifications as to matters of law contained in any legal
opinion referred to in paragraph 3 of Part I of Schedule 2 or (as
applicable) paragraph 12 of Part II of Schedule 2, in accordance with its
terms.
(b) The choice of English law as the governing law of the Finance Documents
and its irrevocable submission to the jurisdiction of the courts of
England in respect of any proceedings relating to the Finance Documents
(in each case other than any Finance Document which is expressly to be
governed by a law other than English law) will be recognised and enforced
in its jurisdiction of incorporation, subject to any relevant reservation
or qualification as to matters of law contained in any legal opinion
referred to in paragraph (a) above.
(c) Any judgment obtained in England in relation to a Finance Document (in
each case other than any Security Document which is expressly to be
governed by a law other than English law) will be recognised and enforced
in its jurisdiction of incorporation, subject to any relevant reservation
or qualification as to matters of law contained in any legal opinion
referred to in paragraph (a) above.
15.5 Non-violation
The execution and delivery by it of, the Finance Documents to which it is
a party, and its performance of the transactions contemplated thereby,
will not violate:
(a) in any material respect, any law or regulation or official judgment
or decree applicable to it;
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(b) in any material respect, its constitutional documents; or
(c) any agreement or instrument to which it is a party or binding on any
of its assets or binding upon any other member of the Borrower Group
or any other member of the Borrower Group's assets, where such
violation would or is reasonably likely to have a Material Adverse
Effect.
15.6 Consents
(a) Subject to any relevant reservations or qualifications contained in any
legal opinion referred to in Clause 15.4(a) (Legal validity) above, all
material and necessary authorisations, registrations, consents, approvals,
licences (other than the Licences), and filings required by it in
connection with the execution, validity or enforceability of the Finance
Documents to which it is a party and performance of the transactions
contemplated by the Finance Documents have been obtained (or, if
applicable, will be obtained within the required time period) and are
validly existing.
(b) (i) The Licences that each member of the Borrower Group has secured are
those necessary for it to carry on its business.
(ii) Such Licences are in full force and effect and each member of the
Borrower Group is in compliance in all material respects with all
provisions thereof such that the Licences are not the subject of any
pending or, to the best of its knowledge, threatened attack,
suspension or revocation by a competent authority except, in each
case, to the extent that any lack of effect, non-compliance or
attack, suspension or revocation of a Licence would not have or be
reasonably likely to have a Material Adverse Effect.
(c) All the Necessary Authorisations are in full force and effect, each member
of the Borrower Group is in compliance in all material respects with all
provisions thereof and the Necessary Authorisations are not the subject of
any pending or, to the best of its knowledge, threatened attack or
revocation by any competent authority except, in each case, to the extent
that any lack of effect, non-compliance or attack or revocation of a
Necessary Authorisation would not have or be reasonably likely to have a
Material Adverse Effect.
15.7 Material Contracts
(a) Each Material Contract to which any member of the Borrower Group is a
party constitutes, or will when executed constitute, the legal, valid and
binding obligation of such member, subject to the application of any
relevant insolvency, bankruptcy or similar laws or other laws affecting
the interests of creditors generally, enforceable against it in accordance
with its terms.
(b) No member of the Borrower Group is in breach of any of its material
obligations under any Material Contract to which such member is a party,
nor (to the best of its knowledge and belief), is any other party thereto,
in each case in such a manner or to such an extent as would or is
reasonably likely to have a Material Adverse Effect. To the best of its
knowledge and belief there is no material dispute between any member of
the Borrower Group and any other party to a Material Contract and there
have been no amendments to any Material Contract in the form provided to
the Facility Agent prior to the date of this Agreement which would or is
reasonably likely to have a Material Adverse Effect.
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15.8 No default
(a) No Event of Default has occurred and is continuing or will result from
the making of any Advance.
(b) None of it or any other member of the Borrower Group is in default under
any law, regulation or agreement to which it is subject, except for a
default which will not have or be reasonably likely to have a Material
Adverse Effect.
15.9 Accounts
The consolidated financial statements of it and the Borrower Group most
recently delivered to the Facility Agent (which, at the date of this
Agreement are the Original Borrower Group Financial Statements):
(a) present a true and fair view of (in the case of audited financial
statements) or fairly present (in the case of unaudited financial
statements) its financial position and the consolidated financial
position of the Borrower Group respectively as at the date to which
they were drawn up; and
(b) have been prepared in all material respects in accordance with GAAP
(except that such consolidated financial statements do not include
all consolidated Subsidiaries to the extent they are Unrestricted
Subsidiaries).
15.10 Financial condition
There has been no material adverse change in the consolidated financial
position of the Borrower Group (taken as a whole) since the date of the
Original Borrower Group Financial Statements which would or is reasonably
likely to have a Material Adverse Effect.
15.11 Environmental
(a) It and each other member of the Borrower Group (i) have obtained all
requisite Environmental Licences required for the carrying on of its
business as currently conducted and (ii) have at all times complied with
the terms and conditions of such Environmental Licences and (iii) have at
all times complied with all other applicable Environmental Law, which in
each such case, if not obtained or complied with, would or is reasonably
likely to have a Material Adverse Effect.
(b) There is no Environmental Claim in existence, pending or, to the best of
its knowledge, threatened, against it which is reasonably likely to be
decided against it and which, if so decided, would or is reasonably
likely to have a Material Adverse Effect.
(c) So far as it is aware, no Dangerous Substance has been used, disposed of,
generated, stored, transported, dumped, released, deposited, buried or
emitted at, on, from or under any premises (whether or not owned, leased,
occupied or controlled by it or any member of the Borrower Group and
including any offsite waste management or disposal location utilised by
it or any member of the Borrower Group) in circumstances where this would
be reasonably likely to result in a liability on it which would or is
reasonably likely to have a Material Adverse Effect.
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15.12 Security Interests
Its execution and delivery of this Agreement does not necessitate and
will not result in the creation or imposition of any Security Interest
over any of its material assets or those of any member of the Borrower
Group (except for any Security Interest created pursuant to the Security
Documents).
15.13 Litigation and insolvency proceedings
(a) No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency have been started against any member of
the Borrower Group and, to its knowledge, no such proceedings are
threatened, where in any such case, there is a reasonable likelihood of
an adverse outcome to any member of the Borrower Group where that outcome
is of a nature which would or is reasonably likely to have a Material
Adverse Effect.
(b) None of the circumstances referred to in Clause 18.7 (Insolvency
proceedings) are pending or, to its knowledge, threatened against it or
any member of the Borrower Group which is a Material Subsidiary.
15.14 Information
(a) To the best of its knowledge after due inquiry, as of the date of any
Information Memorandum:
(i) the factual information relating to the Borrower Group and UPC
contained in that Information Memorandum is accurate in all
material respects;
(ii) all UPC Distribution's projections and forecasts contained in that
Information Memorandum were based on and arrived at after due and
careful consideration and have been prepared by UPC Distribution on
the basis of assumptions that UPC Distribution believed were
reasonable as of the date of the projections;
(iii) there are no material facts or circumstances which have not been
disclosed to the Lenders in writing prior to the date of that
Information Memorandum and which would make any material factual
information referred to in (i) above untrue, inaccurate or
misleading in any material respect as at the date of that
Information Memorandum, or any such opinions, projections, or
assumptions referred to in (ii) above misleading in any material
respect as at the date of that Information Memorandum.
(b) To the best of its knowledge after due inquiry, the factual information
furnished by or on behalf of UPC or any member of the Borrower Group to
the Consultant and contained or referred to in the Consultant's Report
was true in all material respects at the respective dates as of which
that information speaks.
(c) Notwithstanding paragraphs (a) and (b) above, no representation is made
in respect of (i) any information, facts, statements, opinions,
projections, forecasts, demographic statistics or circumstances relating
to the cable, media, telecommunications and data services industry as a
whole, (ii) the research reports contained in Book Two of the Information
Memorandum and (iii) any person other than any member of the Borrower
Group.
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15.15 Tax liabilities
No claims are being asserted against it or any member of the Borrower
Group with respect to Taxes which are reasonably likely to be determined
adversely to it or to such member and which, if so adversely determined,
would or is reasonably likely to have a Material Adverse Effect. It is
not materially overdue in the filing of any Tax returns required to be
filed by it (where such late filing might result in any material fine or
penalty on it) and it has paid within any period required by law all
Taxes shown to be due on any Tax returns required to be filed by it or on
any assessments made against it (other than Tax liabilities being
contested by it in good faith and where it has made adequate reserves for
such liabilities or where such overdue filing, or non-payment, or a claim
for payment, of which in each such case would not have or be reasonably
likely to have a Material Adverse Effect).
15.16 Ownership of assets
It and each member of the Borrower Group has good title to or valid
leases or licences of or is otherwise entitled to use all assets
necessary to conduct its business, except where the failure to do so
would not have or be reasonably likely to have a Material Adverse Effect.
15.17 Intellectual Property Rights
(a) It (and each member of the Borrower Group) owns or has the legal right to
use all the Intellectual Property Rights which are required for the
conduct of the business of the Borrower Group as a whole from time to
time or are required by it (or such member) in order for it to carry on
such business as it is then being conducted, except where the failure to
do so would not have or be reasonably likely to have a Material Adverse
Effect. As far as it is aware it does not (nor does any member of the
Borrower Group), in carrying on its business, infringe any Intellectual
Property Rights of any third party in any way which would or is
reasonably likely to have a Material Adverse Effect.
(b) None of the Intellectual Property Rights owned by any member of the
Borrower Group is, to its knowledge, being infringed nor, to its
knowledge, is there any threatened infringement of those Intellectual
Property Rights, by any third party which, in either case, would or is
reasonably likely to have a Material Adverse Effect.
(c) All registered Intellectual Property Rights owned by it (or any member of
the Borrower Group) are subsisting and all actions (including payment of
all fees) required to maintain the same in full force and effect have
been taken except where the absence of such rights or the failure to take
any such action would not have or be reasonably likely to have a Material
Adverse Effect.
15.18 Works councils
All of the requirements of Section 25 of The Netherlands Works Council
Act (Wet op de Ondernemingsraden) in connection with the transactions
contemplated by the Finance Documents which are applicable to an Obligor
have been complied with by that Obligor.
15.19 Borrower Group Structure
(a) Part I of Schedule 10 sets out a description which is true and complete
in all material respects as at the Signing Date of the corporate
ownership structure of the Borrower Group and of the ownership of UPC
Distribution (but does not describe any level of ownership above UPC).
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(b) Part II of Schedule 10 sets out a description which is true and complete
in all material respects as at the first Utilisation Date (following the
first Utilisation hereunder) of the corporate ownership structure of the
Borrower Group (but does not describe any level of ownership above UPC).
15.20 ERISA
Neither it nor any member of the Borrower Group or ERISA Affiliate
maintains, contributes to or has any obligation to contribute to or any
liability under, any Plan, or in the past five years has maintained or
contributed to or had any obligation to, or liability under, any Plan.
15.21 Investment Company Act
Neither it nor any member of the Borrower Group is an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the United States Investment Company Act of 1940, as amended.
15.22 Public Utility Holding Company Act and Federal Power Act
Neither it nor any member of the Borrower Group is a "holding company",
or an "affiliate" of a "holding company" or a "subsidiary company" of a
"holding company", within the meaning of, or otherwise subject to
regulation under, the United States Public Utility Holding Company Act of
1935, as amended. Neither it nor any member of the Borrower Group is a
"public utility" within the meaning of, or otherwise subject to
regulation under, the United States Federal Power Act.
15.23 Margin stock
(a) (In the case of the Borrowers only) the proceeds of the Loans have been
and will be used only for the purposes described in Clause 3 (Purpose).
(b) Neither it nor any member of the Borrower Group is engaged principally in
the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulations U and X of the
Board of Governors of the United States Federal Reserve System), and no
portion of any Advance has been or will be used, directly or indirectly,
to purchase or carry margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock.
15.24 US Borrower
The US Borrower has not traded or carried on any business since the date
it was formed except for investment in or proposed investment in other
members of the Borrower Group by way of intercompany loan or subscription
of shares.
15.25 Times for making representations and warranties
(a) The representations and warranties set out in this Clause 15
(Representations and Warranties) are made by each Obligor on the Signing
Date and (except for Clauses 15.6(a), (b)(ii) and (c) (Consents), 15.10
(Financial condition), 15.12 (Security Interests), 15.13(b) (Litigation
and insolvency proceedings), 15.14 (Information), 15.15 (Tax
liabilities), 15.16 (Ownership of assets), 15.18 (Works councils), 15.19
(Borrower Group Structure), 15.20 (ERISA) and 15.24 (US Borrower)) are
deemed to be made again by each relevant Obligor on the date of each
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Request, the first day of each Interest Period and on each Utilisation
Date with reference to the facts and circumstances then existing.
(b) The representations and warranties set out in this Clause 15
(Representations and Warranties) (except Clauses 15.9 (Accounts), 15.10
(Financial condition), 15.14 (Information), 15.19 (Borrower Group
Structure) and 15.24 (US Borrower)) are repeated by each Additional
Guarantor with respect to itself on the date of the Guarantor Accession
Agreement relating to that Additional Guarantor, with reference to the
facts and circumstances then subsisting.
(c) The representation and warranty made by UPC Distribution in Clause 15.14
(Information) will be deemed to be repeated on the date any updated
Information Memorandum is delivered to the Facility Agent by UPC
Distribution, but only in respect of that updated Information Memorandum,
by reference to the facts and circumstances existing on the relevant
date.
16. UNDERTAKINGS
16.1 Duration
The undertakings in this Clause 16 (Undertakings) will remain in force
from the Signing Date for so long as any amount is or may be outstanding
under any Finance Document or any Commitment is in force.
16.2 Financial information
UPC Distribution shall supply to the Facility Agent in sufficient copies
for all the Lenders:
(a) as soon as the same are available (and in any event within 150 days
of the end of each of its financial years) its audited consolidated
financial statements for that financial year;
(b) as soon as the same are available (and, in any event, (in the case
of its first three financial quarters in any financial year) within
60 days of the end of each of its financial quarters and (in the
case of its fourth financial quarter in each financial year) within
150 days of the end of each such financial quarter), its unaudited
quarterly consolidated management accounts for that financial
quarter in the agreed form;
(c) by no later than 60 days after the last day of each of its financial
years, an annual budget for the Distribution Business of the
Borrower Group in the agreed form for the immediately following
financial year;
(d) together with any financial statements specified in paragraphs (a)
or (b) above, a certificate signed by a director of UPC
Distribution:
(i) confirming that no Default is outstanding or if a Default is
outstanding, specifying the Default and the steps, if any,
being taken to remedy it;
(ii) setting out in reasonable detail computations establishing, as
at the date of such financial statements, whether each of the
financial ratios set out in Clause 17 (Financial Covenants)
and, where applicable, the ratio set out in Clause 4.3(b) (Pro
forma covenant compliance) were complied with;
(iii) (in the case of financial statements specified in paragraph
(a) above, starting with the annual financial statements for
31st December, 2004) setting out in
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reasonable detail computations establishing the Excess Cash
Flow (if any) for the financial year to which such financial
statements were delivered for the purposes of Clause 7.5
(Mandatory prepayment from Excess Cash Flow);
(iv) certifying current compliance with the Borrowers' obligations
under Clause 7.6(b)(i) (Mandatory prepayment from disposal
proceeds); and
(v) certifying compliance with Clause 16.11(a) and (b)
(Acquisitions and mergers) and setting out in reasonable
detail the amount of the Acquisition Cost of all Acquisitions
made by the Borrower Group since the Signing Date (excluding,
at UPC Distribution's option, the value of any consideration
referred to in paragraph (a) of the definition of "Acquisition
Cost" in respect of such Acquisition which has yet to be paid
or delivered) and whether any such Acquisition Cost has been
directly or indirectly funded by the proceeds of equity or
Subordinated Shareholder Loans as described in paragraph (c)
of the definition of "Permitted Acquisition" and paragraph (b)
of the definition of "Permitted Joint Venture" respectively.
(e) as soon as the same is available (and in any event within 90 days
after each of its financial quarters) the consolidated financial
statements of UPC for that financial quarter on Form 10Q as filed
with the United States Securities and Exchange Commission (the
"Commission") or such other comparable form as UPC is required to
file with the Commission under the United States Securities Exchange
Act of 1934 (the "1934 Act") or, if UPC is no longer subject to the
reporting requirements of the 1934 Act, in the form required to be
filed with the regulatory body comparable to the Commission then
having jurisdiction over UPC;
(f) as soon as the same is available (and in any event within 180 days
after each of its financial years) the audited consolidated
financial statements of UPC for that financial year on Form 10K as
filed with the Commission or such other comparable form as UPC is
required to file with the Commission under the 1934 Act or, if UPC
is no longer subject to the reporting requirements of the 1934 Act,
in the form required to be filed with the regulatory body comparable
to the Commission then having jurisdiction over UPC; and
(g) together with the financial statements and accounts referred to in
paragraphs (a) and (b), a reconciliation demonstrating the effect of
excluding from such financial statements or accounts the results of
any business or activity other than the Distribution Business of the
Borrower Group, provided that non-Distribution Business Assets need
not be so excluded (and the reconciliation need not apply to such
assets) unless they are subject to any Security Interest referred to
in paragraph (i) of the definition of "Permitted Security Interest"
or any other form of recourse as contemplated by Clause
16.12(b)(xii)(Restrictions on Financial Indebtedness).
16.3 Information - Miscellaneous
UPC Distribution shall supply promptly or procure that there shall be
supplied promptly to the Facility Agent:
(a) all notices, reports or other documents despatched by or on behalf
of any Obligor to its creditors generally in relation to it or any
of its Subsidiaries;
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(b) a copy of any material report or other notice, statement or
circular, sent or delivered by any member of the Borrower Group
whose shares are pledged to the Security Agent pursuant to any
Security Document to any person in its capacity as shareholder of
such member of the Borrower Group, which materially adversely
affects the interest of the Finance Parties under such Security
Document; and
(c) such other material information regarding the Borrower Group and
which is in the possession or control of any member of the Borrower
Group as the Facility Agent may from time to time reasonably
request.
16.4 Notification of Default and inspection rights
(a) Each Obligor shall notify the Facility Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming aware of
it (unless that Obligor is aware that such a notification has already been
provided by another Obligor).
(b) Each Obligor (other than UPC Distribution Holdco) shall, if required by
the Facility Agent (acting on the instructions of the Majority Lenders),
at any time whilst an Event of Default is continuing or the Facility Agent
has reasonable grounds to believe that an Event of Default may exist and
at other times if the Facility Agent has reasonable grounds for such
request, permit representatives of the Facility Agent upon reasonable
prior written notice to UPC Distribution to:
(i) visit and inspect the properties of any member of the Borrower Group
during normal business hours,
(ii) inspect its books and records other than records which the relevant
member of the Borrower Group is prohibited by law, regulation or
contract from disclosing to the Facility Agent; and
(iii) discuss with its principal officers and Auditors its business,
assets, liabilities, financial position, results of operations and
business prospects provided that (A) any such discussion with the
Auditors shall only be on the basis of the audited financial
statements of the Borrower Group and any compliance certificates
issued by the Auditors and (B) representatives of UPC Distribution
shall be entitled to be present at any such discussion with the
Auditors.
16.5 Authorisations
Each Obligor (other than UPC Distribution Holdco, in the case of
paragraphs (b) and (c) below) will, and will procure that each of its
Subsidiaries which is a member of the Borrower Group will:
(a) obtain or cause to be obtained, maintain and comply with the terms
of:
(i) every material consent, authorisation, licence or approval of,
or filing or registration with or declaration to, governmental
or public bodies or authorities or courts; and
(ii) every material notarisation, filing, recording, registration or
enrolment in any court or public office,
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in each case required under any law or regulation to enable it to
perform its obligations under, or for the validity, enforceability
or admissibility in evidence of any Finance Document to which it is
a party; and
(b) obtain or cause to be obtained every Necessary Authorisation and the
Licences and ensure that (i) none of the Necessary Authorisations or
Licences is revoked, cancelled, suspended, withdrawn, terminated,
expires and is not renewed or otherwise ceases to be in full force
and effect and (ii) no Necessary Authorisation or Licence is
modified and no member of the Borrower Group commits any breach of
the terms or conditions of any Necessary Authorisation or Licence
which, in each case, would or is reasonably likely to have a
Material Adverse Effect.
16.6 Pari passu ranking
Each Obligor will procure that its payment obligations under the Finance
Documents do and will rank at least pari passu with all the claims of its
other present and future unsecured and unsubordinated creditors (save for
those obligations mandatorily preferred by applicable law applying to
companies generally).
16.7 Negative pledge
(a) Each Obligor (other than UPC Distribution Holdco) will not permit any
Security Interest (other than the Permitted Security Interests) by any
member of the Borrower Group to subsist, arise or be created or extended
over all or any part of their respective present or future undertakings,
assets, rights or revenues to secure or prefer any present or future
indebtedness of any member of the Borrower Group or any other person.
(b) UPC Distribution Holdco will not create or permit to subsist any Security
Interest over its assets which are subject to the Security Documents to
which it is a party (other than any Permitted Security Interest referred
to in paragraphs (a), (d), (e) or (g) of the definition of "Permitted
Security Interest").
16.8 Permitted Business
(a) Each Obligor will ensure that it and its Subsidiaries which are members of
the Borrower Group (other than any Relevant Eastern European Subsidiary)
engage:
(i) in no material activity outside the Permitted Business; and/or
(ii) in the business of acting as the holder of shares and/or interests in
other members of the Borrower Group (which shall include the raising
of Permitted Financial Indebtedness and the on-lending of such
Financial Indebtedness to its Subsidiaries in accordance with the
provisions of this Agreement and the entry into of hedging
arrangements on behalf of its Subsidiaries).
(b) The Borrowers will ensure that the US Borrower will engage primarily in
the business of a finance company for and in respect of the Borrower Group
in connection with the Facilities and the transactions contemplated by
this Agreement, to the extent not otherwise prohibited by the Indentures.
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16.9 Compliance with laws
Each Obligor will, and will procure that each of its Subsidiaries which
is a member of the Borrower Group will, comply in all material respects
with all applicable laws, rules, regulations and orders of any
governmental authority, having jurisdiction over it or any of its assets,
except where failure to comply with which would not have or be reasonably
likely to have a Material Adverse Effect.
16.10 Disposals
(a) Each Obligor (other than UPC Distribution Holdco) will not and will
procure that no other member of the Borrower Group (other than a Relevant
Eastern European Subsidiary) will, sell, transfer, lend (subject to
Clause 16.14 (Loans and guarantees)) or otherwise dispose of or cease to
exercise direct control over (each a "disposal") any part of its present
or future undertaking, assets, rights or revenues whether by one or a
series of transactions related or not (other than Permitted Disposals).
(b) As used herein, Clause 16.10 a "Permitted Disposal" means:
(i) disposals (including, for the avoidance of doubt, the outsourcing
of activities that support or are incidental to the Permitted
Business) on arm's-length commercial terms in the ordinary course
of business;
(ii) any disposals within the Restructuring;
(iii) the disposal of property or other assets on bona fide arm's
length commercial terms in the ordinary course of business in
consideration for, or to the extent that the net proceeds of
disposal are applied within 120 days after such disposal in the
acquisition of, property or other assets of a similar nature and
approximately equal value to be used in the Permitted Business;
(iv) disposals of assets on bona fide arm's length commercial terms
where such assets are obsolete or no longer required for the
purposes of the Permitted Business;
(v) the application of cash in payments which are not otherwise
restricted by the terms of this Agreement and the Security
Documents including, for the avoidance of doubt, Permitted
Acquisitions and Permitted Payments;
(vi) disposals (or the payment of management, consultancy or similar
fees):
(A) by an Obligor to another Obligor; or
(B) from a member of the Borrower Group which is not an Obligor,
to any member of the Borrower Group; or
(C) from an Obligor to another member of the Borrower Group
which is not an Obligor;
(vii) disposals of any interest in an Unrestricted Subsidiary;
(viii) disposals made in connection with Approved Stock Options;
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(ix) (A) disposals of assets (in addition to those described in
paragraphs (i) to (viii) above), comprising or contributing
in aggregate a percentage value (as determined in accordance
with Clause 7.6(c) (Mandatory prepayment from disposal
proceeds)) of 10 per cent. or less (adjusted in accordance
with Clause 7.6(b)) of the total assets, revenues or EBITDA
of the Borrower Group provided that no Default has occurred
and is continuing or would occur as a result of such
disposal; and
(B) disposals of assets comprising or contributing in aggregate
a percentage value (as determined in accordance with Clause
7.6(c) (Mandatory prepayment from disposal proceeds) of more
than 10 per cent. of the total assets, revenues or EBITDA of
the Borrower Group (taken as a whole), provided that:
(1) prior to the relevant disposal, UPC Distribution has
delivered to the Facility Agent financial projections
based on assumptions which are no more aggressive than
those used in the preparation of the Information
Memorandum which demonstrate that the Borrower Group
will be in compliance with the undertakings set out in
Clause 17 (Financial Covenants) for the period
commencing on completion of the relevant disposal and
ending on the last Final Repayment Date;
(2) no Default has occurred and is continuing or would
occur as a result of such disposal; and
(3) the provisions of Clause 7.6 (Mandatory prepayment from
disposal proceeds) have been complied with;
(x) disposals of undertakings, assets, rights or revenues comprising
interests in the share capital of persons not holding or engaged
in the Distribution Business of the Borrower Group or other
undertakings, assets, rights or revenues not constituting part of
the Distribution Business of the Borrower Group ("non-
Distribution Business Assets");
(xi) payment, transfer or other disposal of consideration for any
Acquisition, merger or consolidation permitted by Clause 16.11
(Acquisitions and mergers);
(xii) disposals of cash or cash equivalents constituting any
distribution, dividend, transfer, loan or other transaction
permitted by Clause 16.13 (Restricted Payments); and
(xiii) the grant of indefeasible rights of use or equivalent
arrangements with respect to network capacity, communications,
fibre capacity or conduit, in each case on arm's length
commercial terms or on terms that are fair and reasonable and in
the best interests of the Borrower Group.
For the avoidance of doubt and without limiting the generality of
paragraph (x) above, non-Distribution Business Assets shall
include:
(A) undertakings, assets, rights and revenues comprising
interests in the share capital of any person engaged solely
in the competitive local exchange carrier (CLEC) business,
including without limitation, the business of providing
traditional voice and data services and services based on
Transmission Control Protocol/Internet Protocol (TCP/IP)
technology and other
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undertakings, assets, rights or revenues constituting a part
of such businesses; and
(B) undertakings, assets, rights and revenues comprising
interests in the share capital of any person engaged solely
in the business of television and radio programming,
including without limitation, the business or creating and
distributing special interest television channels, radio
programmes, pay per view programmes and near video on demand
services and other undertakings, assets, rights or revenues
constituting a part of such businesses.
(c) Except as otherwise expressly permitted in this Agreement or the relevant
Security Document, UPC Distribution Holdco will not sell, transfer, lease
or otherwise dispose of all or any part of its assets which are subject
to a Security Document to which it is a party.
16.11 Acquisitions and mergers
(a) No Obligor (other than UPC Distribution Holdco) will, and each Obligor
(other than UPC Distribution Holdco) will procure that none of its
Subsidiaries which is a member of the Borrower Group will, make any
Acquisition, other than:
(i) any Acquisition approved in writing by the Majority Lenders;
(ii) any Permitted Acquisition;
(iii) any Permitted Joint Venture; or
(iv) any Acquisition from any person which is a member of the Borrower
Group or subscription of an interest in the share capital (or
equivalent) in any person which is a member of the Borrower Group.
(b) No Obligor (other than UPC Distribution Holdco) will, and each Obligor
(other than UPC Distribution Holdco) will procure that none of its
Subsidiaries which is a member of the Borrower Group will, pay or deliver
any consideration referred to in paragraph (a) of the definition of
"Acquisition Cost" in connection with a Permitted Acquisition or
Permitted Joint Venture made by it if and to the extent that the
aggregate of:
(i) such deferred consideration; and
(ii) the Acquisition Cost of all other Acquisitions made by the Borrower
Group since the Signing Date,
would cause the relevant Acquisition to cease to be a Permitted
Acquisition or, as the case may be, a Permitted Joint Venture.
(c) Unless a Relevant Event has occurred or would result from the relevant
Acquisition, paragraphs (a) and (b) shall not restrict Acquisitions by a
member of the Borrower Group from any Shareholder, to the extent that
such provisions otherwise would cause UPC or UGC to be in default of any
provisions contained in any Indenture, provided that, in the case of any
such Acquisition, prior to completing such Acquisition, UPC Distribution
delivers to the Facility Agent financial projections based on assumptions
which are no more aggressive (when taken as a whole) than those used in
the preparation of the Information Memorandum which demonstrate that the
Borrowers will be in compliance with Clause 6 (Repayment) and the
undertakings set out in Clause 17.2 (Financial Covenants) for the period
from completion
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of the Acquisition (taking into account the Acquisition Cost of such
Acquisition (but deducting from that Acquisition the value of any
consideration referred to in paragraph (a) of the definition of
"Acquisition Cost") and UPC Distribution's financial projections relating
to the acquired business or asset(s)) to the last Final Repayment Date.
(d) Each Obligor (other than UPC Distribution Holdco) will not merge or
consolidate with any other company or person and will procure that no
member of the Borrower Group will merge or consolidate with any other
company or person (other than, in each case, in connection with the
Romania Restructuring) save for:
(i) Acquisitions permitted by paragraphs (a) and (b) above and
disposals permitted by Clause 16.10 (Disposals); or
(ii) with the prior written consent of the Facility Agent (acting on the
instructions of the Majority Lenders); or
(iii) mergers between any member of the Borrower Group with (1) any or
all of the other members of the Borrower Group or (2) an
Unrestricted Subsidiary ("Original Entities"), into one or more
entities (each a "Merged Entity") provided that:
(A) reasonable details of the proposed merger in order to
demonstrate satisfaction with paragraphs (C) to (G) below are
provided to the Facility Agent at least 10 days before the
merger is to be entered into;
(B) if the proposed merger is between a member of the Borrower
Group and an Unrestricted Subsidiary, UPC Distribution has
delivered to the Facility Agent financial projections based on
assumptions which are no more aggressive than those used in
the preparation of the Information Memorandum which
demonstrate that the Borrower Group will be in compliance with
the undertakings set out in Clause 17.2 (Financial ratios) for
the period commencing on the date of merger and ending on the
last Final Repayment Date under this Agreement;
(C) such Merged Entity will be a member of the Borrower Group and
will be liable for the obligations of the relevant Original
Entities (including the obligations under this Agreement and
the Security Documents), which obligations remain unaffected
by the merger, and entitled to the benefit of all rights of
such Original Entities;
(D) (if all or any part of the share capital of any of the
relevant Original Entities was charged pursuant to a Security
Document) the equivalent part of the issued share capital of
such Merged Entity is charged pursuant to a Security Document
on terms of at least an equivalent nature and equivalent
ranking as any Security Document relating to the shares in
each relevant Original Entity;
(E) such Merged Entity has entered into Security Documents (if
applicable) which provide security over the same assets of at
least an equivalent nature and ranking to the security
provided by the relevant Original Entities pursuant to any
Security Documents entered into by them;
(F) any possibility of the Security Documents referred to in
paragraphs (D) or (E) above being challenged or set aside is
not materially greater than any such
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possibility in relation to the Security Documents entered into
by, or in respect of the share capital of, any relevant Original
Entity; and
(G) all the property and other assets of the relevant Original
Entities are vested in the Merged Entity and the Merged Entity
has assumed all the rights and obligations of the relevant
Original Entities under any relevant Material Contracts, material
Necessary Authorisations and Licences and other licences or
registrations (to the extent reasonably necessary for the
business of the relevant Original Entities) granted in favour of
the Original Entities under Telecommunications and Cable Laws
and/or all such rights and obligations have been transferred to
the Merged Entity and/or the relevant Material Contracts,
Necessary Authorisations and Licences and other licences or
registrations (to the extent reasonably necessary for the
business of the relevant Original Entities) granted in favour of
the Original Entities under Telecommunications and Cable Laws
have been reissued to the Merged Entity.
16.12 Restrictions on Financial Indebtedness
(a) Each Obligor (other than UPC Distribution Holdco) will not, and will
procure that no other member of the Borrower Group (other than a Relevant
Eastern European Subsidiary) will, create, incur or otherwise permit to
be outstanding any Financial Indebtedness (other than Permitted Financial
Indebtedness).
(b) As used herein, "Permitted Financial Indebtedness" means, without
duplication:
(i) any Financial Indebtedness arising hereunder or under the Security
Documents;
(ii) (until the first Utilisation Date) any Financial Indebtedness
described in Schedule 9 (Relevant Financial Indebtedness);
(iii) any Financial Indebtedness or guarantees permitted pursuant to
Clause 16.14 (Loans and guarantees);
(iv) any Financial Indebtedness incurred through a Subordinated
Shareholder Loan made to any member of the Borrower Group;
(v) any Financial Indebtedness of any member of the Borrower Group
arising as a result of the issue by it or a financial institution
of a surety or performance bond in relation to the performance by
such member of the Borrower Group or its obligations under
contracts entered into in the ordinary course of its business
(other than for the purpose of raising finance);
(vi) any Financial Indebtedness approved in writing by the Facility
Agent (acting on the instructions of the Majority Lenders);
(vii) any Financial Indebtedness incurred in connection with the Senior
Hedging Agreements and any other hedging arrangements permitted by
Clause 16.17(b)(ii) (Hedging);
(viii) any deposits or prepayments constituting Financial Indebtedness
received by any member of the Borrower Group from a customer or
subscriber for its services;
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(ix) any Financial Indebtedness owing by any member of the Borrower
Group being Management Fees or management, consultancy or similar
fees payable to another member of the Borrower Group in respect of
which payment has been deferred;
(x) any Financial Indebtedness being Permitted Payments in respect of
which payment has been deferred;
(xi) any Financial Indebtedness of a company which is acquired by a
member of the Borrower Group after the date hereof as an
acquisition permitted by Clause 16.11 (Acquisitions and mergers)
where such Financial Indebtedness existed at the date of
completion of such Permitted Acquisition provided that (A) such
Financial Indebtedness was not incurred in contemplation of the
acquisition, (B) the amount of such Financial Indebtedness is not
increased beyond the amount in existence at the date of completion
of the acquisition and (C) such Financial Indebtedness is
discharged within six months of the date of completion of the
acquisition;
(xii) any Financial Indebtedness of any member of the Borrower Group, in
respect of which the person or persons to whom such Financial
Indebtedness is or may be owed has or have no recourse whatever to
any member of the Borrower Group for any payment or repayment in
respect thereof other than recourse to such member of the Borrower
Group for the purpose only of enabling amounts to be claimed in
respect of such Financial Indebtedness in an enforcement of any
Security Interest given by any member of the Borrower Group over
non-Distribution Business Assets, provided that:
(A) the extent of such recourse to such member is limited solely
to the amount of any recoveries made on any such enforcement;
(B) such person or persons are not entitled, pursuant to the
terms of any agreement evidencing any right or claim arising
out of or in connection with such Financial Indebtedness, to
commence proceedings for the winding up, dissolution or
administration of any member of the Borrower Group (or
proceedings having an equivalent effect) or to appoint or
procure the appointment of any receiver, trustee or similar
person or officer in respect of any member of the Borrower
Group or any of its assets (save only for the non-
Distribution Business Assets the subject of that Security
Interest) until after the Commitments have been reduced to
zero and all amounts outstanding under the Finance Documents
have been repaid or paid in full; and
(C) the aggregate outstanding amount of all such Financial
Indebtedness of all members of the Borrower Group does not
exceed (Euro)100,000,000 (or its equivalent in other
currencies),
(xiii) any Financial Indebtedness of any member of the Borrower Group
(other than any Obligor) constituting Financial Indebtedness to
all the holders (or their Associated Companies) of the share
capital of any such member of the Borrower Group on a basis that
is substantially proportionate to their interests in such share
capital (with any disproportionately large interest received by
any member of the Borrower Group or any disproportionately small
interest received by any person other than a member of the
Borrower Group, in each case relative to its interests in such
share capital, being ignored for this purpose), provided such
Financial Indebtedness does not bear interest (other than by way
of addition to its principal amount on a proportionate basis as
described above) and is made on terms that repayment or pre-
payment of such
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Financial Indebtedness shall only be made to each such holder (A)
in proportion to their respective interests in such share capital
(ignoring any disproportionately large interest held by any member
of the Borrower Group or any disproportionately small interest
received by any person other than a member of the Borrower Group,
in each case relative to its interests in such share capital, for
this purpose) and (B) only on and in connection with the
liquidation or winding up (or equivalent) of such member of the
Borrower Group; and
(xiv) any other Financial Indebtedness in addition to the Financial
Indebtedness falling within paragraphs (i) to (xiii) above not
exceeding at any time more than (Euro)150,000,000 in aggregate
(or its equivalent).
(c) No Obligor will, and each Obligor will procure that none of its
Subsidiaries which is a member of the Borrower Group will, incur or have
outstanding any Financial Indebtedness due to or for the benefit of UPC
or any Subsidiary of UPC (not being a member of the Borrower Group),
other than Subordinated Shareholder Loans and any Permitted Financial
Indebtedness referred to in Clause 16.12(b)(vi), (viii), (ix), (x) or
(xii).
16.13 Restricted Payments
(a) Except for any payment or transfer of consideration for the transfer of
shares or receivables to a member of the Borrower Group pursuant to the
Restructuring, each Obligor (other than UPC Distribution Holdco) will
not, and will procure that no member of the Borrower Group will, make any
Restricted Payments other than Permitted Payments or enter into any
transaction with a Restricted Person other than on bona fide arm's length
commercial terms or on terms which are fair and reasonable and in the
best interests of the Borrower Group.
(b) As used herein, a "Restricted Payment" means, in each case whether in
cash, securities, property or otherwise:
(i) any direct or indirect distribution, dividend or other payment on
account of any class of its share capital or capital stock or
other securities;
(ii) any payment of principal of, or interest on, any loan; or
(iii) any transfer of assets, loan or other payment,
in the case of each of (i), (ii) and (iii), to a Restricted Person.
(c) As used herein, a "Permitted Payment" means any distribution, dividend,
transfer of assets, loan or other payment:
(i) to any Restricted Person in relation to transactions carried out
on bona fide arm's-length commercial terms in the ordinary course
of business or on terms which are fair and reasonable and in the
best interests of the Borrower Group (including, but not limited
to, such transactions under Clause 16.21 (chello and Priority));
(ii) by way of payment of Management Fees (i) which are paid on bona
fide arm's-length terms in the ordinary course of business to a
Restricted Person or (ii) of up to (Euro)15,000,000 in any
financial year provided that, at the time of payment, no Default
is subsisting or would occur as a result of such payment;
(iii) (A) to finance the payment by UPC of interest on the High Yield
Notes; or
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(B) by way of payment of interest on Subordinated Shareholder
Loans,
provided that (1) the then applicable ratio for the purposes of
Clause 17.2(e) (Financial ratios) is 4.5:1 (or less); and (2) no
Default has occurred and is continuing or would occur as a result
of such payment;
(iv) by way of distributions, dividends or other payments paid by UPC
Distribution in respect of its share capital or by way of
repayment or payment by UPC Distribution or the relevant member of
the Borrower Group (as the case may be) in respect of a
Subordinated Shareholder Loan (each a "Relevant Payment") but only
to the extent that UPC Distribution or the relevant member of the
Borrower Group (as the case may be) has either (i) received a
corresponding distribution, dividend or other payment from an
Unrestricted Subsidiary or any other person in which UPC
Distribution has any interest that is not a member of the Borrower
Group of at least an equal amount to such Relevant Payment or (ii)
the Relevant Payment is made from the proceeds of sale or a
disposal by UPC Distribution or the relevant member of the
Borrower Group (as the case may be) permitted by Clause
16.10(b)(vii) (Disposals);
(v) by way of payment to any person or for any purpose to the extent
that any such payment would be permitted to be made to UPC or the
relevant Subordinated Creditor pursuant to paragraph (iii) above
and provided that any such payment shall automatically reduce the
liability to UPC or the relevant Subordinated Creditor under the
relevant obligation referred to in paragraph (iii) above to the
extent of the amount paid;
(vi) by way of the repayment of any Subordinated Shareholder Loan made,
or the redemption of equity share capital in a member of the
Borrower Group subscribed for, to finance a Permitted Acquisition
or a Permitted Joint Venture, provided that (A) the repayment of
such Subordinated Shareholder Loan or the redemption of such
equity share capital would not cause the limits referred to in the
definition of "Permitted Acquisition" or "Permitted Joint Venture"
to be exceeded and (B) no Default has occurred and is continuing
or would occur as a result of such payment;
(vii) by way of payment to any Restricted Person of consideration for an
acquisition, merger or consolidation permitted by Clause 16.11
(Acquisitions and mergers); and
(viii) by way of transfer to any Restricted Person of any non-
Distribution Business Assets (as defined in Clause 16.10(b)(x)
(Disposals)) permitted in accordance with Clause 16.10(b)(x)
(Disposals),
and provided further that, in the case of (iii), (v) and (vi), prior to
making the relevant payment the Borrower Group is in compliance with the
financial covenants set out in Clause 17.2 (Financial ratios) and would
be in compliance with such covenants if Total Cash Interest had been
increased by the amount of the proposed Permitted Payment and all other
Permitted Payments made since the date to which the most recent financial
statements delivered under Clause 16.2(a) or (b) (Financial information)
were prepared.
(d) The restriction contained in paragraph (a) on the payment by any member
of the Borrower Group of Management Fees shall cease to apply during such
period as the applicable ratio for the purposes of Clause 17.2(e)
(Financial ratios) is 3.50:1 (or less), provided that no Management Fees
may be paid by any member of the Borrower Group at any time after a
Relevant Event has occurred or if a Relevant Event would result from such
payment.
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16.14 Loans and guarantees
Each Obligor (other than UPC Distribution Holdco) will not, and will
procure that no member of the Borrower Group will make any loans, grant
any credit or give any guarantee, to or for the benefit of, or enter into
any transaction having the effect of lending money to, any person,
other than:
(a) loans from a member of the Borrower Group to another member of the
Borrower Group, provided that no Obligor shall make a loan to any
other member of the Borrower Group unless:
(i) such Obligor has first entered into an Obligor Pledge of
Shareholder Loans which creates an effective pledge in favour
of the Security Agent in relation to such loan and provided the
Security Agent with such evidence as it may reasonably request
as the power and authority of such Obligor to enter into such
Obligor Pledge of Shareholder Loans and that such Obligor
Pledge of Shareholder Loans constitutes valid and legally
binding obligations of such Obligor enforceable in accordance
with its terms subject (to the extent possible) to
substantially similar qualifications to those made in the legal
opinions referred to in Schedule 2 (Conditions precedent
documents); and
(ii) the relevant member of the Borrower Group to whom the
shareholder loan is to be made has given a notification of
pledge to the Security Agent in respect of such shareholder
loans;
(b) as permitted by Clause 16.12 (Restrictions on Financial
Indebtedness);
(c) normal trade credit in the ordinary course of business;
(d) guarantees given:
(i) by any Obligor in respect of the liabilities of another
Obligor;
(ii) by a member of the Borrower Group in respect of the
liabilities of an Obligor; or
(iii) by a member of the Borrower Group (which is not an Obligor) in
respect of the liabilities of another member of the Borrower
Group (which is not an Obligor); or
(iv) by an Obligor in respect of the liabilities of any other
member of the Borrower Group to the extent that such
liabilities could have been incurred by such Obligor directly
without breaching this Agreement; or
(e) to the extent that the same constitute Permitted Payments or a
Permitted Disposal (not being a Permitted Disposal of cash or cash
equivalents);
(f) loans to any former, present or future officers, consultants,
directors and/or employees of any member of the Borrower Group or
its Associated Companies for any purpose, including for the purpose
of meeting tax liabilities in connection with Approved Stock Options
in a maximum aggregate amount during the Finance Period of
(Euro)50,000,000;
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(g) loans, the granting of credit, guarantees and other transactions
having the effect of lending money (each a "Lending Transaction")
from a member of the Borrower Group, in connection with an
acquisition by that member which is permitted by Clause 16.11
(Acquisitions and mergers), to the relevant person being acquired or
one or more of its Subsidiaries, provided that:
(i) no Lending Transaction may have a term longer than twelve
months (including any extensions or refinancings of the
original Lending Transaction); and
(ii) the aggregate outstanding principal amount of all Lending
Transactions (which principal amount shall be deemed to be no
longer outstanding for this purpose at the time the
beneficiary of the relevant Lending Transaction becomes a
member of the Borrower Group upon completion of the relevant
acquisition, provided such Lending Transaction was made to or
in favour of the person acquired or its Subsidiaries) shall
not exceed (Euro)100,000,000 at any time;
(h) Lending Transactions from a member of the Borrower Group to any
person of the proceeds of equity subscribed by any Restricted Person
in, or Subordinated Shareholder Loans provided to, such member
(other than any such proceeds which:
(i) are taken into account in any calculation of Acquisition Cost
pursuant to paragraph (c)(i)(A) of the definition of
"Permitted Acquisition" or paragraph (b)(i)(A) of the
definition of "Permitted Joint Venture"; or
(ii) are subscribed or provided pursuant to Clause 17.4 (Cure
provisions)); and
(i) Loans to UPC Facility B.V. for the purpose of enabling the
refinancing of the Financial Indebtedness described in paragraph 7
in Schedule 9.
16.15 Environmental matters
Each Obligor (other than UPC Distribution Holdco) will and will procure
that each of its Subsidiaries which is a member of the Borrower Group
will:
(a) (i) obtain all requisite Environmental Licences, (ii) comply with
the terms and conditions of all Environmental Licences applicable to
it and (iii) comply with all other applicable Environmental Law, in
each case where failure to do so would or is reasonably likely to
have a Material Adverse Effect;
(b) promptly upon receipt of the same, notify the Facility Agent and the
Security Agent of any claim, notice or other communication served on
it in respect of any alleged breach of, or corrective or remedial
obligation or liability under, any Environmental Law which, if
substantiated, would or is reasonably likely to have a Material
Adverse Effect.
16.16 Insurance
Each Obligor (other than UPC Distribution Holdco) will, and will procure
that each of its Material Subsidiaries which is a member of the Borrower
Group will maintain insurance cover of a type and level which a prudent
company in the same business would effect.
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16.17 Hedging
(a) UPC Distribution or the US Borrower (as the case may be) shall:
(i) within six months of the Signing Date, subject to paragraph (c),
enter into currency Senior Hedging Agreement(s) in a notional amount
of not less than 50 per cent. of the US Dollar denominated Facility
C Advances and for a period ending no earlier than two years
following the Signing Date; and
(ii) promptly following the Trigger Date (as defined in paragraph (b)
below), enter into interest rate Senior Hedging Agreements in
respect of at least 50 per cent, of the then forecast amount of the
aggregate euro outstanding Facility B and Facility C Advances for a
term of not less than two years,
in each case in accordance with the Security Deed and with Senior Hedging
Banks, provided that neither UPC Distribution nor the US Borrower shall
be required to enter into the Senior Hedging Agreements referred to in
(a)(i) or (ii) above if (or to the extent that):
(A) within the six month period referred to in paragraph (a)(i) above
(in the case of the Senior Hedging Agreements referred to therein)
or such longer period contemplated under (c) below; or
(B) following the Trigger Date (in the case of the Senior Hedging
Agreements referred to in paragraph (a)(ii) above),
(1) UPC Distribution has requested quotes from not less than the
greater of:
(x) 20 per cent. by number; or
(y) five,
of the Lenders at the relevant time (or their Affiliates) as to the
rate at which such Lenders (or Affiliates) would enter into the
relevant Senior Hedging Agreements and no such quotes have been
provided or, to the extent that any quotes have been provided, such
quotes are not reasonably representative of the market rates for
entry into of hedging agreements substantially similar to the
relevant Senior Hedging Agreements with counterparties who have a
similar credit rating or credit profile to UPC Distribution; and
(2) as a result of the absence of such quotes reasonably
representative of the market rates as described in (1) above,
UPC Distribution has been unable to enter into the relevant
Senior Hedging Agreements (in whole or in part) with one or
more Lenders or their Affiliates at commercially reasonable
rates.
(b) For the purposes of paragraph (a), "Trigger Date" means the date (being a
date falling after the first date after the Signing Date on which three
month EURIBOR exceeds 5.75 per cent. per annum) which is the earlier of:
(i) the date on which UPC Distribution and/or the US Borrower agrees in
writing to enter into the Senior Hedging Agreements referred to in
paragraph (a)(ii) above; or
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(ii) the date on which the Facility Agent (acting on the instructions of
the Majority Lenders) notifies UPC Distribution and/or the US
Borrower that it is required to enter into such Senior Hedging
Agreements.
(c) (i) UPC Distribution may, on or about the date falling six months after
the Signing Date (in the case of the currency Senior Hedging
Agreements referred to in paragraph (a)(i) above), submit to the
Facility Agent a written request for a waiver by the Facility Agent
(acting on the instructions of the Majority Banks) of the
requirement that UPC Distribution and/or the US Borrower enter into
the relevant Senior Hedging Agreements referred to in paragraph
(a)(i) above in accordance with the terms of paragraph (a).
(ii) Neither UPC Distribution nor the US Borrower shall be required to
enter into such Senior Hedging Agreements unless and until UPC
Distribution receives a written notice from the Facility Agent
advising that the UPC Distribution's request for a waiver has not
been granted by the Majority Banks, in which case UPC Distribution
or the US Borrower (as the case may be) shall enter into the
relevant Senior Hedging Agreements in accordance with the terms of
paragraph (a) promptly following receipt of the Facility Agent's
written notice.
(d) Each Obligor (other than UPC Distribution Holdco) will not, and will
procure that no member of the Borrower Group will, enter into any
interest rate or currency swaps or other hedging arrangements other than:
(i) the transactions referred to in (a) above;
(ii) non-speculative arrangements directly relating to the risk
management of any Financial Indebtedness permitted to subsist by
the terms of this Agreement and entered into in the ordinary
course of business for the genuine hedging of the relevant
underlying transaction; and
(iii) to the extent they constitute interest rate or currency swaps or
other hedging arrangements, the guarantees granted by each of the
Guarantors pursuant to Clause 14 (Guarantee) in respect of the
High Yield Hedging Agreements.
16.18 Intellectual Property Rights
Except as otherwise permitted by this Agreement, each Obligor (other than
UPC Distribution Holdco) will, and will procure that each of its
Subsidiaries which is a member of the Borrower Group will:
(a) make such registrations and pay such fees and similar amounts as are
necessary to keep those registered Intellectual Property Rights owned by
any member of the Borrower Group and which are material to the conduct of
the business of the Borrower Group as a whole from time to time;
(b) take such steps as are necessary and commercially reasonable (including,
without limitation, the institution of legal proceedings) to prevent
third parties infringing those Intellectual Property Rights referred to
in paragraph (a) above and (without prejudice to paragraph (a) above)
take such other steps as are reasonably practicable to maintain and
preserve its interests in those rights, except where failure to do so
will not have or be reasonably likely to have a Material Adverse Effect;
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(c) ensure that any licence arrangements in respect of the Intellectual
Property Rights referred to in paragraph (a) above entered into
with any third party are entered into on arm's-length terms and in
the ordinary course of business (which shall include, for the
avoidance of doubt, any such licensing arrangements entered into in
connection with outsourcing on normal commercial terms) and will
not have or be reasonably likely to have a Material Adverse Effect;
(d) not permit any registration of any of the Intellectual Property
Rights referred to in paragraph (a) above to be abandoned,
cancelled or lapsed or to be liable to any claim of abandonment for
non-use or otherwise to the extent the same would or is reasonably
likely to have a Material Adverse Effect; and
(e) pay all fees, and comply with each of its material obligations
under, any licence of Intellectual Property Rights which are
material to the conduct of the business of the Borrower Group as a
whole from time to time.
16.19 Share Capital
Each Obligor (other than UPC Distribution Holdco) will not, and will
procure that no member of the Borrower Group (other than in respect of
such other members of the Borrower Group in order to permit a solvent
reorganisation permitted under Clause 16.11(d)(iii) (Acquisitions and
mergers)) will, reduce its capital or purchase or redeem any class of
its shares or any other ownership interest in it, except to the extent
the same constitutes a Permitted Payment or in the case of members of
the Borrower Group other than the Obligors, is otherwise permitted by
Clause 16.13 (Restricted Payment) or is in connection with the Romania
Restructuring.
16.20 Inter-connection and chello
Each Obligor (other than UPC Distribution Holdco) will ensure that each
member of the Borrower Group which is not a Relevant Eastern European
Subsidiary:
(a) which offers residential telephony services in any country,
maintains inter-connection arrangements with one or more major
fixed line telephony operators in that country; and
(b) which offers internet and/or data services is provided with such
services by chello broadband N.V. or by another provider on arm's
length commercial terms.
16.21 chello and Priority
For as long as chello broadband N.V. or, as the case may be, Priority
Telecom N.V. is a Restricted Person, each Obligor (other than UPC
Distribution Holdco) will not and will not permit any contractual
arrangements between chello broadband N.V. and Priority Telecom N.V.
respectively and the Borrower Group to be entered into other than on
bona fide arm's-length commercial terms or on terms that are fair and
reasonable and in the best interests of the Borrower Group.
16.22 Restructuring
(a) UPC Distribution will procure that the Romania Restructuring is
completed as soon as is reasonably practicable and that the Facility
Agent is notified promptly of the completion of the Romania
Restructuring.
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(b) Prior to the completion of the Restructuring, references in this
Agreement to the consolidated financial statements or accounts of UPC
Distribution shall mean a combination of the consolidated financial
statements or accounts of UPC Distribution and each of the other
Obligors, together with the consolidated (if applicable) financial
statements or accounts of any other person who will be a member of the
Borrower Group following completion of the Restructuring, as set out in
Part II of Schedule 10 (Borrower Group Structure).
16.23 UPC Distribution Pledged Account
(a) Subject to receipt of all necessary legal, regulatory, shareholder and
partner approvals (all of which each Obligor will, and will ensure that
each of its Subsidiaries will, use all reasonable efforts to obtain as
soon as practicable), each Obligor (other than UPC Distribution Holdco)
shall ensure that it and each of its Subsidiaries which is a member of
the Borrower Group, promptly following the last day of each financial
quarter of UPC Distribution ending after 1st January, 2001 (or any
earlier financial quarter, if practicable), transfers an amount equal to
its Excess Cash on that date to the UPC Distribution Pledged Account.
(b) For the purposes of this Clause 16.23:
(i) "Excess Cash" means, in relation to any member of the Borrower Group
at any time, the aggregate cash in hand and at bank (less
withdrawals and other transfers of cash that have not cleared at
bank) of that member at that time in excess of 5,000,000 (or its
equivalent in other currencies); and
(ii) the "UPC Distribution Pledged Account" means one or more accounts in
the name of UPC Distribution or any other member of the Borrower
Group, held with a branch of a bank or financial institution, which
has been pledged to the Beneficiaries pursuant to a Security
Document in the agreed form and in respect of which account(s) all
notices required by that Security Document have been served upon the
relevant bank or financial institution in the manner required by
that Security Document and the relevant account bank(s) have waived
any lien, right of set-off or other Security Interest, other than in
respect of routine account keeping charges and set offs between UPC
Distribution Pledged Accounts.
(c) UPC Distribution may withdraw amounts standing to the credit of the UPC
Distribution Pledged Account at any time provided that:
(i) any such withdrawn amount is to be applied to meet expenditure
arising in the course of the Business of the Borrower Group as
carried on in accordance with this Agreement or for any other
purpose permitted under this Agreement; and
(ii) no Event of Default has occurred which is continuing.
16.24 Share security
Each Obligor (other than UPC Distribution Holdco) will not, and will
procure that no member of the Borrower Group will, issue any shares of
any class provided that:
(a) notwithstanding paragraph (b), an Obligor (other than UPC
Distribution, UPC Holding II or UPC Distribution Holdco) may issue
shares to any person other than a member of the Borrower Group and
shall not be required to procure that such shares are charged or
pledged in favour of the Beneficiaries, provided that such share
issue does not result in a Change of Control;
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(b) any member of the Borrower Group may issue shares to or otherwise
acquire additional rights from any other member of the Borrower
Group so long as (if any of the existing shares in the relevant
member of the Borrower Group are charged or pledged in favour of
any Beneficiary) such shares are charged or pledged in favour of
the Beneficiaries pursuant to the terms of a Security Document
and there are delivered at the same time to the Security Agent
the relevant share certificates and blank stock transfer forms
(or equivalent documents) in respect thereof together with such
other documents and evidence and legal opinions as the Security
Agent may reasonably require;
(c) UPC Distribution and UPC Holding II may issue shares to UPC
Distribution Holdco provided that such shares are charged or
pledged in favour of the Beneficiaries pursuant to the terms of a
Security Document and there are delivered at the same time to the
Security Agent the relevant share certificates and blank stock
transfer forms (or equivalent documents) in respect thereof
together with such other documents and evidence and legal
opinions as the Security Agent may reasonably require;
(d) any member of the Borrower Group may issue shares pursuant to the
exercise of Approved Stock Options,
(e) a member of the Borrower Group may issue shares as part of an
Acquisition or merger or consolidation permitted by Clause 16.11
(Acquisitions and mergers), provided that the issue of such
shares does not cause a Change of Control;
(f) any member of the Borrower Group may issue shares in connection
with the Romania Restructuring, provided that if any existing
shares in that member of the Borrower Group are charged or
pledged in favour of any Beneficiary under any Security Document
upon issue the shares are charged or pledged in favour of the
Beneficiaries as provided in paragraph (b) above;
(g) a member of the Borrower Group (other than an Obligor) may issue
shares to all the holders of the share capital of such member pro
rata to their interests in such share capital provided that, if
any existing shares in that member of the Borrower Group are
charged or pledged in favour of any Beneficiary under any
Security Document, upon issue the shares that are issued to any
other member of the Borrower Group or any Shareholder are charged
or pledged in favour of the Beneficiaries as provided in
paragraph (b) above; and
(h) any member of the Borrower Group (other than UPC Distribution or
UPC Holding II) may issue shares to any person pursuant to any
agreement or other legally binding arrangement existing, and
disclosed to the Lead Arrangers in writing, on or before the
Signing Date, provided that such share issue does not result in a
Change of Control.
16.25 Shareholder Loans
(a) Each Obligor will procure that prior to any Restricted Person making
any Financial Indebtedness (other than Permitted Payments) available
to any member of the Borrower Group, such Restricted Person shall
enter into a Pledge of Subordinated Shareholder Loans on terms and
conditions satisfactory to the Facility Agent and a Security
Provider's Deed of Accession and provides (i) the Facility Agent with
such documents and evidence as it may reasonably require as to the
power and authority of the Restricted Person to enter into such Pledge
of Subordinated Shareholder Loans and Security Provider's Deed of
Accession and that the same constitute valid and legally binding
obligations of such Restricted Person
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enforceable in accordance with their terms subject (to the extent
applicable) to substantially similar qualifications to those made in
the legal opinions referred to in Schedule 2 (Conditions Precedent
Documents); and (ii) notification of such pledge to the relevant
member of the Borrower Group.
(b) Each Obligor shall ensure that each Subordinated Shareholder Loan and
each shareholder loan entered into between an Obligor which is a party
to an Obligor Pledge of Shareholder Loans as a creditor and a member
of the Borrower Group is governed by the law of The Netherlands.
16.26 Further security over receivables
UPC Distribution shall:
(a) on each date on which it is required to deliver the financial
statements referred to in Clause 16.2(b) (Financial information)
in respect of its second and fourth financial quarters in each
financial year, notify the Facility Agent of the details of any
contracts, agreements or other arrangements entered into by any
member of the Borrower Group with chello broadband N.V. or
Priority Telecom N.V. at any time under which receivables owing
to such member of the Borrower Group aggregating (Euro)10,000,000
(or its equivalent in other currencies) or more are outstanding
on such date, together with details of such receivables; and
(b) if the Facility Agent (acting on the instructions of the Majority
Lenders) requires, promptly grant, or procure the grant by the
relevant member of the Borrower Group of (in each case subject to
receipt of all necessary legal, regulatory, shareholder and
partner approvals, other than approvals from chello broadband
N.V. or Priority Telecom N.V, all of which UPC Distribution will
and will ensure that each member of the Borrower Group will use
all reasonable efforts to obtain as soon as possible) (i) a
pledge in favour of the Beneficiaries over the receivables
referred to in (a) above in substantially the same form as a
receivables pledge already granted to the Security Agent by a
member of the Borrower Group in respect of receivables located
in, or governed by the laws of, or (as the case may be) owed by
or to a person incorporated in, the same jurisdiction as the
relevant receivables or (as the case may be) relevant person by
or to whom such receivables are owed or in such other form as the
Security Agent may reasonably request and (ii) a Security
Provider's Deed of Accession and shall provide the Security Agent
with such evidence as it may reasonably request as to the power
and authority of such member of the Borrower Group to enter into
such pledge of receivables and Security Provider's Deed of
Accession and that the same constitute valid and legally binding
obligations of such member enforceable in accordance with their
terms subject (to the extent possible) to substantially similar
qualifications to those made in the legal opinions referred to in
Schedule 2 (Conditions precedent documents), together with all
such notices and other documents as the Security Agent may
reasonably require to perfect the receivables pledge.
16.27 Financial year end
Each Obligor (other than UPC Distribution Holdco) will, and will
procure that its Subsidiaries which are members of the Borrower Group
will, maintain a financial year end of 31st December, save with the
prior written consent of the Facility Agent (acting on the
instructions of the Majority Lenders in each case not to be
unreasonably withheld).
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16.28 Capital expenditure
Each Obligor (other than UPC Distribution Holdco) will not, and will
procure that no member of the Borrower Group will, incur any material
Capital Expenditure other than in relation to the Permitted Business.
16.29 Constitutive documents
Each Obligor will not, and will procure that no member of the Borrower
Group will, amend its constitutive documents in any way which would or is
reasonably likely to materially adversely effect (in terms of value,
enforceability or otherwise) any charge or pledge over the shares or
partnership interest of any member of the Borrower Group granted to the
Beneficiaries pursuant to the Security Documents.
16.30 ERISA
Each Obligor (other than UPC Distribution Holdco) will, and will procure
that its Subsidiaries which are members of the Borrower Group will, give
the Facility Agent prompt notice of the adoption of, participation in or
contribution to any Plan by it or any ERISA Affiliate, or any action by
any of these to adopt, participate in or contribute to any Plan, or the
incurrence by any of them of any liability or obligation to any Plan.
16.31 US Borrower
(a) Each Borrower will ensure that the proceeds of any loan made to the US
Borrower by UPC Distribution or UPC Holding II and the proceeds of any
drawing made by the US Borrower under Facility C shall be invested by way
of intercompany loan or equity subscription in one or more other members
of the Borrower Group within five Business Days of receipt of such
proceeds or, as the case may be, the relevant Utilisation Date.
(b) To the extent not otherwise prohibited by the Indentures, each Obligor
(other than UPC Distribution Holdco) will ensure that, in accordance with
the terms of any pledge of intercompany loans made by the US Borrower,
any intercompany loan made by the US Borrower to any Obligor or any
Subsidiary of an Obligor which is a member of the Borrower Group is made
on bona fide arm's length commercial terms or on terms which are fair and
reasonable and in the best interests of the US Borrower and entered into
in good faith.
17. FINANCIAL COVENANTS
17.1 Financial definitions
In this Clause 17:
"Adjusted Cable TV Subscribers"
means at any time the aggregate at that time of:
(a) the number of Cable TV Subscribers resident in Western Europe; and
(b) fifty per cent. (50%) of the number of Cable TV Subscribers resident
in Europe (other than Western Europe).
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"Annualised EBITDA"
means, in respect of any Ratio Period, two times EBITDA of the Borrower
Group for that Ratio Period.
"Annualised Revenues"
means, in respect of any Ratio Period, two times the aggregate of the
revenues of the Borrower Group arising from the Distribution Business of
the Borrower Group during that Ratio Period.
"Borrower Group Capitalisation"
means at any time the aggregate of:
(a) Subordinated Shareholder Loans on the date immediately following the
first Utilisation Date and any further Subordinated Shareholder Loans
made since the first Utilisation Date for the purpose of funding the
Acquisition Cost of any Acquisition (other than any further
Subordinated Shareholder Loans made pursuant to Clause 17.4 (Cure
provisions)), to the extent the proceeds of such further Subordinated
Shareholder Loans are at the relevant time held in cash by a member of
the Borrower Group pending utilisation in the relevant Acquisition;
and
(b) the amount of paid up share capital of UPC Distribution on the date
immediately following the first Utilisation Date and the proceeds of
any further equity subscribed in UPC Distribution or any other member
of the Borrower Group by any person that is not a member of the
Borrower Group since the first Utilisation Date for the purpose of
funding the Acquisition Cost of any Acquisition (other than any
further equity subscribed pursuant to Clause 17.4 (Cure provisions)),
in each case to the extent the proceeds of such further equity are at
the relevant time held in cash by a member of the Borrower Group
pending utilisation in the relevant Acquisition,
and in each case to the extent that such further Subordinated Shareholder
Loans or further equity referred to in (a) and (b) above have not been
prepaid or redeemed in accordance with Clause 16.13 (Restricted Payments),
less the aggregate of the Acquisition Cost of all Acquisitions made by any
member of the Borrower Group since the Signing Date which would have been
prohibited under Clause 16.11(a) or (b) (Acquisitions and mergers) were it
not for the operation of Clause 16.11(c) (Acquisitions and mergers).
"Cable TV Subscriber"
means a current subscriber to the cable television services of the Network
who:
(a) has entered into a standard contract of the relevant member of the
Borrower Group (a "Subscription Contract"), requiring regular payments
to be made to such member in respect of that subscriber's subscription
to the cable television services of the Network;
(b) has made first payment to the relevant member of the Borrower Group
under that Subscription Contract; and
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(c) is not more than 90 days overdue in any amount owed to the relevant
member of the Borrower Group under any Subscription Contract to which
that subscriber is party.
"Contributed Capital"
means, at any time, the sum of:
(a) the amount in cash paid up on the share capital of the Borrower Group;
(b) the amount in cash paid up on any share capital of a Subsidiary of UPC
Distribution that is not owned by a member of the Borrower Group; and
(c) the principal amount of outstanding Subordinated Shareholder Loans.
"EBITDA"
means, in respect of any period or person, the Net Income of that person
(plus, in the case of the Borrower Group, any amount attributable to non-
cash compensation payable to employees or directors of members of the
Borrower Group deducted in calculating Net Income, any depreciation,
amortisation, other non-cash charges (such as deferred Taxes), accrued
Management Fees (whether or not paid), fees accrued (whether or not paid)
in respect of Financial Indebtedness and interest expense and other charges
in respect of Financial Indebtedness) for such period adjusted as follows:
(a) minus extraordinary income of the relevant person for such period;
(b) plus any extraordinary expenses of the relevant person for such period;
(c) minus any interest income of the relevant person for such period; and
(d) in the case of the Borrower Group, minus any Management Fees paid
during such period,
to the extent attributed to the Distribution Business of the Borrower Group
and all as determined in accordance with GAAP and (in the case of the
Borrower Group) as shown in the relevant financial statements prepared and
delivered to the Facility Agent pursuant to Clause 16.2(a) or (b)
(Financial information) (as the case may be).
"Interest"
means:
(a) interest and amounts in the nature of interest (including, without
limitation, the interest element of finance leases) accrued;
(b) discount fees and acceptance fees payable or deducted in respect of
any Financial Indebtedness (including all commissions payable in
connection with any letter of credit); and
(c) any net payment (or, if appropriate in the context, receipt) under any
interest rate hedging agreement or instrument (including without
limitation under the Senior Hedging Agreements and (as applicable)
High Yield Hedging Agreements), taking into account any premiums
payable.
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"Net Income"
means, in respect of any period and for any period, the net profit after
Taxes and (in the case of the Borrower Group only) Management Fees, in the
case of the Borrower Group to the extent attributed to the Distribution
Business of the Borrower Group for such period as determined in accordance
with GAAP and (in the case of the Borrower Group) as shown in the financial
statements in respect of such period prepared and delivered to the Facility
Agent pursuant to Clause 16.2(a) or (b) (Financial information).
"Ratio Period"
means each period of approximately 6 months covering two quarterly
Accounting Periods of the Borrower Group ending on each date to which each
set of financial statements required to be delivered under Clause 16.2 (a)
or (b) (Financial information) or (in the case of Clause 4.3 (Pro forma
covenant compliance)), Clause 4.1 (Documentary conditions precedent) are
prepared.
"Revenues"
means, in respect of any Ratio Period, the aggregate of the revenues of the
Borrower Group arising from the Distribution Business of the Borrower Group
during that Ratio Period.
"Senior Debt"
means at any time, the consolidated Financial Indebtedness of the Borrower
Group, excluding:
(a) any Financial Indebtedness which is a contingent obligation of a
member of the Borrower Group; and
(b) any Subordinated Shareholder Loans and Financial Indebtedness referred
to in Clause 16.12(b)(viii), (xi), (xii) and (xiii) (Restrictions on
Financial Indebtedness).
"Senior Debt Service"
means, for any Ratio Period, the sum of:
(a) all scheduled repayments (including scheduled reductions of revolving
credits) of Senior Debt which fell due during such Ratio Period; and
(b) Total Cash Interest for that Ratio Period.
"Total Cash Interest"
means, in respect of any period, the total amount of all Interest paid in
cash in respect of:
(a) Senior Debt and Subordinated Shareholder Loans during such period
(having taken into account the effect of any Senior Hedging
Agreements); and
(b) the High Yield Notes during such period to the extent that the same
are funded by Permitted Payments,
<PAGE>
97
except in each case, to the extent that such payments (other than payments
in respect of Senior Debt) are funded by distributions made by Unrestricted
Subsidiaries to UPC Distribution or any other member of the Borrower Group
and excluding, for the avoidance of doubt, capitalisation of Interest
accrued in respect of Subordinated Shareholder Loans.
17.2 Financial ratios
UPC Distribution will procure that:
(a) Senior Debt divided by Adjusted Cable TV Subscribers for each Ratio
Period which ends prior to 31st March, 2003 shall not exceed
(Euro)725;
(b) Senior Debt for each Ratio Period which ends prior to 31st March, 2003
shall not exceed sixty per cent. of the sum of Contributed Capital and
Senior Debt for that Ratio Period.
(c) Revenues for each Ratio Period which ends on a date specified in
column 1 below shall not be less than the amount specified opposite
such date in Column 2 below:
--------------------------------------------------------------
Test Dates Revenue
--------------------------------------------------------------
30th June, 2000 (Euro)250,000,000
--------------------------------------------------------------
30th September, 2000 (Euro)265,000,000
--------------------------------------------------------------
31st December, 2000 (Euro)285,000,000
--------------------------------------------------------------
31st March, 2001 (Euro)325,000,000
--------------------------------------------------------------
30th June, 2001 (Euro)365,000,000
--------------------------------------------------------------
30th September, 2001 (Euro)385,000,000
--------------------------------------------------------------
31st December, 2001 (Euro)400,000,000
--------------------------------------------------------------
31st March, 2002 (Euro)470,000,000
--------------------------------------------------------------
30th June, 2002 (Euro)540,000,000
--------------------------------------------------------------
30th September, 2002 (Euro)565,000,000
--------------------------------------------------------------
31st December, 2002 (Euro)590,000,000
--------------------------------------------------------------
(d) the ratio of Senior Debt to Annualised Revenues for each Ratio Period
which ends on a date or in a period specified below shall not exceed
the ratio specified in column 2 below opposite such date or period:
Test Dates Ratio
-----------------------------------------------------------------
31st March, 2000 - 31st December, 2000 3.50:1
-----------------------------------------------------------------
31st March, 2001 - 31st December, 2001 3.25:1
-----------------------------------------------------------------
31st March, 2002 3.00:1
-----------------------------------------------------------------
30th June, 2002 - 31st December, 2002 2.75:1
-----------------------------------------------------------------
<PAGE>
98
(e) the ratio of Senior Debt to Annualised EBITDA for each Ratio Period which
ends on a date or in a period specified in column 1 below shall not exceed
the ratio specified in column 2 below opposite such date or period:
<TABLE>
<CAPTION>
------------------------------------------------------
Test Dates Ratio
------------------------------------------------------
<S> <C>
31st March, 2003 7.25:1
------------------------------------------------------
30th June, 2003 6.75:1
------------------------------------------------------
30th September, 2003 6.00:1
------------------------------------------------------
31st December, 2003 5.50:1
------------------------------------------------------
31st March, 2004 5.00:1
------------------------------------------------------
30th June, 2004 4.50:1
------------------------------------------------------
30th September, 2004 4.00:1
------------------------------------------------------
31st December, 2004 3.50:1
------------------------------------------------------
31st March, 2005 3.25:1
------------------------------------------------------
30th June, 2005 2.75:1
------------------------------------------------------
30th September, 2005 2.50:1
------------------------------------------------------
31st December, 2005 2.25:1
------------------------------------------------------
Thereafter 2.00:1
------------------------------------------------------
</TABLE>
(f) the ratio of EBITDA to Total Cash Interest for each Ratio Period which ends
on a date or in a period specified in column 1 below shall not be less than
the ratio specified in column 2 below opposite such date and period:
<TABLE>
<CAPTION>
-----------------------------------------------------
Test Dates Ratio
-----------------------------------------------------
<S> <C>
31st March, 2003 1.75:1
-----------------------------------------------------
30th June, 2003 2.00:1
-----------------------------------------------------
30th September, 2003 2.25:1
-----------------------------------------------------
31st December, 2003 2.50:1
-----------------------------------------------------
30th June, 2004 3.00:1
-----------------------------------------------------
31st December, 2004 3.50:1
and thereafter
-----------------------------------------------------
</TABLE>
(g) the ratio of EBITDA to Senior Debt Service for each Ratio Period which ends
on a date or in a period specified in column 1 below shall not be less than
the ratio specified in column 2 below opposite such date or period:
<TABLE>
<CAPTION>
------------------------------------------------------
Test Dates Ratio
------------------------------------------------------
<S> <C>
31st December, 2003 - 31st December, 2005 1.1:1
------------------------------------------------------
31st March, 2006 and thereafter 1.5:1; and
------------------------------------------------------
</TABLE>
<PAGE>
99
(h) Borrower Group Capitalisation will not at any time following the
first Utilisation Date be less than 3,500,000,000.
17.3 Calculations
For the purposes of Clause 17.2 (Financial ratios), "Contributed Capital"
or "Senior Debt" for any Ratio Period will be calculated on the basis of
Contributed Capital or Senior Debt (as the case may be) outstanding on the
last day of that Ratio Period.
17.4 Cure provisions
(a) UPC Distribution may cure a breach of the financial ratios set out in
Clause 17.2 (a), (b), (d), (e), (f) and (g) (Financial ratios) by
procuring that additional equity is injected into the Borrower Group by
one or more Restricted Persons and/or additional Subordinated Shareholder
Loans are provided to the Borrower Group in an aggregate amount equal to:
(i) in the case of a breach of Clause 17.2(a), (b), (d) or (e)
(Financial ratios), the amount which, if it had been deducted from
Senior Debt for the Ratio Period in respect of which the breach
arose, would have avoided the breach; or
(ii) in the case of a breach of Clause 17.2 (f) or (g) (Financial
ratios), the amount which, if it had been added to EBITDA for the
Ratio Period in respect of which the breach arose, would have
avoided the breach; or
(iii) in the case of a breach of more than one paragraph of Clause 17.2
(Financial ratios), the higher of the relevant amount referred to in
(i) or (ii) above.
(b) A cure under paragraph (a) above will not be effective unless:
(i) the required amount of additional equity or the proceeds of
Subordinated Shareholder Loans is received by the Borrower Group
before delivery of the financial statements delivered under Clause
16.2(a) or (b) (Financial information) which show that Clause 17.2
(Financial ratios) has been breached; and
(ii) in the case of a cure of Clause 17.2(a), (b), (d) or (e) (Financial
ratios), the proceeds of the relevant additional equity or
Subordinated Shareholder Loans are applied in full in or towards
repayment or prepayment of Facility A Advances in accordance with
Clause 7 (Cancellation and Prepayment) and, to the extent of any
surplus after such repayment or prepayment, for the purposes of the
Permitted Business.
(c) No cure may be made under this Clause 17.4:
(i) in respect of more than five Ratio Periods during the life of the
Facilities; or
(ii) in respect of consecutive Ratio Periods.
(d) Where a cure is exercised under this Clause 17.4 in respect of a breach of
Clause 17.2(f) or (g) and the next Ratio Period ends approximately three
months after the Ratio Period in respect of which the cure was made,
EBITDA in respect of that next Ratio Period will be deemed, for the
purposes of Clause 17.2(f) and (g) (Financial ratios), to be increased by
the amount determined under paragraph (a)(ii) above in respect of the
relevant cure. This deemed increase will not be treated as a separate
cure.
<PAGE>
100
17.5 Determinations
(a) Any amount outstanding in a currency other than euros is to be taken into
account at its euro equivalent calculated at the rate used in the latest
accounts delivered to the Facility Agent.
(b) All the terms used above are to be calculated in accordance with the GAAP
on which the preparation of the Original Borrower Group Financial
Statements was based.
(c) If there is a dispute as to any interpretation of or computation for Clause
17.1 (Financial definitions), the interpretation or computation of the
auditors of UPC Distribution shall prevail.
(d) If UPC Distribution is obliged or chooses to prepare its financial
statements on a different basis from the basis used in the preparation of
the Original Borrower Group Financial Statements, such financial statements
shall be accompanied by a statement (providing reasonable detail) from UPC
Distribution either:
(i) confirming that the change(s) would have no effect on the operation
of the ratios set out in Clause 17.2 (Financial ratios); or
(ii) unless otherwise agreed in writing by the Facility Agent (acting upon
the instructions of the Majority Lenders), if the change(s) would
have such an effect, containing a reconciliation demonstrating the
effect of the change(s) (and, for the purpose of calculating the
ratios set out in Clause 17.2 (Financial ratios), such financial
statements will be treated as though adjusted by that reconciliation
so as to exclude the effect of the changes).
18. DEFAULT
18.1 Events of Default
Each of the events set out in Clauses 18.2 (Non-payment) to 18.19 (Material
Adverse Change) (inclusive) is an Event of Default (whether or not caused
by any reason whatsoever outside the control of any Obligor or any other
person).
18.2 Non-payment
An Obligor does not pay on the due date any amount payable by it under the
Finance Documents at the place at, and in the currency in, which it is
expressed to be payable, unless the relevant amount is paid in full within
one Business Day (in the case of principal amounts) or three Business Days
(in the case of other amounts) of the due date.
18.3 Breach of other obligations
(a) An Obligor does not comply with any of Clauses 16.6 (Pari passu ranking),
16.7 (Negative pledge), 16.10 (Disposals), 16.11 (Acquisitions and
mergers), 16.13 (Restricted Payments), 16.14 (Loans and guarantees), 16.19
(Share capital) or 17 (Financial Covenants).
(b) An Obligor does not comply with any provision of the Finance Documents
(other than those referred to in paragraph (a) above or in Clause 18.2
(Non-payment)) and such failure (if capable of remedy before the expiry of
such period) continues unremedied for a period of 28 days from the earlier
of the date on which (i) such Obligor has become aware of the failure to
<PAGE>
101
comply or (ii) the Facility Agent gives notice to UPC Distribution
requiring the same to be remedied.
18.4 Misrepresentation
A representation or warranty made or repeated by any Obligor in or in
connection with any Finance Document or in any certificate or statement
delivered by or on behalf of any Obligor under or in connection with any
Finance Document is incorrect in any material respect when made or deemed
to have been made or repeated and, in the event that any representation or
warranty is capable of remedy, the misrepresentation is not remedied within
28 days of the earlier of the date on which (i) such Obligor has become
aware of the misrepresentation or (ii) the Facility Agent gives notice to
UPC Distribution requiring the same to be remedied.
18.5 Cross default
(a) Subject to paragraph (d) below, any Financial Indebtedness of a member of
the Borrower Group or UPC or UPC Distribution Holdco is not paid when due
or within any originally applicable grace period.
(b) Subject to paragraph (d) below, any Financial Indebtedness of a member of
the Borrower Group or UPC or UPC Distribution Holdco becomes prematurely
due and payable or is placed on demand, in each case as a result of an
event of default (howsoever described) under the document relating to that
Financial Indebtedness.
(c) Subject to paragraph (d) below, any Financial Indebtedness of a member of
the Borrower Group becomes capable of being declared prematurely due and
payable or placed on demand, in each case is a result of an event of
default (howsoever described) under the document relating to that Financial
Indebtedness.
(d) It shall not be an Event of Default under:
(i) this Clause 18.5 where the aggregate principal amount of all
Financial Indebtedness to which any event specified in paragraphs
(a), (b) or (c) relates is less than (Euro)15,000,000 (in the case of
the Borrower Group or UPC Distribution Holdco) or (Euro)50,000,000
(in the case of UPC) or, as the case may be, the equivalent in other
currencies);
(ii) this Clause 18.5 in respect of Financial Indebtedness owing by a
member of the Borrower Group to another member of the Borrower Group
which is permitted under this Agreement; and
(iii) paragraph (c) above, in the case of the Acquisition of an entity
which results in that entity becoming a member of the Borrower Group,
for a period of 180 days following completion of that Acquisition, by
reason only of an event of default (however described) arising in
relation to the Financial Indebtedness of that acquired entity as a
result only of the Acquisition of that acquired entity, provided that
such Financial Indebtedness is not placed on demand, becomes
prematurely due and payable or is otherwise accelerated during that
period).
18.6 Insolvency
(a) The Netherlands: any Obligor, UPC or any Material Subsidiary organised in
The Netherlands is declared bankrupt (in staat van faillissement verklaard)
or enters into a
<PAGE>
102
preliminary or definitive moratorium (in voorlopige of definitieve
surseance van betaling gaan) pursuant to the Dutch Bankruptcy Act
(Faillissementswet); or
(b) Austria: any business reorganisation according to the Austrian Business
Reorganisation Act (Unternehmensreoranisationsgesetz), bankruptcy
(Konkursordnung) or settlement proceedings (Ausgleichsordnung) under the
respective applicable Austrian laws is being opened on any Obligor, or any
Material Subsidiary seated in Austria or any such Obligor or Material
Subsidiary enters into an agreement with its creditors having the same
effect; or
(c) Belgium: any Obligor or any Material Subsidiary incorporated in Belgium is
declared bankrupt under the Bankruptcy Act of 8th August, 1997 of Belgium
(or any replacement enactment therefor which is entered into after the date
of this Agreement) or is otherwise subject to the proceeding provided under
Section 8 of that Bankruptcy Act; or
(d) Norway: with respect to any Obligor or any Material Subsidiary
incorporated in Norway, any order of a competent court or an event
analogous thereto shall be made or any effective resolution passed with a
view to the bankruptcy, composition proceedings, debt negotiations,
liquidation, winding-up or similar event pursuant to the Norwegian
Bankruptcy Act of 8th June, 1984 or any replacement enactment therefor
which is entered into after the date of this Agreement; or
(e) United States of America: any Obligor or any Material Subsidiary which is
a partnership, or a partner of any partnership, formed under the laws of
the states of Colorado or Delaware, United States or which is incorporated
under the laws of a State of the United States (each a "U.S. Obligor"):
(i) admit in writing its inability to, or be generally unable to, pay
its debts as such debts become due;
(ii) shall have had appointed a receiver, a custodian, trustee or similar
official for, or a receiver, custodian, trustee or similar official
shall have taken possession of, all or substantially all of its
assets, in proceedings brought by or against such Obligor or
Material Subsidiary, and such appointment shall not have been
discharged or such possession shall not have been terminated within
sixty days after the effective date thereof or such Obligor or
Material Subsidiary shall have consented to or acquiesced in such
appointment or possession;
(iii) shall have filed a petition for relief under the insolvency,
bankruptcy or similar laws of the United States of America or any
state thereof, or an involuntary petition for such relief shall have
been filed against any such Obligor or Material Subsidiary under
such laws and shall not have been dismissed or terminated within
sixty days after such involuntary petition is filed; or
(iv) shall have failed to have discharged or obtained a stay of any
proceeding to enforce, within a period of forty-five days after the
commencement thereof, any attachment, sequestration or similar
proceeding asserted against all or substantially all of the assets
of such Obligor or Material Subsidiary; or
(f) Czech Republic: any Obligor or any Material Subsidiary which is
incorporated in or which has a branch office in the Czech Republic is, or
is deemed for the purposes of the applicable Czech law to be, unable to pay
its debts as they fall due or, for the purpose of Section 1, sub-sections 2
and 3 of Act 328/1991 Coll., as amended, on Bankruptcy and Composition (the
<PAGE>
103
"Czech Bankruptcy Act") to be insolvent (in Czech, "v upadku") or admits
inability to pay its debts as they fall due; or is subject in the Czech
Republic to:
(i) bankruptcy proceedings under the Czech Bankruptcy Act;
(ii) involuntary composition proceedings under the Czech Bankruptcy Act;
(iii) voluntary composition proceedings under the Czech Bankruptcy Act;
(iv) voluntary winding up with liquidation under Act No. 513/1991 Coll.,
as amended (the "Czech Commercial Code"); or
(v) involuntary winding up with liquidation under the Czech Commercial
Code; or
(g) Republic of Hungary: any Obligor or any Material Subsidiary which is
incorporated or which has a branch office in the Republic of Hungary:
(i) shall have filed a petition for bankruptcy (csod) under the Act IL
of 1991, as amended, on Bankruptcy Proceedings, Liquidation
Proceedings and Voluntary Dissolution ("Hungarian Bankruptcy Act");
or
(ii) shall have been the subject of an order for execution against its
assets which was unsuccessful as referred to in section 27(2) of the
Hungarian Bankruptcy Act; or
(iii) is not paying its debts as such debts become due as referred to in
section 27(2) of the Hungarian Bankruptcy Act; or
(iv) shall have filed a petition for voluntary liquidation (felszamolas)
under the Hungarian Bankruptcy Act; or
(v) an involuntary liquidation (felszamolas) proceedings shall have been
commenced against it under the Hungarian Bankruptcy Act; or
(vi) an involuntary liquidation (felszamolas) proceedings shall have been
commenced against its branch office under the Act CXXXII of 1997 on
Hungarian Branch Offices and Representative Offices of Foreign-
Registered Companies; or
(h) Sweden: any Obligor or any Material Subsidiary which is incorporated in
Sweden takes any corporate action or any order is made or resolution passed
for the suspension of payments, business reorganisation
(foretagsrekonstruktion), liquidation or bankruptcy of any such Obligor or
Material Subsidiary or a liquidator, receiver, insolvency manager,
reconstruction manager (foretagsrekonstruktor) or similar officer is
appointed in respected of any such Obligor or Material Subsidiary; or
(i) France: any Obligor or Material Subsidiary which is incorporated in France:
(i) admits in writing its inability to pay its debts generally as they
become due;
(ii) declares to the court such inability (declaration de cessation des
paiements);
(iii) applies for or takes any corporate action approving any voluntary
liquidation (liquidation volontaire);
<PAGE>
104
(iv) applies for the appointment of a conciliator (conciliateur), within
the meaning of French law No. 84-148 of 1st March, 1984;
(v) enters into an amicable settlement (accord amiable) with its
creditors;
(vi) ceases its payments (cessation de paiements) for the purposes of
Article 3 of the French bankruptcy law No. 85-98 of 25th January,
1985;
(vii) has a judgment issued in respect of its judicial reorganisation
(redressement judiciaire) and the administrateur judiciaire named in
connection with such proceedings does not (or is deemed not to) opt
to continue performance of this Agreement; or
(viii) has a judgment issued in respect of its judicial liquidation
(liquidation judiciaire) pursuant to French law No. 85-98 of 25th
January, 1985, or pursuant to such law, for the transfer of the
whole or part of its business (cessation totale ou partielle de
l'entreprise); or
(j) Republic of Poland: any Obligor or any Material Subsidiary which has its
seat or which has a branch office in the Republic of Poland:
(i) shall have filed a petition for declaration of its bankruptcy; or
(ii) shall have a petition for declaration of its bankruptcy filed
against it by any of its creditors; or
(iii) shall have been declared bankrupt; or
(iv) is not paying its debts as such debts become due or its assets are
insufficient to cover its liabilities; or
(v) shall have filed a petition for voluntary arrangement with its
creditors; or
(vi) shall have liquidation (whether voluntary or involuntary)
proceedings commenced against it; or
(vii) shall have a liquidator, bankruptcy administrator (syndyk), judge-
supervisor (sedzia komisarz), court supervisor (nadzorca sad wy),
compulsory manager or management (zarz d lub zarz dca przymusowy lub
komisaryczny) appointed in respect of itself or in respect of any of
its assets; or
(k) Slovak Republic:
(i) any Obligor or any Material Subsidiary which is incorporated in or
which has a branch office in the Slovak Republic is insolvent as
provided under Act No. 328/1991 Coll., as amended, on Bankruptcy and
Composition (the "Slovak Bankruptcy Act");
(ii) any Obligor or any Material Subsidiary which is incorporated in or
which has a branch office in the Slovak Republic is subject in the
Slovak Republic to:
(A) bankruptcy proceedings under the Slovak Bankruptcy Act;
(B) involuntary composition proceedings under the Slovak Bankruptcy
Act;
<PAGE>
105
(C) voluntary composition proceedings under the Slovak Bankruptcy
Act;
(D) voluntary winding up with liquidation under Act No. 513/1991
Coll., as amended (the "Slovak Commercial Code"); or
(E) involuntary winding up with liquidation under the Slovak
Commercial Code; or
(l) Romania: any Obligor or any Material Subsidiary incorporated in Romania,
is subject to an order of a syndic judge for the commencement of
bankruptcy, reorganisation or liquidation proceedings or similar event
pursuant to Law No. 64/1995 regarding Judicial Reorganisation and
Bankruptcy, as republished with the Official Gazette No. 608/13th December,
1999, or any amendment or replacement enactment therefor which is issued
after the date of this Agreement.
18.7 Insolvency proceedings
(a) Any formal voluntary step commencing legal proceedings (including petition
or convening a meeting) is taken by any Obligor, UPC or any Material
Subsidiary with a view to a composition, assignment or arrangement with any
class of creditors of any Obligor, UPC or any Material Subsidiary; or
(b) a meeting of any Obligor, UPC or any Material Subsidiary is convened by its
directors, managing partner (in the case of the US Borrower) or secretary
for the purpose of considering any resolution for (or to petition for) its
winding-up, dissolution or for its administration, suspension of payments,
composition or bankruptcy or any such resolution is passed; or
(c) any person files, with the appropriate legal authorities, a petition for
the winding-up or for the administration or for the bankruptcy of any
Obligor, UPC or any Material Subsidiary and the petition is not discharged
or stayed within 45 days (or, in the case of a US Obligor, 60 days); or
(d) an order for the winding-up or administration of any Obligor, UPC or any
Material Subsidiary is made,
in each case other than in connection with a reconstruction or amalgamation
on terms approved by the Facility Agent (acting on the instructions of the
Majority Lenders).
18.8 Appointment of receivers and managers
(a) Any liquidator, trustee-in-bankruptcy, preliminary trustee, composition
trustee, judicial custodian, compulsory manager, receiver, administrative
receiver or administrator is appointed in respect of any Obligor, UPC, or
any Material Subsidiary or any part of its assets which is material in the
context of the Borrower Group (taken as a whole) and, only in the case of
the appointment of a judicial custodian, compulsory manager or receiver, is
not discharged within 45 days (or, in the case of a US Obligor, 60 days);
or
(b) the directors of any Obligor, UPC or any Material Subsidiary request the
appointment of a liquidator, trustee in bankruptcy, preliminary trustee,
composition trustee, judicial custodian, compulsory manager, receiver,
administrative receiver or administrator,
in each case other than in connection with a reconstruction or amalgamation
on terms approved by the Facility Agent (acting on the instructions of the
Majority Lenders).
<PAGE>
106
18.9 Creditors' process
A distress, execution, attachment or other legal process is levied,
enforced or sued out upon or against all or any part of the assets of any
Obligor, UPC or any Material Subsidiary which is material in the context
of the Borrower Group (taken as a whole), except where the same is being
contested in good faith or is removed, discharged or paid within 45 days
(or, in the case of a US Obligor, 60 days).
18.10 Similar proceedings
Anything which has an equivalent effect to any of the events specified in
Clauses 18.6 (Insolvency) to 18.9 (Creditors' process) (inclusive) shall
occur under the laws of any applicable jurisdiction in relation to any
Obligor, UPC or any Material Subsidiary.
18.11 Unlawfulness
It is or becomes unlawful for any Obligor or Subordinated Creditor to
perform any of its payments or other material obligations under the
Finance Documents to which it is a party.
18.12 Repudiation
Any Obligor or Subordinated Creditor repudiates, or evidences an
intention to repudiate, any Finance Document to which it is a party.
18.13 Cessation of Distribution Business
The Borrower Group (taken as a whole) or UPC ceases to carry on all or
substantially all of its Distribution Business.
18.14 Seizure
All or a material part of the undertakings, assets, rights or revenues
of, or shares or other ownership interests in, UPC, UPC Distribution
Holdco or the Borrower Group (taken as a whole but excluding any
undertaking, assets, rights or revenues which do not form part of the
Distribution Business) are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any government.
18.15 Environmental Matters
As a result of any Environmental Law any of the Finance Parties becomes
subject to a material obligation (actual or contingent and, in the case
of any contingent obligation, being one which, at the relevant time,
would be likely to arise) directly as a result of it entering into any of
the Finance Documents which was not caused by its negligence or wilful
default.
18.16 Breach of Security Deed
(a) A Subordinated Creditor fails to comply with any of its obligations under
the Security Deed or the Pledge of Subordinated Shareholder Loans to
which it is party and such failure (if capable of remedy before the
expiry of such period) continues unremedied for a period of 28 days from
the earlier of the date on which (i) UPC or UPC Distribution has become
aware of the failure to comply or (ii) the Facility Agent gives notice to
the relevant Subordinated Creditor and UPC Distribution requiring the
same to be remedied.
<PAGE>
107
(b) Any representation or warranty made by a Subordinated Creditor under the
Security Deed or the Pledge of Subordinated Shareholder Loans is
incorrect in any material aspect when made or repeated and, in the event
that any representation or warranty is capable of remedy, the
misrepresentation is not remedied within 28 days of the earlier of the
date on which (i) such Obligor has become aware of the misrepresentation
or (ii) the Facility Agent gives notice to that Subordinated Creditor
requiring the same to be remedied.
18.17 Loss of Licences
Any Licence is in whole or part:
(a) terminated, suspended or revoked or does not remain in full force
and effect or otherwise expires and is not renewed prior to its
expiry (in each case, without replacement by Licence(s) having
substantially equivalent effect) in any case in a manner which would
or is reasonably likely to have a Material Adverse Effect; or
(b) is modified or is breached in a manner which would or is reasonably
likely to have a Material Adverse Effect.
18.18 Material Contracts
(a) Except as is required by any term of this Agreement, any Material Contract
to which a member of the Borrower Group is a party is terminated,
suspended, revoked or cancelled or otherwise ceases to be in full force
and effect, unless:
(i) in the case of an Interconnect Agreement only, services of a similar
nature to those provided pursuant to such Material Contract are at
all times provided to the Borrower Group on terms which are not
materially more onerous on the relevant member of the Borrower Group
or on the terms imposed by the mandatory requirements of any
regulatory body; or
(ii) such termination, suspension, revocation, cancellation or cessation
(in the reasonable opinion of the Facility Agent) would not or is
not reasonably likely to have a Material Adverse Effect.
(b) Any alteration or variation is made to any term of any Material Contract
to which a member of the Borrower Group is a party which individually or
cumulatively (in the reasonable opinion of the Facility Agent) would or is
reasonably likely to have a Material Adverse Effect.
(c) Any party breaches any term of or repudiates any of its obligations under
any Material Contract to which a member of the Borrower Group is a party
where such breach or repudiation (in the opinion of the Facility Agent
exercised reasonably) would or is reasonably likely to have a Material
Adverse Effect unless, in the case of a breach of a Material Contract by
any person other than any member of the Borrower Group, the relevant
services are at all relevant times provided to the appropriate members of
the Borrower Group on the basis set out in (a) above.
18.19 Material Adverse Change
Any event or series of events occurs which would or is reasonably likely
to have a Material Adverse Effect.
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108
18.20 ERISA
The occurrence of:
(a) any event or condition that presents a material risk that any member
of the Borrower Group or any ERISA Affiliate may incur a material
liability to a Plan or to the United States Internal Revenue Service
or to the United States Pension Benefit Guaranty Corporation; or
(b) an "accumulated funding deficiency" (as that term is defined in
section 412 of the United States Internal Revenue Code of 1986, as
amended, or section 302 of ERISA), whether or not waived, by reason
of the failure of any member of the Borrower Group or any ERISA
Affiliate to make a contribution to a Plan.
18.21 Acceleration
On and at any time after the occurrence of an Event of Default while such
event is continuing the Facility Agent may, and if so directed by the
Majority Lenders will, by notice to UPC Distribution declare that an Event
of Default has occurred and:
(a) cancel the Total Commitments; and/or
(b) declare that all the Advances be payable on demand, whereupon they
shall immediately become payable on demand by the Facility Agent on
the instructions of the Majority Lenders; and/or
(c) demand that all the Advances be immediately due and payable,
whereupon they shall become immediately due and payable together with
all interest accrued on those Advances and all other amounts payable
by the Obligors under the Finance Documents.
19. FACILITY AGENT, SECURITY AGENT, LEAD ARRANGERS AND LENDERS
19.1 Appointment and duties of the Agents
(a) Each Lender and Lead Arranger irrevocably appoints each Agent to act as
its agent under and in connection with the Finance Documents.
(b) Each Finance Party appointing each Agent irrevocably authorises each Agent
on its behalf to:
(i) perform the duties and to exercise the rights, powers and discretions
that are specifically delegated to it under or in connection with the
Finance Documents, together with any other incidental rights, powers
and discretions; and
(ii) execute each Finance Document expressed to be executed by the
Facility Agent on that Finance Party's behalf.
(c) Each Agent shall have only those duties which are expressly specified in
this Agreement. Those duties are solely of a mechanical and administrative
nature.
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19.2 Role of the Lead Arrangers
Except as otherwise provided in this Agreement, no Lead Arranger has any
obligations of any kind to any other Party under or in connection with any
Finance Document.
19.3 Relationship
The relationship between each Agent and the other Finance Parties is that
of agent and principal only. Nothing in this Agreement constitutes either
Agent as trustee or fiduciary for any other Party or any other person and
neither Agent need hold in trust any moneys paid to it for a Party save as
provided in the Finance Documents or be liable to account for interest on
those moneys.
19.4 Majority Lenders' directions
(a) Each Agent will be fully protected if it acts in accordance with the
instructions of the Majority Lenders in connection with the exercise of
any right, power or discretion or any matter not expressly provided for in
the Finance Documents. Any such instructions given by the Majority Lenders
will be binding on all the Lenders. In the absence of such instructions
each Agent may act as it considers to be in the best interests of all the
Lenders.
(b) No Agent is authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.
19.5 Delegation
Each Agent may act under the Finance Documents through its personnel and
agents.
19.6 Responsibility for documentation
Neither Agent nor any Lead Arranger is responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or sufficiency
of any Finance Document or any other document by any other Party;
(b) the collectability of amounts payable under any Finance Document;
(c) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document (including the Information
Memorandum) by any other Party; or
(d) the integrity or security of any Finance Document or other document
or information posted or distributed electronically on any intranet
based system (or similar) in connection with the preparation,
negotiation and execution of the Finance Documents or the syndication
or administration of the Facilities.
19.7 Default
(a) Neither Agent is obliged to monitor or enquire as to whether or not a
Default has occurred. Neither Agent will be deemed to have knowledge of
the occurrence of a Default. However, if an Agent receives notice from a
Party referring to this Agreement, describing the Default and stating that
the event is a Default, it shall promptly notify the Lenders of such
notice.
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(b) Each Agent may require the receipt of security satisfactory to it whether
by way of payment in advance or otherwise, against any liability or loss
which it will or may incur in taking any proceedings or action arising out
of or in connection with any Finance Document before it commences these
proceedings or takes that action.
19.8 Exoneration
(a) Without limiting paragraph (b) below, neither Agent will be liable for any
action taken or not taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee or agent
of either Agent in respect of any claim it might have against that Agent
or in respect of any act or omission of any kind (including negligence or
wilful misconduct) by that officer, employee or agent in relation to any
Finance Document.
(c) Any officer, employee or agent of either Agent may rely on this Clause
19.8 and enforce its terms under the Contracts (Rights of Third Parties)
Act 1999.
19.9 Reliance
Each Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any person
regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Facility Agent's employment
and those representing a Party other than the Facility Agent).
19.10 Credit approval and appraisal
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms that it:
(a) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by
either Agent or the Lead Arrangers in connection with any Finance
Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
19.11 Information
(a) Each Agent shall promptly forward to the person concerned the original or
a copy of any document which is delivered to that Agent by a Party for
that person.
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(b) Except where this Agreement specifically provides otherwise, neither Agent
is obliged to review or check the accuracy or completeness of any document
it forwards to another Party.
(c) Except as provided above, neither Agent has a duty:
(i) either initially or on a continuing basis to provide any Lender with
any credit or other information concerning the financial condition
or affairs of any Obligor or any related entity of any Obligor
whether coming into its possession or that of any of its related
entities before, on or after the Signing Date; or
(ii) unless specifically requested to do so by a Lender in accordance
with this Agreement, to request any certificates or other documents
from any Obligor.
19.12 Each Agent and the Lead Arrangers individually
(a) If it is also a Lender, each of the Facility Agent, the Security Agent and
the Lead Arrangers has the same rights and powers under this Agreement as
any other Lender and may exercise those rights and powers as though it
were not the Facility Agent, Security Agent or (as applicable) a Lead
Arranger.
(b) Each of the Agents and the Lead Arrangers may:
(i) carry on any business with an Obligor or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its activities
under the Finance Documents, or in relation to any of the foregoing.
19.13 Indemnities
Each Lender shall indemnify each Agent, within three Business Days of
demand, against any cost, loss or liability incurred by the relevant Agent
(otherwise than by reason of the relevant Agent's gross negligence or
wilful misconduct) in acting as Agent under the Finance Documents (unless
the relevant Agent has been reimbursed by an Obligor pursuant to a Finance
Document). Such indemnification shall be pro rata to its Commitments (and
for the purposes of calculating this proportion, the amount of the Total
Facility C Commitments and each Lender's Facility C Commitments shall be
converted to euros at the Agent's Spot Rate of Exchange on the date of the
relevant calculation).
19.14 Compliance
(a) Each Agent may refrain from doing anything which might, in its reasonable
opinion, constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person, and may do anything which, in its
reasonable opinion, is necessary or desirable to comply with any law or
regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, neither Agent need disclose any
information relating to any Obligor or any of its related entities if the
disclosure might, in the opinion of the relevant Agent, constitute a
breach of any law or regulation or any duty of secrecy or confidentiality
or be otherwise actionable at the suit of any person.
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19.15 Resignation of Agents
(a) Notwithstanding its irrevocable appointment (but subject to paragraphs (f)
and (g) below), each Agent may resign by giving notice to the Lenders and
UPC Distribution, in which case the relevant Agent may, following
consultation with and with the consent of UPC Distribution (not to be
unreasonably withheld or delayed) forthwith appoint one of its Affiliates
as successor Agent or, failing that, the Majority Lenders may with the
consent of UPC Distribution (not to be unreasonably withheld or delayed)
appoint a reputable and experienced bank as successor Agent. The
resignation of the Security Agent is subject to compliance with Clause 9.1
(Retirement of Security Agent) of the Security Deed.
(b) If the appointment of a successor Agent is to be made by the Majority
Lenders but they have not, within 30 days after notice of resignation,
appointed a successor Agent which accepts the appointment, the retiring
Agent may, following consultation with and with the consent of UPC
Distribution (not to be unreasonably withheld or delayed), appoint a
successor Agent.
(c) The resignation of the retiring Agent and the appointment of any successor
Agent will both become effective only upon the successor Agent notifying
all the Parties that it accepts the appointment. On giving the
notification and receiving such approval, the successor Agent will succeed
to the position of the retiring Facility Agent and the term "Facility
Agent" or "Security Agent" (as the case may be) will mean the successor
Facility Agent or Security Agent, respectively.
(d) The retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 19 shall continue to
benefit the retiring Agent in respect of any action taken or not taken by
it under or in connection with the Finance Documents while it was the
relevant Agent and, subject to paragraph (d) above, it shall have no
further obligation under any Finance Document.
(f) The Majority Lenders may by notice to an Agent require it to resign in
accordance with paragraph (a) above. In this event, the relevant Agent
shall resign in accordance with paragraph (a) above but it shall not be
entitled to appoint one of its Affiliates as successor Agent.
(g) UPC Distribution may, if it is unsatisfied (acting reasonably) with the
performance by an Agent of its role as Agent, following a period of
consultation with the relevant Agent of not less than 14 days, by notice
to that Agent require it to resign in accordance with paragraph (a) above.
Such notice must specify the reasons for which UPC Distribution is seeking
the Agent's resignation, which must be based on reasonable grounds. In
this event, the relevant Agent shall resign in accordance with paragraph
(a) above but it shall not be entitled to appoint one of its Affiliates as
successor Agent.
19.16 Lenders
(a) Each Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and as acting through its Facility Office(s) until it has
received notice from the Lender to the contrary by not less than five
Business Days prior to the relevant payment.
(b) Each Lender, on the date on which it becomes a party to this Agreement,
represents to the Facility Agent that it is:
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(i) either:
(A) not resident in the United Kingdom for United Kingdom Tax
purposes; or
(B) a "bank" as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United Kingdom;
and
(ii) beneficially entitled to the principal and interest payable by the
Facility Agent to it under this Agreement,
and shall forthwith notify the Facility Agent if either representation
ceases to be correct.
19.17 Separate divisions
In acting as an Agent or Lead Arranger, the agency and syndication's
division of each of the Agents and the Lead Arrangers shall be treated as
a separate entity from its other divisions and departments. Any
information acquired at any time by either Agent or any Lead Arranger
otherwise than in the capacity of Agent or Lead Arranger through its
agency and syndication's division (whether as financial adviser to any
member of the Borrower Group or otherwise) may be treated as confidential
by the relevant Agent or Lead Arranger and shall not be deemed to be
information possessed by the relevant Agent or Lead Arranger in its
capacity as such. Each Finance Party acknowledges that each Agent and the
Lead Arrangers may, now or in the future, be in possession of, or
provided with, information relating to the Obligors which has not or will
not be provided to the other Finance Parties. Each Finance Party agrees
that, except as expressly provided in this Agreement, neither Agent nor
any Lead Arranger will be under any obligation to provide, or be under
any liability for failure to provide, any such information to the other
Finance Parties.
20. FEES
20.1 Commitment fee
(a) Subject to paragraph (b) below UPC Distribution shall pay to the Facility
Agent for distribution to each Lender pro rata to the proportion that the
relevant Lender's Facility A Commitment, Facility B Commitment or
Facility C Commitment bears to the Total Facility A Commitment, Total
Facility B Commitment or Total Facility C Commitment respectively from
time to time a commitment fee (subject to sub-clause (b) below) computed
at the rate of 0.75 per cent. per annum on any undrawn, uncancelled
amount of the Total Facility A Commitment, Total Facility B Commitment
and Total Facility C Commitment, PROVIDED THAT on any day that the
aggregate outstanding Advances exceed 50 per cent. of the aggregate drawn
and undrawn Total Facility A Commitments, Total Facility B Commitments
and Total Facility C Commitments the commitment fee shall be computed at
the rate which is the lower of:
(i) 50 per cent. of the then applicable Margin; and
(ii) 0.50 per cent. per annum,
on any undrawn, uncancelled amount of the Total Facility A Commitment,
Total Facility B Commitment and Total Facility C Commitment.
In calculating aggregate outstanding Facility C2 Advances and Total
Facility C Commitments for the purposes of the proviso to this Clause
20.1(a), outstanding Facility C2 Advances and
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Facility C2 Commitments shall be converted to euros on the date of the
relevant calculation on the basis of the Agent's Spot Rate of Exchange on
that date.
(b) Commitment fee is calculated and accrues on a daily basis on and from the
Signing Date and is payable quarterly in arrear from the Signing Date and
(in the case of the Total Facility A Commitment) on the last day of the
Facility A Availability Period, (in the case of the Total Facility B
Commitment) on the last day of the Facility B Availability Period and (in
the case of the Total Facility C Commitment) on the last day of the
Facility C Availability Period. Accrued commitment fee is also payable to
the Facility Agent for the relevant Lender(s) on the cancelled amount of
its (their) Facility A Commitment, Facility B Commitment or Facility C
Commitment, as the case may be, at the time the cancellation takes effect
(but only in respect of the period up to the date of cancellation).
(c) Commitment fee is payable in euros in respect of Facility A, Facility B
and Facility C1 and in Dollars in respect of Facility C2.
20.2 Agents' fees
UPC Distribution shall pay to the Facility Agent and the Security Agent
for their own account an agency fee in the amounts and on the dates
agreed in the relevant Fee Letter.
20.3 Underwriting Fee
UPC Distribution shall pay the arrangement fee and underwriting fees in
accordance with the relevant Fee Letter.
20.4 VAT
Any fee referred to in this Clause 20 (Fees) is exclusive of any
applicable value added tax. If any value added tax is so chargeable and
is invoiced, it shall be paid by UPC Distribution at the same time as it
pays the relevant fee. Where appropriate, the relevant Finance Party will
supply a VAT invoice in respect of such fees.
21. EXPENSES
21.1 Transaction Expenses
UPC Distribution shall within ten Business Days of demand pay Chase
Manhattan plc and TD Bank Europe Limited the amount of all costs and
expenses (including legal fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing, execution,
perfection and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Document executed after the date of this
Agreement.
21.2 Amendment Costs
If:
(a) an Obligor requests an amendment, waiver or consent under or in
connection with any Finance Document;
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(b) an amendment is required under Clause 25.3 (Change of Currency),
UPC Distribution shall, within ten Business Days of demand, reimburse the
Facility Agent or, as the case may be, the Security Agent, for the amount
of all costs and expenses (including legal fees) reasonably incurred by
the Facility Agent or, as the case may be, the Security Agent in
responding to, evaluating, negotiating or complying with that request or
requirement.
21.3 Enforcement Costs
UPC Distribution shall, within ten Business Days of demand, pay to the
Facility Agent on behalf of each Finance Party the amount of all costs
and expenses (including legal fees) incurred by that Finance Party in
connection with the enforcement of, or the preservation of any rights
under, any Finance Document.
22. Stamp Duties
UPC Distribution shall pay and, within ten Business Days of demand,
indemnify each Finance Party against any cost, loss or liability which
that Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document (other
than those imposed by reason of any assignment or novation by any Finance
Party).
23. INDEMNITIES
23.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a "Sum"), or
any order, judgment or award given or made in relation to a Sum, has to
be converted from the currency (the "First Currency") in which that Sum
is payable into another currency (the "Second Currency") for the purpose
of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within ten Business Days
of demand, indemnify each Finance Party to whom that Sum is due against
any cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (A) the rate of exchange
used to convert that Sum from the First Currency into the Second Currency
and (B) the rate or rates of exchange available to that person at the
time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
23.2 Other indemnities
UPC Distribution shall (or shall procure that an Obligor will), within
ten Business Days of demand, indemnify each Lender against any cost, loss
or liability incurred by that Lender as a result of:
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(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 29 (Pro rata
sharing);
(c) funding, or making arrangements to fund, its participation in an
Advance requested by a Borrower in a Request but not made by reason
of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that
Lender alone); or
(d) an Advance (or part of an Advance) not being prepaid in accordance
with a notice of prepayment given by a Borrower.
23.3 Indemnity to the Facility Agent
UPC Distribution shall, within ten Business Days of demand, indemnify the
Facility Agent against any cost, loss or liability incurred by the
Facility Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
23.4 Break Costs
(a) UPC Distribution shall, within ten Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all or
any part of an Advance or Unpaid Sum being paid by that Borrower on a day
other than the last day of an Interest Period for that Advance or Unpaid
Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by
the Facility Agent, provide a certificate (which shall be provided to UPC
Distribution) confirming the amount of its Break Costs for any Interest
Period in which they accrue.
24. EVIDENCE AND CALCULATIONS
24.1 Accounts
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate.
24.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount
payable under this Agreement or otherwise expressed to be determined by a
Finance Party is, in the absence of manifest error, prima facie evidence
of the matters to which it relates.
24.3 Calculations
The interest and the fees payable under Clause 20.1 (Commitment fee)
accrue from day to day and are calculated on the basis of the actual
number of days elapsed and a year of 360 days or,
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where practice in the London inter-bank market, in the case of non-euro
amounts, or the European interbank market, in the case of euro amounts,
otherwise dictates, 365 days.
25. AMENDMENTS AND WAIVERS
25.1 Required consents
(a) Subject to Clause 25.2 (Exceptions) any term of the Finance Documents may
be amended or waived only with the consent of the Majority Lenders and
UPC Distribution and any such amendment or waiver will be binding on all
Parties.
(b) The Facility Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
25.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which relates
to:
(i) the definitions of "Majority Lenders" or "Majority Facility C
Lenders" in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount of principal,
interest or commitment fees under this Agreement or the Security
Documents or the extension of the Facility A Availability Period,
Facility B Availability Period or Facility C Availability Period;
(iii) a reduction in the Margin other than in accordance with Clause
8.10 (Margin) or the amount of any payment of principal, interest,
fees or commission payable under this Agreement or the Security
Documents;
(iv) an increase in a Lender's Facility A Commitment, Facility B
Commitment or Facility C Commitment;
(v) an assignment, transfer, novation or other disposal of any of, or
any interest in, an Obligor's rights and/or obligations under this
Agreement other than in accordance with Clause 26 (Changes to the
Parties);
(vi) any provision which expressly requires the consent of all the
Lenders;
(vii) Clause 2.5 (Nature of a Finance Party's rights and obligations),
Clause 26.2 (Transfer by Lenders) or this Clause 25;
(viii) a release of the guarantee under Clause 14 (Guarantee) other than
in accordance with Clause 26 (Changes to the Parties);
(ix) the selection of an Interest Period exceeding six months; or
(x) the release of an asset from a Security Document (except as
otherwise expressly permitted herein or in any such Security
Document and except in furtherance of a disposal or any other
transaction which is permitted by any Finance Document),
shall not be made without the prior consent of all the Lenders.
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(b) An amendment or waiver which relates to the rights or obligations of the
Facility Agent or the Lead Arrangers may not be effected without the
consent of the Facility Agent or, as the case may be, the Lead Arrangers.
(c) An amendment or waiver which has the effect of changing or relates to
Clause 7.10 (Facility C Call Protection) may not be effected without the
consent of the Majority Facility C Lenders.
(d) The Facility Agent may agree with UPC Distribution any amendment to or
the modification of the provisions of any of the Finance Documents or any
Schedule thereto, which is necessary to correct a manifest error.
(e) If authorised by the Majority Lenders, the Security Agent may, subject to
paragraph (a) above, grant any waiver or consent in relation to, or
variation of the material provisions of, any Security Document.
25.3 Change of Currency
(a) If more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful currency of
that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that country
shall be translated into, or paid in, the currency or currency unit
of that country designated by the Agent; and
(ii) any translation from one currency or currency unit to another shall
be at the official conversion rate recognised by the central bank
for the conversion of that currency or currency unit into the other,
rounded up or down by the Agent acting reasonably.
(b) If a change in any currency of a country occurs, this Agreement will be
amended to the extent the Agent specifies to be necessary to reflect the
change in currency and to put the Banks in the same position, so far as
possible, that they would have been in if no change in currency had
occurred.
25.4 Waivers and remedies cumulative
The rights of each Party under the Finance Documents:
(a) may be exercised as often as necessary, subject to the terms of the
relevant Finance Documents;
(b) are cumulative and not exclusive of its rights under the general law;
and
(c) may be waived only in writing and specifically.
Delay in the exercise or non-exercise of any such right is not a waiver
of that right.
26. CHANGES TO THE PARTIES
26.1 Transfers by Obligors
(a) No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under this Agreement, except:
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(i) pursuant to a merger in accordance with Clause 16.11(d)
(Acquisitions and mergers); and
(ii) that UPC Distribution Holdco ("Existing UPC Distribution Holdco")
may at any time assign, transfer, novate or dispose of all of its
rights and obligations under this Agreement and the other Finance
Documents to which it is a party to another person which is the
immediate Holding Company of UPC Distribution ("New UPC
Distribution Holdco") in accordance with the terms of this
Agreement and the terms of such other Finance Document, provided
that any transfer or novation of obligations by Existing UPC
Distribution Holdco will not be effective until New UPC
Distribution Holdco has become an Additional Guarantor in
accordance with Clause 26.4 (Additional Guarantors) and has
delivered or delivers the documents specified in Clause 26.4(a)
(iv) (Additional Guarantors).
(b) At the time the foregoing conditions for the transfer or novation of
Existing UPC Distribution Holdco's obligations shall have been satisfied
(or waived, as the case may be) and such transfer or novation has taken
effect:
(i) Existing UPC Distribution Holdco will be released from its
obligations under this Agreement and the other Finance Documents,
without prejudice to any such obligations which may have accrued
and shall not have been discharged prior to such time; and
(ii) Existing UPC Distribution Holdco will cease to be an Original
Guarantor.
26.2 Transfers by Lenders
(a) A Lender (the "Existing Lender") may at any time assign, transfer or
novate any of its rights and/or obligations under this Agreement and the
other Finance Documents to another person (the "New Lender"), provided
that in the case of a partial assignment, transfer or novation of rights
and/or obligations, such assignment, transfer or novation shall be in a
minimum amount (in relation to Facility A Commitment or Facility B
Commitment) of 5,000,000, or (in relation to Facility C Commitment)
$1,000,000 (save that in the case of a partial assignment, transfer or
novation by a Facility C Lender of its rights and/or obligations under
Facility C to an Affiliate or Related Fund of that Facility C Lender,
such assignment, transfer or novation shall be in a minimum amount (in
relation to Facility C Commitment) of $500,000.
(b) After the end of the Syndication Period, the prior consent of UPC
Distribution is required for any such assignment, transfer or novation
(unless to an Affiliate or to a Lender), provided that:
(i) UPC Distribution's consent must not be unreasonably withheld or
delayed;
(ii) the consent of UPC Distribution to an assignment, transfer or
novation must not be withheld solely because the assignment,
novation or transfer may result in an increase to the Mandatory
Cost;
(iii) the prior consent of UPC Distribution is not required when (A) the
assignment, novation or transfer of a Lender's rights and/or
obligations is to an Affiliate or Related Fund of that Lender or
(B) an Event of Default is outstanding;
(iv) nothing in this Clause 26.2 restricts the ability of any Lender to
enter into any sub-participation or other arrangement with any
third party relating to the Finance
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Documents which does not transfer to that third party any
obligation and/or legal or equitable interest in any of the rights
arising under this Agreement.
(c) A transfer of obligations will be effective only if the obligations are
novated in accordance with Clause 26.3 (Procedure for novations).
(d) On each occasion an Existing Lender assigns, transfers or novates any of
its rights and/or obligations under this Agreement after the end of the
Syndication Period (other than to an Affiliate or Related Fund of that
Existing Lender), the New Lender shall, on the date the assignment,
transfer and/or novation takes effect, pay to the Facility Agent for its
own account a fee of 1,500 (in relation to Facility A, Facility B or
Facility C1) or US$3,500 (in relation to Facility C2); provided that, in
the case of contemporaneous assignments by a Lender under Facility C2 to
more than one fund managed by the same investment adviser (which funds
are not then Lenders hereunder), only a single such US$3,500 fee shall be
payable for all such contemporaneous assignments.
(e) An Existing Lender is not responsible to a New Lender for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document;
or
(iii) the accuracy of any statements (whether written or oral) made in
connection with any Finance Document.
(f) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it
by the Existing Lender in connection with any Finance Document;
and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while
any amount is or may be outstanding under this Agreement or any
Facility A Commitment, Facility B Commitment or Facility C
Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and/or
obligations assigned, transferred or novated under this Clause 26;
or
(ii) support any losses incurred by the New Lender by reason of the
non-performance by any Obligor of its obligations under this
Agreement or otherwise.
(h) Any reference in this Agreement to a Lender includes a New Lender (to the
extent rights have been assigned, transferred or novated to that New
Lender and to the extent that obligations have been assumed by the New
Lender) but excludes a Lender if no amount is or may be owed to or by it
under this Agreement and its Facility A Commitment (if any), Facility B
Commitment (if any), and Facility C Commitment (if any) has been
cancelled or reduced to nil.
<PAGE>
121
(i) If any assignment, transfer or novation taking effect after the end of
the Syndication Period results, or will result by reason of circumstances
existing at the time of the assignment, transfer or novation, in
additional amounts becoming due under Clause 10 (Tax Gross up and
Indemnities) or amounts becoming due under Clause 12 (Increased Costs),
the New Lender shall be entitled to receive such additional amounts only
to the extent that the Existing Lender would have been so entitled had
there been no such assignment, transfer or novation.
(j) Any Facility C Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any
pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release a Lender from
any of its obligations under this Agreement or substitute any such
pledgee or assignee for such Facility C Lender as a party hereto.
26.3 Procedure for novations
(a) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the Facility
Agent a duly completed certificate (a "Novation Certificate"),
substantially in the form of Part I of Schedule 5, with, for the
purposes of primary syndication of the Facilities or to facilitate
novations of Facility C2 Advances (and Facility C2 Commitments, if
applicable), such amendments as the Facility Agent approves to
achieve a substantially similar effect; and
(ii) the Facility Agent executes it (which the Facility Agent shall
promptly do).
(b) Each Finance Party (other than the Existing Lender and the New Lender)
irrevocably authorises the Facility Agent to execute any duly completed
Novation Certificate on its behalf if that Novation Certificate effects a
novation permitted by Clause 26.2.
(c) To the extent that they are expressed to be the subject of the novation
in the Novation Certificate:
(i) the Existing Lender and the other Parties (the "existing Parties")
will be released from their obligations to each other (the
"discharged obligations");
(ii) the New Lender and the existing Parties will assume obligations
towards each other which differ from the discharged obligations
only insofar as they are owed to or assumed by the New Lender
instead of the Existing Lender;
(iii) the rights of the Existing Lender against the existing Parties and
vice versa (the "discharged rights") will be cancelled;
(iv) the New Lender and the existing Parties will acquire rights
against each other which differ from the discharged rights only
insofar as they are exercisable by or against the New Lender
instead of the Existing Lender; and
(v) the New Lender shall become, by the execution by the Facility
Agent of such Novation Certificate, bound by the terms of the
Security Deed as if it were an original party thereto as a Senior
Beneficiary and shall acquire the same rights and assume the same
obligations towards the other parties to the Security Deed as
would have been
<PAGE>
122
acquired and assumed had the New Lender been an original party to
the Security Deed as a Senior Beneficiary,
all on the date of execution of the Novation Certificate by the Facility
Agent or, if later, the date specified in the Novation Certificate.
(d) If the effective date of a novation is after the date a Request is
received by the Facility Agent but before the date the requested Advance
is disbursed to the relevant Borrower, the Existing Lender shall be
obliged to participate in that Advance in respect of its discharged
obligations notwithstanding that novation, and the New Lender shall
reimburse the Existing Lender for its participation in that Advance and
all interest and fees thereon up to the date of reimbursement (in each
case to the extent attributable to the discharged obligations) within
three Business Days of the Utilisation Date of that Advance.
26.4 Additional Guarantors
(a) (i) Subject to paragraph (b) below, a Subsidiary of UPC Distribution
may become an Additional Guarantor by delivering to the Facility
Agent a Guarantor Accession Agreement, duly executed by that
company.
(ii) A person which becomes the immediate Holding Company of UPC
Distribution shall, prior to or contemporaneously with becoming
such Holding Company, become an Additional Guarantor by delivering
to the Facility Agent a Guarantor Accession Agreement, duly
executed by that company.
(iii) Upon execution and delivery of a Guarantor Accession Agreement and
delivery of the documents specified in paragraph (iv) below, the
relevant Subsidiary or person referred to in paragraph (i) or (ii)
above will become an Additional Guarantor.
(iv) UPC Distribution shall procure that, at the same time as a
Guarantor Accession Agreement is delivered to the Facility Agent,
there is also delivered to the Facility Agent all those documents
listed in Part II of Schedule 2, in each case in form and
substance satisfactory to the Facility Agent (acting reasonably).
(v) The Guarantor Accession Agreement referred to in (i) above may,
with the prior written approval of the Facility Agent, include a
limitation of the obligations or liabilities of the relevant
Additional Guarantor under Clause 14 where such limitation is
required by any applicable law.
(b) UPC Distribution shall procure that the value of the aggregate EBITDA,
total assets and total revenues of:
(i) the Original Guarantors (other than UPC Holding and UPC Holding
II) and their respective Subsidiaries as of the Signing Date (as
calculated by reference to the relevant financial statements most
recently provided under Clause 16.2(a) or (b) (Financial
Information)); and
(ii) the Additional Guarantors (other than any UPC Distribution Holdco)
and their respective Subsidiaries as of the date they become
Additional Guarantors (as calculated by reference to the financial
statements referred to in paragraph 11 of Part II of Schedule 2
(Conditions Precedent Documents) provided under Clause
26.4(a)(iii) in respect of each Additional Guarantor),
<PAGE>
123
is equal to or greater than 90 per cent. of the Borrower Group's
consolidated EBITDA, total assets and total revenue (as calculated by
reference to the relevant financial statements most recently provided
under Clause 16.2(a) or (b) (Financial information)), if necessary by
procuring that additional Subsidiaries of UPC Distribution become
Additional Guarantors.
(c) UPC Distribution represents and warrants to the Finance Parties that it
is in compliance with paragraph (b) above as of the Signing Date (all
relevant calculations being made by reference to the Original Borrower
Group Financial Statements).
(d) After the Signing Date, UPC Distribution shall be in compliance with its
obligations under paragraph (b) above if it procures that any of its
Subsidiaries which are required to become Additional Guarantors do so
within 60 days after the delivery to the Facility Agent of any financial
statements delivered under Clause 16.2(a) or (b) (Financial information)
which demonstrate that additional Subsidiaries of UPC Distribution are
required to be become Additional Guarantors under paragraph (b).
(e) The execution of a Guarantor Accession Agreement constitutes confirmation
by the relevant Additional Guarantor that the relevant representations
and warranties set out in Clause 15 (Representations and warranties) to
be made by it on the date of the Guarantor Accession Agreement are
correct, as if made with reference to the facts and circumstances then
existing.
26.5 Reference Banks
(a) If a Reference Bank ceases to be a Lender, the Facility Agent shall
(after consulting with UPC Distribution) appoint another Lender which is
not a Reference Bank to replace that Reference Bank.
(b) After the end of the Syndication Period, UPC Distribution and the
Facility Agent may agree to add one or more additional Reference Bank(s)
from among the Lenders.
26.6 Register
The Facility Agent shall maintain at its address referred to in Clause
32.2(b) a copy of each Novation Certificate delivered to and accepted by
it and a register of the names and addresses all the Parties including,
in the case of Lenders, their Commitments under each Facility, the
principal amount of the Advances owing under each Facility to each Lender
from time to time and the details of their Facility Office notified to
the Facility Agent from time to time, and shall supply any other Party
(at that Party's expense) with a copy of the register on request. The
entries in such register shall be conclusive and binding for all
purposes, absent manifest error, and the Obligors, the Facility Agent and
the Lenders shall treat each person whose name is recorded in the
register as a Lender hereunder for all purposes of this Agreement.
27. DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender 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, this
Agreement or any Obligor; or
<PAGE>
124
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Borrower Group and the Finance
Documents as that Lender shall consider appropriate (acting reasonably)
if, in relation to paragraphs (a) and (b) above, the person to whom the
information is to be given has entered into a Confidentiality
Undertaking.
28. SET-OFF
28.1 Contractual set-off
A Finance Party may set off any matured obligation owed by an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
28.2 Set-off not mandatory
No Finance Party shall be obliged to exercise any right given to it by
Clause 28.1 (Contractual set-off).
28.3 Notice of set-off
Any Finance Party exercising its rights under Clause 28.1 (Contractual
set-off) shall notify the relevant Obligor promptly after set-off is
applied.
29. PRO RATA SHARING
29.1 Redistribution
If any amount owing by an Obligor under any Finance Document to a Finance
Party (the "recovering Finance Party") is discharged by payment, set-off
or any other manner other than through the Facility Agent in accordance
with Clause 9 (Payments) (a "recovery"), then:
(a) the recovering Finance Party shall, within three Business Days,
notify details of the recovery to the Facility Agent;
(b) the Facility Agent shall determine whether the recovery is in excess
of the amount which the recovering Finance Party would have received
had the recovery been received by the Facility Agent and distributed
in accordance with Clause 9 (Payments);
(c) subject to Clause 29.3 (Exceptions), the recovering Finance Party
shall, within three Business Days of demand by the Facility Agent,
pay to the Facility Agent an amount (the "redistribution") equal to
the excess;
(d) the Facility Agent shall treat the redistribution as if it were a
payment by the Obligor concerned under Clause 9 (Payments) and shall
pay the redistribution to the Finance Parties (other than the
recovering Finance Party) in accordance with Clause 9.7 (Partial
payments); and
<PAGE>
125
(e) after payment of the full redistribution, the recovering Finance
Party will be subrogated to the portion of the claims paid under
paragraph (d) above, and that Obligor will owe the recovering Finance
Party a debt which is equal to the redistribution, immediately
payable and of the type originally discharged.
29.2 Reversal of redistribution
If under Clause 29.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(b) the recovering Finance Party has paid a redistribution in relation to
that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Facility Agent, reimburse the
recovering Finance Party all or the appropriate portion of the
redistribution paid to that Finance Party. Thereupon the subrogation in
Clause 29.1(e) (redistribution) will operate in reverse to the extent of
the reimbursement.
Each Finance Party agrees with the Facility Agent that it will comply
with any notice given to it by the Facility Agent under this Clause 29.2.
29.3 Exceptions
(a) A recovering Finance Party need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against the
Obligor concerned in the amount of the redistribution pursuant to Clause
29.1(e) (Redistribution).
(b) A recovering Finance Party is not obliged to share with any other Finance
Party any amount which the recovering Finance Party has received or
recovered as a result of taking legal proceedings, if the other Finance
Party had an opportunity to participate in those legal proceedings but
did not do so and did not take separate legal proceedings.
30. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of any
other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other provision of the Finance Documents.
31. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
<PAGE>
126
32. NOTICES
32.1 Giving of notices
All notices or other communications under or in connection with this
Agreement shall be given in writing and, unless stated, may be made by
letter, telex or facsimile or (to the extent that (i) the relevant Party
has specified such an address pursuant to Clause 32.2 (Addresses for
notices) and (ii) such notice or communication is not required to be
signed by an Authorised Signatory, other officer or board of the relevant
entity and the form of such notice or communication does not provide for
signature by an Authorised Signatory, other officer or board of the
relevant entity) by e-mail. Any such notice will be deemed to be given as
follows:
(a) if by letter, when delivered personally or on actual receipt; and
(b) if by facsimile or e-mail, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
32.2 Addresses for notices
(a) The address and facsimile number and (if so specified) e-mail address of
each Party (other than the Facility Agent and the Borrowers) for all
notices under or in connection with this Agreement are:
(i) that notified by that Party for this purpose to the Facility Agent
on or before it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Facility
Agent by not less than five Business Days' notice.
(b) The address, facsimile numbers and e-mail address of the Facility Agent
and the Security Agent are:
TD Bank Europe Limited
Triton Court
14/18 Finsbury Square
London EC2A 1DB
Contact: Manager - Credit Administration
Facsimile: 020 7638 2551
E-mail: [email protected] and [email protected]
------------------ ------------------
Toronto Dominion (Texas), Inc.,
909 Fannin Street, Suite 1700
Houston, Texas 77010
<PAGE>
127
Attention: Jano Mott
Vice President
Facsimile: 001 713 951 9921
Email: [email protected]
or such other as the Facility Agent may notify to the other Parties by
not less than five Business Days' notice.
(c) The address, facsimile numbers and e-mail address of each Borrower are:
UPC Distribution Holding B.V.
Beech Avenue 100
1119 PW Schiphol Rijk
Postbus 74763
1070 BT Amsterdam
Contact: Joe Katz
Facsimile: +31 207789 861; and
E-mail: [email protected]
UPC Financing Partnership
c/o UPC Distribution
Contact: Joe Katz
Facsimile: +31 207789 861,
E-mail: [email protected]
or such other as the relevant Borrower may notify to the other Parties by
not less than five Business Days' notice.
(d) The Facility Agent shall, promptly upon request from any Party, give to
that Party the address, facsimile number or e-mail address (if
applicable) of any other Party applicable at the time for the purposes of
this Clause 32.
33. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall
be in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English and the Facility Agent so requests, accompanied by
a certified English translation and, in this case, the English
translation shall prevail unless the document is a statutory or
other official document.
<PAGE>
128
34. JURISDICTION
34.1 Submission
For the benefit of each Finance Party, each Obligor agrees that the courts
of England have jurisdiction to settle any disputes in connection with any
Finance Document (other than any Security Document expressed to be governed
by laws other than the laws of England) and accordingly submits to the
jurisdiction of the English courts.
34.2 Service of process
Without prejudice to any other mode of service, each Obligor which is not
incorporated in England and Wales:
(a) irrevocably appoints HRO Registers Ltd., Heathcoat House, 20 Saville
Row, London as its agent for service of process relating to any
proceedings before the English courts in connection with any Finance
Document;
(b) agrees to maintain an agent for service of process in England until
all Facility A Commitments, Facility B Commitments and Facility C
Commitments have terminated and the Advances and all other amounts
payable under the Finance Documents have been finally, irrevocably and
indefeasibly repaid in full;
(c) agrees that failure by a process agent to notify the Obligor of the
process will not invalidate the proceedings concerned;
(d) consents to the service of process relating to any such proceedings by
prepaid posting of a copy of the process to its address for the time
being applying under Clause 32.2 (Addresses for notices); and
(e) agrees that if the appointment of any person mentioned in paragraph
(a) above ceases to be effective, the relevant Obligor shall
immediately appoint a further person in England to accept service of
process on its behalf in England and, failing such appointment within
15 days, the Facility Agent is entitled and authorised to appoint a
process agent for the Obligor by notice to the Obligor.
34.3 Forum convenience and enforcement abroad
Each Obligor:
(a) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a Finance
Document; and
(b) agrees that a judgment or order of an English court in connection with
a Finance Document is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction.
34.4 Non-exclusivity
Nothing in this Clause 34 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
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129
(b) concurrently in more than one jurisdiction.
35. WAIVER OR IMMUNITY
Each Obligor irrevocably and unconditionally:
(a) agrees that if a Finance Party brings proceedings against it or its
assets in relation to a Finance Document, no immunity from those
proceedings (including, without limitation, suit, attachment prior to
judgment, other attachment, the obtaining of judgment, execution or
other enforcement) will be claimed by or on behalf of itself or with
respect to its assets;
(b) waives any such right of immunity which it or its assets now has or
may subsequently acquire; and
(c) consents generally in respect of any such proceedings to the giving of
any relief or the issue of any process in connection with those
proceedings, including, without limitation, the making, enforcement or
execution against any assets whatsoever (irrespective of its use or
intended use) of any order or judgment which may be made or given in
those proceedings.
36. GOVERNING LAW
This Agreement is governed by and construed in accordance with English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
<PAGE>
130
SCHEDULE 1
PART I
ORIGINAL GUARANTORS
Name Address
UPC Financing Partnership 4643 South Ulster Street
Suite 1300
Denver, Co 80237
United States
UPC Distribution Holding B.V. Beech Avenue 100
1119 PW Schiphol Rijk
Postbus 74763
1070 BT Amsterdam
The Netherlands
UPC Holding II B.V. Beech Avenue 100
1119 PW Schiphol Rijk
Postbus 74763
1070 BT Amsterdam
The Netherlands
UPC Holding B.V. Beech Avenue 100
1119 PW Schiphol Rijk
Postbus 74763
1070 BT Amsterdam
The Netherlands
UPC France Holding B.V Beech Avenue 100
1119 PW Schiphol Rijk
Postbus 74763
1070 BT Amsterdam
The Netherlands
UPC Scandinavia Holding B.V. Beech Avenue 100
1119 PW Schiphol Rijk
Postbus 74763
1070 BT Amsterdam
The Netherlands
<PAGE>
131
PART II
ORIGINAL LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
Facility A Facility B Facility C1 Facility C2
Lender Commitments Commitments Commitments Commitments
(Euro) (Euro) (Euro) (US$)
<S> <C> <C> <C> <C>
The Chase 102,857,145 377,142,855
Manhattan Bank
The Toronto- 102,857,145 377,142,855
Dominion Bank
Toronto Dominion 295,400,000
(Texas), Inc.,
ABN AMRO Bank 37,500,000 137,500,000
N.V.
BNP Paribas, 37,500,000 137,500,000
Belgian Branch
CIBC World 37,500,000 137,500,000
Markets plc
Credit Lyonnais 37,500,000 137,500,000
S.A.
Fortis Bank 37,500,000 137,500,000
(Nederland) N.V.
N.B. International 37,500,000 137,500,000
Finance B.V.
The Royal Bank 37,500,000 137,500,000
of Scotland plc
Abbey National 7,500,000 27,500,000 5,000,000
Treasury Services
plc
Lehman 5,000,000
Commercial Paper
Inc
</TABLE>
<PAGE>
132
<TABLE>
<CAPTION>
Facility A Facility B Facility C1 Facility C2
Lender Commitments Commitments Commitments Commitments
(Euro) (Euro) (Euro) (US$)
<S> <C> <C> <C> <C>
Banca 21,428,571 78,571,429
Commerciale
Italiana S.p.A.
Bear Stearns 21,428,571 78,571,429
Corporate
Lending Inc.
Citibank, N.A. 21,428,571 78,571,429
Credit Suisse 10,714,286 39,285,714 50,000,000
First Boston
Daimler Chrysler 6,428,571 23,571,429 10,000,000
Capital Services
(Debis)
DLJ Capital 21,428,571 78,571,429
Funding, Inc.
Dresdner Bank 17,142,857 62,857,143
AG, London
Branch
Goldman Sachs 21,428,571 78,571,429
Credit Partners,
L.P.
Goldman Sachs 8,000,000
Credit Partners,
L.P.
The Govenor and 17,142,857 62,857,143
Company of the
Bank of Scotland
Harbourmaster 15,000,000
Loan Corporation
B.V.
</TABLE>
<PAGE>
133
<TABLE>
<CAPTION>
Facility A Facility B Facility C1 Facility C2
Lender Commitments Commitments Commitments Commitments
(Euro) (Euro) (Euro) (US$)
<S> <C> <C> <C> <C>
IBM Nederland 3,214,286 11,785,714
Financieringen
B.V.
ING Bank N.V. 21,428,571 78,571,429
Eurocredit CDO I, 15,000,000
B.V. and
Eurocredit CDO II,
B.V.
KBC Bank NV 5,357,143 19,642,857
Merrill Lynch 21,428,571 78,571,429
Capital
Corporation
Debt Strategies 820,000
Fund III, Inc.
Debt Strategies 4,200,000
Fund II, Inc.
Debt Strategies 1,800,000
Fund, Inc.
Senior High 3,180,000
Income
Portfolio, Inc.
Morgan Stanley 21,428,571 78,571,429
Senior Funding,
Inc.
Oppenheimer 4,100,000
Senior Floating
Rate Fund
Scotiabank Europe 21,428,571 78,571,429
plc
Van Kampen Prime 15,000,000
Rate Income Trust
</TABLE>
<PAGE>
134
<TABLE>
<CAPTION>
Facility A Facility B Facility C1 Facility C2
Lender Commitments Commitments Commitments Commitments
(Euro) (Euro) (Euro) (US$)
<S> <C> <C> <C> <C>
Van Kampen Senior 10,000,000
Income Trust
UBS AG, London 21,428,571 78,571,429
Branch
----------------- ------------------- ---------------- --------------
Total (Euro)750,000,000 (Euro)2,750,000,000 (Euro)95,000,000 US$347,500,000
</TABLE>
<PAGE>
135
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST ADVANCE
1. Constitutional Documents
A copy of the memorandum and articles of association and certificate of
incorporation of each Obligor (other than the US Borrower) and the
partnership agreement in relation to the US Borrower.
2. Authorisations
(a) A copy of an extract of a resolution of the board of directors (or
equivalent) of each Obligor:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party (including, in the case of
each Guarantor, the giving of the guarantee under Clause 14) and
resolving that it execute and, where applicable, deliver the Finance
Documents;
(ii) authorising a specified person or persons to execute and, where
applicable, deliver the Finance Documents to which it is a party on
its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including Requests) to be
signed and/or despatched by it under or in connection with the
Finance Documents to which it is a party;
(b) a specimen of the signature of each person authorised by the resolutions
referred to in paragraph (a) above;
(c) certificate of an authorised signatory of each of UPC Distribution and the
US Borrower respectively certifying that each copy of the documents
specified in Part I of this Schedule 2 and supplied by UPC Distribution or
the US Borrower (as the case may be) is a true copy and in full force and
effect as at a date no earlier than the Signing Date; and
(d) Evidence that all of the requirements of Section 25 of the Netherlands
Works Council Act (Wet op de Ondernemingsraden) in connection with the
transactions contemplated by the Finance Documents have been complied with.
3. Legal opinions
(a) Legal opinions of:
(i) Allen & Overy, London, Amsterdam and New York, legal advisers to the
Lead Arrangers;
(ii) Loeff Claeys Verbeke, Brussels, legal advisers to the Lead
Arrangers;
(iii) Vinge KB, Stockholm, legal advisers to the Lead Arrangers;
<PAGE>
136
(iv) Wiersholm, Mellbye & Bech, Oslo, legal advisers to the Lead Arrangers.
(b) Legal opinion of Holme Roberts & Owen LLP, legal advisers to the Borrowers,
addressed to the Finance Parties and confirming that the Facility will not
cause any default under the existing high yield indentures of UPC or UGC.
4. Existing Financial Indebtedness
Evidence that:
(a) all availability under the facility agreements or other documentation
relating to any Financial Indebtedness ("Relevant Financial
Indebtedness") described in Schedule 9 (Relevant Financial
Indebtedness) has irrevocably been cancelled in full or will be
irrevocably cancelled in full as at the first Utilisation Date;
(b) all indebtedness under such facility agreements or other documentation
relating to any Relevant Financial Indebtedness has been repaid in
full or will be repaid in full upon the making of the first Advance;
(c) all letters of credit and guarantees and similar instruments issued
under such facility agreements or other documentation relating to any
Relevant Financial Indebtedness have been cancelled and that no cash
collateral is held by the relevant issuing banks in respect of those
instruments (or that the foregoing will be achieved upon the making of
the first Advance); and
(d) all Security Interests described in Schedule 8 (Relevant Security
Interests) have been released (or will be released upon the making of
the first Advance) and that all parties with an interest in such
Security Interests have consented to such release.
5. Capital and corporate structure
(a) A certificate from a director of UPC Distribution addressed to the Finance
Parties confirming that as at the first Utilisation Date (following the
first Utilisation hereunder) there will be no Subordinated Shareholder
Loans outstanding from the Borrower Group to any Subordinated Creditors
other than Subordinated Shareholder Loans owing by UPC Distribution to UPC
Holdco in a principal amount of not less than 1,400,000,000.
(b) Evidence as to the capital and corporate structure of the Borrower Group as
at the first Utilisation Date, such structure being consistent with the
description set out in Part II of Schedule 10 (Borrower Group Structures).
6. Finance Documents
(a) The Security Documents listed in Schedule 7 (Security Documents) duly
executed by all parties thereto.
(b) The Security Deed duly executed by all parties thereto.
(c) All relevant notices of security required to be delivered under any
Security Document together with acknowledgements of such notices, in each
case in the form required by the relevant Security Document.
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(d) Delivery to the Security Agent of share certificates and duly completed
blank stock transfer forms (or equivalent) in respect of all shares or
partnership interests (as applicable) subject to the Security Documents
listed in Schedule 7 (Security Documents).
(e) UCC-1 Financing Statements duly executed by each of UPC Holding and UPC
Holding II.
(f) Completion of all other steps specified by the Security Agent as being
necessary to perfect the Security Interests intended to be created by the
Security Documents listed in Schedule 7 (Security Documents).
(g) Syndication Letter duly executed by all parties thereto.
(h) Guarantor Accession Agreements duly executed by each of UPC Nederland N.V.,
Stipdon Investments B.V. and Cable Networks Austria Holding B.V..
7. Financial information
(a) Audited consolidated financial statements for UPC for the financial year
ending 31st December, 1999.
(b) The Original Borrower Group Financial Statements, together with the
financial statements of the Borrower Group for the Accounting Period ended
30th June, 2000.
(c) The Consultant's Report.
(d) A certificate from a director of UPC Distribution confirming that as at the
first Utilisation Date (following the first Utilisation) Borrower Group
Capitalisation will be equal to the figure specified in Clause 17.2(h).
8. Other documents
(a) Copies of the Material Contracts listed in Schedule 11 (Material
Contracts).
(b) A copy of (and of all applications for) any and all approvals, consents,
licences, exemptions and other requirements of governmental and other
authorities required for the entering into or performance of the Finance
Documents to be entered into on or about the Signing Date by each party.
(c) Restricted Person's Framework Agreement and Obligors' Framework Agreement,
in each case duly executed by all parties thereto.
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PART II
TO BE DELIVERED BY AN ADDITIONAL GUARANTOR
1. A Guarantor Accession Agreement, duly executed as a deed (or using any
equivalent necessary formality, in the case of an Additional Guarantor
incorporated outside the United Kingdom) by the Additional Guarantor.
2. In the case of an Additional Guarantor (other than any UPC Distribution
Holdco), a pledge over all the issued shares of the Additional Guarantor
owned by any member of the Borrower Group in substantially the same form as
a share pledge already granted to the Security Agent over shares of another
Obligor incorporated in the same jurisdiction as the Additional Guarantor
or in such other form as the Security Agent may reasonably require,
together with a Security Provider's Deed of Accession executed by such
member of the Borrower Group, such notices and other documents as the
Security Agent may require to perfect such share pledge.
3. Details of:
(a) (in the case of an Additional Guarantor, other than any UPC
Distribution Holdco) all material receivables (aggregating 10,000,000
(or its equivalent in other currencies) or more) which are owed to the
Additional Guarantor by chello broadband N.V. or Priority Telecom
N.V.;
(b) (in the case of, an Additional Guarantor, other than UPC Distribution
Holdco) all intercompany loans owed to the Additional Guarantor by any
member of the Borrower Group, together with an Obligor Pledge of
Shareholder Loans executed by the Additional Guarantor in respect of
such intercompany loans and the other documents referred to in Clause
16.14(a) (Restrictions on Financial Indebtedness); and
(c) where the Additional Guarantor will become a UPC Distribution Holdco
at the same time as, or after, it becomes an Additional Guarantor,
details of all Financial Indebtedness owing to the Additional
Guarantor by any member of the Borrower Group, together with a Pledge
of Subordinated Shareholder Loans executed by the Additional Guarantor
in respect of such Financial Indebtedness and the other documents
referred to in Clause 16.25(a) (Shareholder Loans).
(d) (in the case of an Additional Guarantor, other than any UPC
Distribution Holdco) all Financial Indebtedness owing by the
Additional Guarantor to any Restricted Person, together with a Pledge
of Subordinated Shareholder Loans executed by the relevant Restricted
Person(s) (if any) in respect of such Financial Indebtedness and the
other documents referred to in Clause 16.25(a) (Shareholder Loans).
4. A pledge over such of the receivables referred to in paragraph 3(a) above
(in the case of an Additional Guarantor, other than any UPC Distribution
Holdco) as in the opinion of the Security Agent is necessary to maintain
the coverage of the Security Documents over such receivables owed to the
Borrower Group on a basis consistent with Clause 16.26 (Further Security
over receivables) in substantially the same form as a receivables pledge
already granted to the Security Agent (i) by a member of the Borrower Group
incorporated in the same jurisdiction as the Additional Guarantor or (ii)
in respect of receivables located in the same jurisdiction as the relevant
receivables or (iii) in such other form as the Security Agent
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may reasonably request, together with all such notices and other documents
as the Security Agent may require to perfect the receivables pledge.
5. A copy of the memorandum and articles of association and certificate of
incorporation (or other equivalent constitutional documents) of the
Additional Guarantor (and any Subsidiary of the Additional Guarantor (a
"Relevant Subsidiary"), the issued shares of which are to be subject to a
share pledge referred to in paragraph 6 below).
6. (a) Where the Additional Guarantor will become a UPC Distribution Holdco
at the same time as, or after, it becomes an Additional Guarantor, a
pledge over all the issued shares of UPC Distribution substantially in
the same form as a share pledge already granted to the Security Agent
over shares of UPC Distribution or in such other form as the Security
Agent may reasonable require, together with such notices and other
documents as the Security Agent may require to perfect such share
pledge.
(b) In the case of an Additional Guarantor (other than New UPC
Distribution Holdco), Stipdon Investments B.V., Cable Networks Austria
Holding B.V. or UPC Nederland N.V., a pledge over all the issued
shares of any Subsidiary (a "Relevant Subsidiary") of the Additional
Guarantor (other than shares not owned by the Additional Guarantor or
any Subsidiary of the Additional Guarantor) if in the opinion of the
Security Agent such pledge is necessary to maintain the coverage of
the Security Documents over shares in Obligors (other than UPC Holding
and any other UPC Distribution Holdco) or other key members of the
Borrower Group (being holding companies in respect of one or more
members of the Borrower Group which carry on business in a particular
jurisdiction). Such share pledge shall be in substantially the same
form as a Share Pledge already granted to the Security Agent over
shares in a person incorporated in the same jurisdiction as the
Relevant Subsidiary or in such other form as the Security Agent may
reasonably require, together with such notices and other documents as
the Security Agent may require to perfect such pledge.
7. A copy of a resolution of the board of directors of the Additional
Guarantor:
(a) approving the terms of, and the transactions contemplated by, the
Guarantor Accession Agreement (and any relevant Security Document
referred to in paragraphs 2, 3, 4 or 6 above (each an "Additional
Security Document") resolving that it execute the Guarantor Accession
Agreement (and each Additional Security Document);
(b) authorising a specified person or persons to execute the Guarantor
Accession Agreement and each Additional Security Document; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents to be signed and/or despatched by it
under or in connection with the Finance Documents.
8. A copy of any other authorisation or other document, opinion or assurance
which the Facility Agent reasonably considers to be necessary in connection
with the entry into and performance of, and the transactions contemplated
by, the Guarantor Accession Agreement or any Additional Security Document.
9. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 7 above.
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10. A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy of the documents specified in Part II of this
Schedule 2 and provided by it is a true copy and in full force and effect
as at a date no earlier than the date of the Guarantor Accession Agreement
(and, in the case of an Additional Guarantor other than any UPC
Distribution Holdco, if required by the Facility Agent, a certificate of
each Relevant Subsidiary in respect of each copy of the documents provided
by it in accordance with the provisions of Part II of Schedule 2).
11. A copy of the latest financial statements (audited, if available) of the
Additional Guarantor.
12. A legal opinion of legal advisers to the Facility Agent, and, if
applicable, other lawyers approved by the Facility Agent in the place of
incorporation of the Additional Guarantor (and/or each Relevant Subsidiary)
addressed to the Finance Parties.
13. All other notices, documents and other steps required to perfect the
security constituted by each Additional Security Document (including,
without limitation, accession to, or entry into (as the case may be), by:
(a) the relevant Additional Guarantor (and any member of the Borrower
Group which is an intercompany debtor in respect of the Additional
Guarantor) of an Obligors' Framework Agreement; or
(b) as the case may be, the relevant Restricted Person referred to
paragraph 3(d) above (and the Additional Guarantor) of a Restricted
Person's Framework Agreement.
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SCHEDULE 3
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders 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 Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, the
arithmetic mean (rounded up, if necessary, to four decimal places) of the
respective rates notified by each Reference Bank to the Facility Agent at
its request as the rate resulting from the application of the formulae set
out in paragraphs 3 and 4 below (the "Additional Cost Rate").
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be calculated in accordance with paragraph
2 above by reference to the percentage rate notified by each Reference Bank
to the Facility Agent as the cost of complying with the minimum reserve
requirements of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated in accordance with paragraph 2 above
as follows:
(a) in relation to a Sterling Advance:
AB+C(B-D)+Ex0.01
----------------per cent. per annum
100-(A+C)
(b) in relation to an Advance in any currency other than sterling:
EX0.01
------per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Reference 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 Margin and the
Mandatory Cost) payable for the relevant Interest Period on the
Advance;
C is the percentage (if any) of Eligible Liabilities which that
Reference 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
Facility Agent on interest-bearing Special Deposits;
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E is the rate of charge payable by that Reference Bank to the
Financial Services Authority pursuant to the Fees Regulations (but,
for this purpose, ignoring any minimum fee required pursuant to the
Fees Regulations) and expressed in pounds per (Pounds)1,000,000 of
the Fee Base of that Reference Bank.
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 Regulations" means the Banking Supervision (Fees) Regulations
1999 or such other law or regulation as may be in force from time
to time in respect of the payment of fees for banking supervision;
and
(c) "Fee Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in the
formulae 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. Each Reference Bank shall use reasonable endeavours to supply to the
Facility Agent on request the percentage rate per annum so calculated by it
on any date. If any Reference Bank does not do so on request of the
Facility Agent, the Facility Agent shall determine the relevant Mandatory
Costs on the basis of the quotation supplied by the remaining Reference
Banks. If no, or only one, Reference Bank supplies a quotation on request
of the Facility Agent, then the Mandatory Costs will be the percentage rate
per annum stated by the Facility Agent to be the Additional Cost Rate
applicable to it.
8. The Facility Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the information
provided by any Reference Bank pursuant to paragraph 3 above is true and
correct in all respects.
9. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
10. The Facility Agent may from time to time, after consultation with UPC
Distribution and the Lenders, determine and notify to all Parties any
amendments 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 any 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 Parties.
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SCHEDULE 4
FORM OF REQUEST AND CANCELLATION NOTICE
PART I
FORM OF REQUEST
To: [ ]
Attention: [ ]
From: [Borrower] Date: [ ]
REQUEST (ADVANCE)
UPC Distribution Holding B.V. - (Euro)3,500,000,000 and US$347,500,000 and
95,000,000 Term and Revolving Credit Agreement dated [ ], 2000
Dear Sirs,
We hereby give you notice pursuant to Clause 5.1 (Delivery of Request) of the
above Credit Agreement that we require an Advance to be made to that Borrower
under the Credit Agreement, as follows:
(a) Facility: [A, B, C1 or C2]
(b) Utilisation Date: [ ]
(c) Requested Amount: [ ]
(d) Currency: [ ]
(e) Interest Period: [ ]
Payment instructions with respect to the proceeds of the Advance to be made in
relation to this Request are as follows: [ ].
We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
Terms used in this Request and defined in the Credit Agreement have the same
meaning in this Request as in the Credit Agreement.
Yours faithfully
[Authorised Signatory]
[Borrower]
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PART II
FORM OF CANCELLATION AND/OR PREPAYMENT NOTICE
To: [ ] as Facility Agent
From: [BORROWER]
Date: [ ]
UPC Distribution Holding B.V. - (Euro)3,500,000,000 and US$347,500,000 and
95,000,000 Term and Revolving Credit Agreement dated [ ], 2000
1. [We wish to cancel a portion of Total Facility A Commitments*
and/or* Total Facility B Commitments* and/or* Total Facility C
Commitments* in the following amounts:
Cancellation:
Total Facility A Commitments: [ ]*
Total Facility B Commitments: [ ]*
Total Facility C1 Commitments: [ ]*
Total Facility C2 Commitments: [ ]*
OR
[We wish to prepay the whole or part of the following Advances which are
to be applied against the Facilities in the following order:
(a) Facilities:
Facility A Advance: [ ]*
Facility B Advance: [ ]*
Facility C1 Advance: [ ]*
Facility C2 Advance: [ ]*
(b) Application of Advance[s]:
Facility A: [ ]*
______________________
* Delete as appropriate.
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Facility B: [ ]*
Facility C1: [ ]*
Facility C2: [ ]*
2. Terms defined in the above Credit Agreement have the same meaning in this
notice.
[By:
[BORROWER]
Authorised Signatory
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SCHEDULE 5
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: [ ] as Facility Agent
From: [THE EXISTING LENDER] and [THE NEW LENDER] Date: [ ]
UPC Distribution Holding B.V. - (Euro)3,500,000,000 and US$347,500,000 and
95,000,000 Term and Revolving Credit Agreement dated [ ], 2000
We refer to Clause 26.3 (Procedure for novations) of the Credit Agreement and
Clause 9.3 (Transfers by the Lenders) of the Security Deed]. Terms defined in
the Credit Agreement have the same meaning in this Novation Certificate.
1. We [ ] (the "Existing Lender") and [ ] (the "New Lender") agree
to the Existing Lender and the New Lender novating all the Existing
Lender's rights and obligations referred to in the Schedule in accordance
with Clause 26.3 (Procedure for novations) of the Credit Agreement and
Clause 9.3 (Transfers by the Lenders) of the Security Deed].
2. The specified date for the purposes of Clause 26.3(c) (Procedure for
novations) is [date of novation].
3. The Facility Office and address for notices of the New Lender for the
purposes of Clause 32.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
Rights and obligations to be novated
[Details of the rights and obligations of the Existing Lender to be novated.]
[New Lender]
[Facility Office Address for notices]
[Existing Lender] [New Lender] [ ]
By: By: By:
Date: Date: Date:
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147
PART II
GUARANTOR ACCESSION AGREEMENT
To: [ ] as Facility Agent and [ ] as Security Agent
From: [PROPOSED GUARANTOR]
Date: [ ]
UPC Distribution Holding B.V. -(Euro) 3,500,000,000 and US$347,500,000 and
95,000,000 Term and Revolving Credit Agreement dated [ ], 2000
We refer to Clause 26.4 (Additional Guarantors). Terms defined in the Credit
Agreement have the same meaning in this Deed.
We, [name of company] of [Registered Office] (Registered no. [ ]) agree:
(a) to become an Additional Guarantor and to be bound by the terms of the
Credit Agreement as an Additional Guarantor in accordance with Clause
26.4 (Additional Guarantors); and
(b) to become a party to the Security Deed as a Charging Entity and to
observe, perform and be bound by the terms and provisions of the Security
Deed in the capacity of a Charging Entity in accordance with Clause 9.6
(Charging Entities) of the Security Deed.
Our address for notices for the purposes of Clause 32.2 (Addresses for notices)
is:
[
]
This Deed is governed by English law.
Executed as a deed by ) Director
[PROPOSED GUARANTOR] )
acting by ) Director/Secretary
and )
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SCHEDULE 6
FORM OF LMA CONFIDENTIALITY UNDERTAKING
LMA CONFIDENTIALITY LETTER (PURCHASER)
[Letterhead of Existing Lender]
To:
====================================================
[insert name of New Lender]
====================================================
Re: The Facility
====================================================
Borrowers:
Amount:
Agent:
====================================================
Dear Sirs
We understand that you are considering participating in the Facility. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake:
(a) to keep the Confidential Information confidential and not to disclose it
to anyone except as provided for by paragraph 2 below and to ensure that
the Confidential Information is protected with security measures and a
degree of care that would apply to your own confidential information;
(b) to keep confidential and not disclose to anyone the fact that the
Confidential Information has been made available or that discussions or
negotiations are taking place or have taken place between us in
connection with the Facility;
(c) to use the Confidential Information only for the Permitted Purpose;
(d) to use all reasonable endeavours to ensure that any person to whom we
pass any Confidential Information (unless disclosed under paragraph 2(b)
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it; and
(e) not to make enquiries of any member of the Borrower Group or any of their
officers, directors, employees or professional advisers relating directly
or indirectly to the Facility.
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149
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
(a) to members of the Participant Group and their officers, directors,
employees and professional advisers to the extent necessary for the
Permitted Purpose and to any auditors of members of the Participant
Group;
(b) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental, supervisory or
regulatory body, (ii) where required by the rules of any stock
exchange on which the shares or other securities of any member of
the Participant Group are listed or (iii) where required by the laws
or regulations of any country with jurisdiction over the affairs of
any member of the Participant Group.
(c) with the prior written consent of us and the Borrower.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2(b) or upon becoming aware that Confidential
Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or permanently
erase all copies of Confidential Information made by you and use all
reasonable endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent
that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance
with internal policy, or where the Confidential Information has been
disclosed under paragraph 2 (b) above.
5. Continuing Obligations The obligations in this letter are continuing and,
in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence,
the obligations in this letter shall cease (a) if you become a party to
or otherwise acquire (by assignment or sub-participation) an interest,
direct or indirect, in the Facility or (b) twelve months after we have
returned all Confidential Information supplied to you by us and destroyed
or permanently erased all copies of Confidential Information made by you
(other than any such Confidential Information or copies which have been
disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned or
destroyed).
6. No Representation; Consequences of Breach, etc You acknowledge and agree
that:
(a) neither we nor any of our officers, employees or advisers (each a
"Relevant Person") (i) make any representation or warranty, express
or implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information
or any other information supplied by us or any member of the
Borrower Group or the assumptions on which it is based or (ii) shall
be under any obligation to update or correct any inaccuracy in the
Confidential Information or any other information supplied by us or
any member of the Borrower Group or be otherwise liable to you or
any other person in respect to the Confidential Information or any
such information; and
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150
(b) we or members of the Borrower Group may be irreparably harmed by the
breach of the terms of this letter and damages may not be an
adequate remedy; each Relevant Person or member of the Borrower
Group may be granted an injunction or specific performance for any
threatened or actual breach of the provisions of this letter by you.
7. No Waiver; Amendments, etc. This letter sets out the full extent of our
obligations of confidentiality owed to us in relation to the information
the subject of this letter. No failure or delay in exercising any right,
power or privilege under this letter will operate as a waiver thereof nor
will any single or partial exercise of any right, power or privilege
preclude any further exercise thereof or the exercise of any other right,
power or privileges under this letter. The terms of this letter and your
obligations under this letter may only be amended or modified by written
agreement between us.
8. Inside Information We acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter
are given to us and (without implying any fiduciary obligations on our
part) are also given for the benefit of the Borrower and each other
member of the Borrower Group.
11. Third party rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this letter may
be enforced and relied upon only by you and us and the operation of
the Contracts (Rights of Third Parties) Act 1999 is excluded.
(b) Notwithstanding any provisions of this letter, the parties to this
letter do not require the consent of any Relevant Person or any
member of the Borrower Group to rescind or vary this letter at any
time.
1. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by
and construed in accordance with the laws of England and the parties
submit to the non-exclusive jurisdiction of the English courts.
2. Definitions In this letter (including the acknowledgement set out below):
"Borrower Group" means UPC Distribution and each of its holding companies
and subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"Confidential Information" means any information relating to a Borrower,
the Borrower Group, the Facility including, without limitation, the
information memorandum provided to you by us or any of our affiliates or
advisers, in whatever form, and includes information given orally and any
document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information
but excludes information that (a) is or becomes public knowledge other
than as a direct or indirect result of any breach of this letter or (b)
is known by you before the date the information is disclosed to you by us
or any of our affiliates or advisers or is lawfully obtained by you
thereafter, other than from a source which is connected with the Borrower
Group and which, in either case, as
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151
far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;
"Participant Group" means us, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985).
"Permitted Purpose" means considering and evaluating whether to enter
into the Facility; and
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours faithfully
.....................
For and on behalf of
[Arranger]
To: [Existing Lender]
The Borrower and each other member of the Borrower Group
We acknowledge and agree to the above:
.....................
For and on behalf of
[New Lender]
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SCHEDULE 7
SECURITY DOCUMENTS
1. Each share pledge given in favour of the Security Agent in the agreed
form by:
(a) UPC Distribution Holdco in respect of its interest in the share
capital of UPC Distribution;
(b) UPC Distribution Holdco in respect of its interest in the share
capital of UPC Holding II;
(c) UPC Distribution in respect of its interest in the share capital of
each Guarantor which is a Subsidiary of UPC Distribution;
(d) UPC Scandinavia Holding B.V. in respect of its interest in the share
capital of UPC Norge AS;
(e) UPC Scandinavia Holding B.V. and Cable Networks Austria Holding B.V.
in respect of their respective interests in the share capital of UPC
Belgium SA;
(f) UPC Scandinavia Holding B.V. in respect of its interest in the share
capital of NBS Nordic Broadband Services AB;
(g) Stipdon Investments B.V. in respect of its interest in the share
capital of UPC Czech Holding B.V.;
(h) Stipdon Investments B.V. in respect of its interest in the share
capital of UPC Slovakia Holding B.V.;
(i) Stipdon Investments B.V. in respect of its interest in the share
capital of UPC Romania Holding B.V.; and
(j) Stipdon Investments B.V. in respect of its interests in the share
capital of Telekabel Hungary N.V.
2. Pledge by each of UPC Distribution Holdco and UPC Holding II of its
partnership interest in the US Borrower.
3. (i) Obligor Pledge of Shareholder Loans between UPC Distribution Holding
B.V., UPC Scandinavia Holding B.V., UPC France Holding B.V. Stipdon
Investments B.V., UPC Nederland N.V., Cable Network Austria Holding B.V.
and UPC Financing Partnership and the Security Agent;
(ii) Pledge of Subordinated Shareholder Loans between UPC Holding and the
Security Agent/1/.
<PAGE>
153
SCHEDULE 8
RELEVANT SECURITY INTERESTS
(A) Security granted in connection with the loan agreement between N.V.
Telekabel as Borrower, Bank of America International Limited, Citibank,
N.A., Deutsche Bank AG London, Meespierson N.V. and Paribas as Arrangers
and others, dated 10th March, 1999 (the "N.V. Telekabel Facility").
(B) Security granted in connection with credit facility agreement between
Cable Network Brabant Holding B.V. as Borrower and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A. as Agent and Initial Lender, dated 20th
February, 1998, as amended.
(C) Security granted in connection with bridge facility agreement between
A2000 Holding N.V., Kabeltelevisie Amsterdam B.V. and A2000 Hilversum
B.V. as Borrowers and Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A. as Arranger and Agent, dated 15th December, 1999 (the "A2000
Facility").
(D) Security granted in connection with revolving loan facility agreement for
NLG90,000,000 between GelreVision Holding B.V. as Borrower, MeesPierson
N.V. as Arranger, Facility Agent and Security Agent and others, dated
17th November, 1999;
(E) Security granted in connection with facility agreement for
(Euro)250,000,000 between UPC France S.A. and Mediareseaux S.A. as
Borrowers, Paribas, Credit Lyonnais S.A and ING Barings as Joint
Arrangers, Videopole S.A., Citereseau S.A. and InterComm France Holding
S.A. as Original Guarantors and Paribas as Facility Agent and Security
Agent, dated 7th April, 2000 (the "Mediareseaux Facility");
(F) Security granted in connection with revolving credit facility agreement
for (Euro)500,000,000 between UPC Nederland N.V. as Borrower, Chase
Manhattan plc and Toronto Dominion Bank Europe Limited as Arrangers, The
Chase Manhattan Bank and The Toronto-Dominion Bank as Original Lenders
and Toronto Dominion Bank Europe Limited as Agent, dated 9th June, 2000.
(G) Security granted in connection with loan and note issuance agreement for
up to (Euro)1,000,000,000 between UPC Facility BV, TeleKabel Wien GmbH
and Janco Multicom A/S as Borrowers, the banks, guarantors and arrangers
named therein and The Toronto-Dominion Bank as Agent and Security Agent,
dated 27th July, 1999 (the "UPCF Facility").
(H) Security granted in connection with the Loan agreement and working
capital facility for up to KC 510,000,000 between, among others,
Dottelkabel A.S. as Borrower, De Nationale Investerings - bank N.V. as
Facility Agent and Lenders and Creditanstalt A.S. as Working Capital Bank
and Lender, dated 16th June, 1998 and June 1998 respectively.
<PAGE>
154
SCHEDULE 9
RELEVANT FINANCIAL INDEBTEDNESS
1. Loan agreement for up to NLG340,000,000 between N.V. Telekabel as
Borrower, Bank of America International Limited, Citibank, N.A., Deutsche
Bank AG London, MeesPierson N.V. and Paribas, as Arrangers and others,
dated 10th March, 1999;
2. Credit facility agreement between Cable Network Brabant Holding B.V. as
Borrower and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. as
Agent and Initial Lender, dated 20th February, 1998, as amended;
3. Bridge facility agreement between A2000 Holding N.V., Kabeltelevisie
Amsterdam B.V. and A2000 Hilversum B.V. as Borrowers and Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A. as Arranger and Agent, dated 15th
December, 1999;
4. Revolving loan facility agreement for NLG90,000,000 between Gelrevision
Holding B.V. as Borrower, MeesPierson N.V. as Arranger, Facility Agent
and Security Agent and others, dated 17th November, 1999;
5. Facility agreement for (Euro)250,000,000 between UPC France S.A. and
Mediareseaux S.A. as Borrowers, Paribas, Credit Lyonnais S.A. and ING
Barings as Joint Arrangers, Videopole S.A., Citereseau S.A. and InterComm
France Holding S.A. as Original Guarantors and Paribas as Facility Agent
and Security Agent, dated 7th April, 2000;
6. Revolving credit facility agreement for (Euro)500,000,000 between UPC
Nederland N.V. as Borrower, Chase Manhattan plc and Toronto Dominion Bank
Europe Limited as Arrangers, The Chase Manhattan Bank and The Toronto-
Dominion Bank as Original Lenders and Toronto Dominion Bank Europe
Limited as Agent, dated 9th June, 2000;
7. Loan and note issuance agreement for up to (Euro)1,000,000,000 between
UPC Facility B.V., TeleKabel Wien GmbH and Janco Multicom A/S as
Borrowers, the banks, guarantors and arrangers named therein and The
Toronto-Dominion Bank as Agent and Security Agent, dated 27th July, 1999;
and
8. Loan Agreement and working capital facility for up to KC510,000,000
between, among others Dattelkabel A.S. as Borrower, De Nationale
Investeringsbank N.V. as Facility Agent and Lender and Creditanstalt A.S.
as Working Capital Bank and Lender, dated 16th June, 1998 and June 1998
respectively.
<PAGE>
155
SCHEDULE 10
BORROWER GROUP STRUCTURE
PART I
Borrower Group** as at the Signing Date
[ORGANISATIONAL CHART APPEARS HERE]
_____________________
* All the asterisked entities are not part of the Borrower Group at the
Signing Date. These entities figure on the chart for the sake of clarification.
** Although not specifically listed, the Borrower Group at the signing date
includes Subsidiaries of all Borrower Group entities shown above.
<PAGE>
156
PART II
Borrower Group** following Completion of the Restructuring
[ORGANISATIONAL CHART APPEARS HERE]
* All the asterisked entities are not part of the Borrower Group at the
Signing Date. These entities figure on the chart for the sake of clarification.
** Although not specifically listed, this chart includes Subsidiaries of the
listed entities which will be members of the Borrower Group following the
Restructuring.
1. One share in UPC Belgium S.A. will be held by Cable Network Austria
Holding B.V. following the Restructuring.
<PAGE>
157
SCHEDULE 11
MATERIAL CONTRACTS
PART I
INTERCONNECT AGREEMENTS
Note: The documents relating to Romanian entities on this list represent the
----
best efforts to provide a complete list but are unlikely to include every
document that conforms to the required description.
1. Austria
(a) chello Franchise Agreement dated 30 June 1999 between chello
Broadband N.V. and Telekabel Wien. (In English and in German).
(b) Zusatzvereinbarung (additional agreement) dated 29 June 1999 among
chello Broadband N.V., Telekabel Wien and KTV-Wien. (In English and
German).
(c) Interconnection Agreement, dated 15 December 1998, between Telekabel
Wien and Citykom Austria Telekommunikation GmbH.
(d) Interconnection Agreement, dated 26 February 1999, between Connect
Austria Gesellschaft fur Telekommunikation GmbH and Telekabel Wien.
(e) Interconnection Agreement, dated 3 February 2000, between CyberTron
Telekom AG and Telekabel Wien.
(f) Reciprocal Telecommunications Services Agreement, dated 30 September
1999, between FaciliCom International GmbH and Telekabel Wien.
(g) Interconnection Agreement, dated 28 October 1998, between max.mobil.
Telekommunikation Service GmbH and Telekabel Wien.
(h) International Service Agreement, dated 30 May 2000, between MCI
WorldCom Telecommunication Services Austria GmbH and Telekabel Wien
GmbH Priority Telecom.
<PAGE>
158
(i) Interconnection Agreement, dated 23 October 1998, between Mobilkom
Austria AG and Telekabel Wien.
(j) Interconnection Agreement, dated 8 May 2000, between Telekabel Wien
and Netway AG.
(k) Interconnection Agreement, dated 14 April 2000, between Priority
Telecom and Raiffeisen Datennetz Ges.m.b.H.
(l) Interconnection Agreement, dated 18 May 2000, between RSL COM Austria
AG and Telekabel Wien.
(m) Interconnection Agreement, dated 25 April 2000, between tele.ring
Telekom Service GmbH and Telekabel Wien.
(n) Interconnection Agreement, dated 27 November 1998, between Telekabel
Wien and tele.ring Telekom Service GmbH & Co KG.
(o) Interconnection Agreement, dated 2 December 1999, between Telekom
Austria Aktiengesellschaft and Telekabel Wien.
2. Belgium
(a) Summarized Term Sheet for the Franchise Agreement between chello
broadband N.V. ("chello") and UPC Belgium S.A., dated 18 May 2000.
3. Czech Republic
-----------
(a) Interconnection Agreement, dated 12 December 1995, between Kabel Plus
a.s. and SPT Telecom a.s. as amended in 1996, 1997, 1998, 1999 and
2000 concerning the interconnection of telecommunication equipment and
networks in Liberec.
(b) Interconnection Agreement, dated 9 May 2000, between KabelPlus a.s.
and GTS Czech Net s.r.o concerning the interconnection of
telecommunication networks to provide voice services through Internet
in Liberec.
(c) Summarized Term Sheet for the Franchise Agreement between chello and
Kabel Plus A.S., dated 18 May 2000.
<PAGE>
159
4. France
(a) Interconnection Agreement dated 23 November 1998 between RSL COM
France SA and Mediareseaux Marne SA;
(b) Interconnection Agreement dated 5 January 1999 between Telecom
Development and Mediareseaux Marne SA;
(c) Interconnection Agreement dated 16 May 2000 between Telecom
Developpement SA and Mediareseaux Marne SA;
(d) Interconnection Agreement dated 2 June 2000 between France Telecom SA
and UPC France;
(e) Memorandum of Understanding dated 18 February 1998 between chello and
Mediareseaux Marne.
5. Hungary
(a) Summarized Term Sheet for the Franchise Agreement between chello and
Monor Telefon Tarsasag RT, dated 18 May 2000.
(b) Summarized Term Sheet for the Franchise Agreement between chello and
UPC Magyarorszag Kft, dated 18 May 2000.
(c) Network Contract between MATAV Rt. and Monor Telefon Tarsasag Rt.
dated 28 September 1994.
6. The Netherlands
---------------
(a) Interconnection Agreement, dated 27 January 1997, between PTT Telecom
B.V. (now known as KPN Telecom B.V.) and A2000 Holding N.V. concerning
mutual interconnection of their telecommunication infrastructures and
the telecommunication services provided by way of those
telecommunication infrastructures (in English).
(b) Interconnection Agreement, dated 29 January 1999, between KPN Telecom
B.V. and United Telekabel Holding N.V. (now known as UPC Nederland
N.V.) concerning mutual interconnection of their telecommunication
infrastructures and special network access (in Dutch).
<PAGE>
160
(c) Interconnection Agreement, dated 1 July 1997, between PTT Telecom B.V.
(now known as KPN Telecom B.V.), N.V. Eneco and K&T Netwerkdiensten
concerning mutual interconnection of their telecommunications
infrastructure (in Dutch).
(d) Wholesale Master Services Agreement, dated February 1999, between
A2000/Kabeltelevisie Amsterdam B.V. and WorldCom Communications B.V.
concerning the interconnection of the WorldCom voice switch in
Amsterdam with the A2000/KTA voice switch in Amsterdam (in English).
(e) Bilateral Carrier Services Agreement, dated 23 September 1999, between
Kabeltelevisie Amsterdam B.V. and Global Telesystems (UK) Ltd.
concerning connection of their respective networks in order to permit
the conveyance of telecommunications traffic from their respective
networks to destinations as specified in the agreement (in English).
(f) Agreement, dated June 1999, between Eneco K&T B.V. and bART Internet
Services concerning Internet services to cable subscribers (in Dutch).
(g) Co-operation Agreement, dated July 1998, between Eneco KabelTV &
Telecom B.V. and Sonera Ltd. concerning fast Internet services to
cable subscribers (in English).
(h) Distribution Agreement, dated 9 July 1999, between Kabel Haarlem B.V.
and MultiWeb B.V. concerning fast Internet services to cable
subscribers (in English).
(i) Summarized Term Sheet for the Franchise Agreement between chello and
A2000 Hilversom B.V., dated 18 May 2000.
(j) Summarized Term Sheet for the Franchise Agreement between chello and
Kabetelevisie Amsterdam B.V., dated 18 May 2000.
(k) Summarized Term Sheet for the Franchise Agreement between chello and
K&T Netwerkdiensten B.V., dated 18 May 2000.
(l) Summarized Term Sheet for the Franchise Agreement between chello and
Kabel TV & Telecom B.V., dated 18 May 2000.
(m) Summarized Term Sheet for the Franchise Agreement between chello and
UPC Haarlem B.V., dated 18 May 2000.
(n) Summarized Term Sheet for the Franchise Agreement between chello and
Gelrevision Holding B.V., dated 18 May 2000.
(o) Summarized Term Sheet for the Franchise Agreement between chello and
Cable Network Brabant Holding B.V., dated 18 May 2000.
(p) Summarized Term Sheet for the Franchise Agreement between chello and
N.V. TeleKabel, dated 18 May 2000.
<PAGE>
161
(q) Summarized Term Sheet for the Franchise Agreement between chello and
UPC Oost Gelderland N.V., dated 18 May 2000.
7. Norway
-----------
(a) Summarized Term Sheet for the Franchise Agreement between chello and
United Pan-Europe Communications Norge AS, dated 18 May 2000.
(b) Interconnection Agreement between UPC Norge AS and Telenor Nett for
1999.
(c) Interconnection Agreement between UPC Norge AS and Telenor Nett for
the year 2000.
8. Slovak_Republic
(a) Summarized Term Sheet for the Franchise Agreement between chello and
Trnavatel spol. s.r.o., dated 18 May 2000.
(b) Summarized Term Sheet for the Franchise Agreement between chello and
KabelTel s.r.o., dated 18 May 2000.
(c) Summarized Term Sheet for the Franchise Agreement between chello and
UPC Slovensko s.r.o., dated 18 May 2000.
(d) Summarized Term Sheet for the Franchise Agreement between chello and
Kabel Plus Bratislava a.s., dated 18 May 2000.
(e) Summarized Term Sheet for the Franchise Agreement between chello and
Kabel Plus a.s. (Banska Bystrica), dated 18 May 2000.
<PAGE>
<PAGE>
162
9. Sweden
------
(a) Summarized Term Sheet for the Franchise Agreement between chello and
UPC Sverige AB, dated 18 May 2000.
<PAGE>
163
PART II
SHAREHOLDERS' AGREEMENTS
1. Austria
-------
(a) Syndikatsvereinbarung (shareholders agreement) dated 28 June 1995
among Osterreichische Philips Industrie GmbH, Cable Networks Austria
Holding B.V. and Kabel-TV-Wien GmbH. (In English and German).
2. France
------
(a) Stockholders Agreement dated 29 February 2000 between Belmarken
Holding B.V., InterComm France CVOHA, InterComm France II CVOHA and
Reflex Participants.
3. The Netherlands
(a) Shareholders' Agreement, dated 6 July 1995, among The Municipality of
Amsterdam, A2000 Holding N.V. and Kabeltelevisie Amsterdam B.V. (in
English).
4. Romania
-------
(a) Partnership Agreement between Comtec 2000, Multicanal Holdings S.R.L.
and Control SA.
<PAGE>
164
SCHEDULE 12
LICENCES
Note: The documents relating to Romanian entities on this list represent the
-----
best efforts to provide a complete list but are unlikely to include
every document that conforms to the required description.
I. Austrian Licences
-----------------
(a) Telekabel Wien GmbH
-------------------
(i) Gewerbeschein dated 5 November 1981
(ii) Gewerbeschein dated 30 October 1979
(iii) Konzessionsdekret dated 8 October 1981
(iv) Fernmeldebewillingung dated 13 September 1993
(v) Wegerechtsbescheid dated 1 March 1978
(vi) Gewerbeschein dated 7 May 1999
(vii) Bescheid of the Telekom-Control-Kommission dated 9 March
1998
(viii) Zusammenschaltungsbescheid (reference Z 3/98) dated 5
October 1998
(ix) Zusammenschaltungsbescheid (reference Z33/99-87) dated 17
April 2000
(x) Mietleitungskonzession dated 9 March 1998
(xi) Internetdiensteaufnahmeanzeige dated 10 March 1998
(b) Telekabel Graz GmbH
-------------------
(i) Gewerbeschein dated 22 April 1980
(ii) Gewerbeschein dated 7 May 1984
(iii) Fernmeldebewillingung dated 24 October 1995
(iv) Elecktrotechnikergewerbebewillingung dated 30 December
1998
(c) Telekabel Klagenfurt GmbH
-------------------------
(i) Gewerbeschein dated 10 November 1980
(ii) Gewerbeschein dated 16 December 1982
(iii) Fernmeldebewillingung dated 17 January 1995
(iv) Electrotechnikergewerbebewillingung dated 9 December 1998
<PAGE>
165
(d) Telekabel - Fernsehnetz Baden Betriebsgesellschaft mbH
-------------------------------------------------------
(i) Gewerbeschein dated 4 December 1981
(ii) Fernmeldebewillingung dated 26 July 1990
(e) Telekabel - Fernsehnetz Wiener Newstadt/Neunkirchen
---------------------------------------------------
Betriebsgesellschaft mbH
------------------------
(i) Gewerbeschein dated 26 June 1984
(ii) Fernmeldebewillingung dated 25 July 1990
(f) chello Broadband Gesellschaft mbH
---------------------------------
(i) Gewerbeschein dated 15 November 1999
II. Belgian Licences
----------------
A. Cable Television Services
-------------------------
1. Flanders area:
-------------
(a) Municipality of Leuven
----------------------
Licence for the establishment and exploitation of a cable-television
network dated 31 July 1970
(b) Municipality of Heverlee and Kessel-Lo
--------------------------------------
Licence for the establishment and exploitation of a cable-television
network dated 4 March 1971
(c) Municipality of Herent, Wilsele, Tervuren and Wezembeek-Oppen
-------------------------------------------------------------
Licence for the establishment and exploitation of a cable-television
network dated 13 August 1999
2. Brussels area:
-------------
(a) Municipality of Schaarbeek
--------------------------
Licence for the establishment and exploitation of a cable-television
network dated 21 October 1969
(b) Municipality of Etterbeek
-------------------------
Licence, dated 19 May 1969, for the establishment and exploitation of
a cable-television network, and Franchise Agreement dated 26 May 1997
(c) Municipality of Koekelberg
--------------------------
Licence for the establishment and exploitation of a cable-television
network dated 21
<PAGE>
166
October 1969
(d) Municipalities of Jette and Ganshoren
-------------------------------------
Licence for the establishment and exploitation of a cable-television
network dated 6 February 1970
(e) Municipality of Sint-Agatha-Berchem
-----------------------------------
Licence for the establishment and exploitation of a cable-television
network dated 22 December 1970
(f) Municipality of Vorst
---------------------
Licence for the establishment and exploitation of a cable-television
network dated 21 December 1970
(g) Municipalities of Anderlecht, Oudergem, Brussels, Evere, Elsene, St.-
--------------------------------------------------------------------
Jans-Molenbeek, St.-Gillis, St.-Joost-Ten-Noode, Ukkel, Watermaal-
-----------------------------------------------------------------
Bosvoorde, St.-Lambrechts-Woluwe and St.-Pieters-Woluwe
-------------------------------------------------------
Licence for the establishment and exploitation of a cable-television
network dated 19 April 1999
(h) Municipalities of Schaarbeek and Vorst
--------------------------------------
Authorisation to set up a cable link between Schaarbeek and Vorst
dated 3 January 1978
B. Telecommunication Services
--------------------------
(a) Licence for the establishment and exploitation of a public
telecommunication network dated 22 January 1999, covering all the
Brussels area municipalities and the Flanders area of Beersel,
Drogenbos, Grimbergen, Kraainem, Linkebeek, Machelen, St.-Pieters-
Leeuw, Tervuren, Vilvoorde, Wemmel, Wezembeek-Oppem and Zaventem
(b) Notification of UPC Belgium, dated 28 March 1997, for the provision of
an Internet access service over UPC Belgium's network and a letter of
non-opposition dated 30 May 1997 from the B.I.P.T.
(c) Licence for the establishment and exploitation of a voice telephony
service dated 4 February 2000 covering the whole Belgian territory
III. Czech Licences
--------------
A. Kabel Plus a.s.
---------------
(a) Registration for broadcasting by means of (hard) cable networks,
issued 5 October 1999 (Rg. 97/99)
(b) Registration for broadcasting by means of satellite, valid since 27
August 1996 (Rg. 58/96)
<PAGE>
167
(c) Licence for broadcasting using MMDS, issued 22 June 1999, for the
territorial scope of Kladno (Ru. 176/99)
(d) Licence for broadcasting using MMDS, issued 22 June 1999, for the
territorial scope of eske Bud jovice (Ru. 177/99)
(e) Licence for broadcasting using MMDS, issued 22 June 1999, for the
territorial scope of Olomouc (Ru. 178/99)
(f) Permit of cable/telephony operator issued by The Czech
Telecommunication Office, valid since 23 October 1995, for the
installation and operation of part of JTS (telephone services) in
Liberec (Ref. no. 9083/95-611)
(g) Permit of cable/telephony operator issued by The Czech
Telecommunication Office, valid since 6 May 1996, for the provision of
data telecommunication services (non-public data network - the whole
Czech Republic) (Ref. no. 6574/1996 - 611)
(h) Permit of cable/telephony operator issued by The Czech
Telecommunication Office, valid since 18 March 1998, for the lease of
lines of the whole territory of the Czech Republic (Ref. no. 100
320/1998)
(i) Permit of cable/telephony operator issued by The Czech
Telecommunication Office, valid since 10 April 1998, for the provision
of public data telecommunication services for all the territory of the
Czech Republic (Ref. no. 100 421/98-611)
B. Kabel Net Holding a.s.
----------------------
(a) Registration for broadcasting by means of (hard) cable networks,
issued 4 August 1996 (Rg 68/96)
(b) Registration for broadcasting by means of (hard) cable networks,
issued 4 June 1996 (Rg. 4/96)
(c) Licence for broadcasting using MMDS, issued 6 May 1993, for the
territorial scope of Praha (Ref. 014/93)
(d) Licence for broadcasting using MMDS, issued 31 March 1994, for the
territorial scope of Brno (Ref. 051/93)
C. Kabel Plus TEL, a.s.
--------------------
Permit of cable/telephony operator issued by The Czech Telecommunication
Office, valid since 2 February 1996, for the installation and operation of
part of JTS for VMS Litomice and Lovosice (telephone services) (Ref. no.
15690/95 - 611)
IV. French Licences
---------------
A. Franchise Agreement
-------------------
1. Videopole S.A. and its subsidiaries
-----------------------------------
- Commune d'Albertville, Societe Regionale de Communication;
<PAGE>
168
- Commune d'Amberieu-en-Bugey, Videopole;
- Commune d'Amfreville-la-Mivoie, Citecable Ouest;
- Commune d'Argentan, Videopole;
- Commune d'Andrezieux Boutheon, Videopole;
- Commune d'Avesnes-sur-Helpe, Videopole;
- Commune d'Annonay, Videopole;
- Commune de Barby, Videopole;
- Commune de Behren-les-Forbach, Videopole;
- Commune de Bassens, Videopole;
- Commune de Barbaste, CiteCable Regions;
- Commune de Belley, Videopole;
- Commune de Boulange, Videopole;
- Commune de Bourbon-Lancy, Videopole;
- Commune de Bousbach, Videopole;
- Commune de Bruyeres, EDF Videopole;
- Commune de Breibieres, Videopole;
- Commune de Boe, CiteCable Regions;
- Commune de Blanzat, CiteCable Auvergne;
- Commune de Carling et l'Hopital, SERCL;
- Commune d'Espalion, Videopole;
- Commune de Epinay-sur-Orge, Action Communication Promotions CiteCable;
- Commune d'Evron, CiteCable;
- Commune de Digoin, Videopole;
- Commune de Charleville-Mezieres, Videopole;
- Commune d'Aiguillon, Videopole;
- Commune de Chateau Rouge-Oberdorff, Regicom SA (Transfer from Regicom to
Est, Videopole on 31/10/96);
<PAGE>
169
- Commune de Chateaubriand, Videopole;
- Commune de Cognac, Videopole;
- Commune de Chaumont, Societe Regionale de Communication (Avenant
(absorption SRC par Videopole) on 01/07/94);
- Commune de Chavelot, Videopole;
- Commune de Cancon, CiteCable Regions;
- Commune de Chateau Chinon Ville, CiteCable Regions;
- Commune de Challes-les-Eaux, Challes-les-Eaux Videopole;
- Commune de Cebazat, CiteCable Auvergne;
- Commune de Cluses, Societe Generale de Communication;
- Commune de Bourbonnes-les-Bains, Haute-Marne et Meuse MediaCable;
- Commune de Desvres, Videopole;
- Commune de Darneulles, Videopole;
- District de Grand Rodez, Videopole;
- Commune de Furemeyer, Videopole;
- Commune de Fosses, Videopole;
- Commune de Forbach, Videopole;
- Commune de Firminy, Societe Regionale de Communication;
- Commune de Feurs, Videopole;
- Commune de Fecamp, Videopole;
- Commune de Figeac, Videopole;
- Commune de Girmont, Videopole;
- Commune de Gerzat, CiteCable Auvergne;
- Commune de Goussainville, CiteCable Goussainville;
- Commune de Granges-Narboze, CiteCable Jurassienne;
- Commune de Hagetmau, Videopole;
- Commune de Jassans Riottier, CiteCable Caladois;
<PAGE>
170
- Commune de La Montagne, Videopole;
- Commune de La Ravoire, Videopole;
- Commune de Lagnieu, Videopole;
- Commune de Lavelanet, RDF Videopole;
- Commune de Le Cheylard, Videopole;
- Commune de Le Quesnoy, Videopole;
- Longeville-les-Saint-Avoid, Region Communication Partenariat;
- Commune de Longjumeau, Videopole;
- Commune de Lons-le-Saunier, Videopole;
- Commune de Longuyon, EDF Videopole;
- Commune de Les Forges, Videopole;
- Commune de Marly-la-Ville, Videopole;
- Commune de Marville, Videopole;
- Commune de Massieux, Videopole;
- Commune de Meudon, Videopole;
- District de l'Agglomeration Melunaise, Videopole;
- Commune de Mizerieux, Videopole;
- Commune de Moirans-en-Montagne, Societe Citecable Jurassienne;
- Commune de Montmelian, Videopole;
- Commune de Montmorot, Videopole;
- Commune de Moreuil, Videopole;
- Commune de Morhange, Videopole;
- Commune de Morlaix, Videopole;
- Commune de Morsbach, Region Communication;
- Commune de Mortagne, Videopole;
- Commune de Nemours, Videopole;
- Commune de Oeting, Videopole;
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171
- District Urbain d'Oyonnax, Videopole;
- Commune de Paray-le-Monial, Videopole;
- Commune de Parcieux, Videopole;
- Commune de Pithiviers, Videopole;
- Commune de Pontartier, Videopole;
- Commune de Pont-du-Casse, CiteCable Regions;
- Commune de Pontivy, CiteCable Centre Bretagne;
- Commune de Revin, Videopole;
- Commune de Reyrieux, Videopole;
- Commune de Rosbruck, Region Communications SA (Transfered to Videopole);
- Commune de Sable-sur-Sarthe, Videopole;
- Commune de Saint-Bernard, CiteCable Caladois;
- Commune de Saint-Alban-Leysse, Videopole;
- Commune de Saint-Claude, Videopole;
- Commune de Saint-Didier-sur-Chalaronne, Videopole;
- Commune de Saint-Die-des-Vosges, Videopole;
- Commune de Saintes, CiteCable Saintonge;
- Commune de Saint-Florentin, Videopole;
- Commune de Sainte-Foy-les-Lyon, CiteCable Rhone-Alpes;
- Commune de Saint Germain-au-Mont-d'Or, Videopole;
- Commune de Saint Junien, Videopole;
- Commune de Sarlat-la-Caneda, CiteCable Regions (amended 23/01/95,
transfer to CiteCable Auvergne);
- Commune de Sainte-Menehould, Videopole;
- Commune de Sarralbe, Nord Est Cable;
- Commune de Sarrebourg, Nord-Est Cable;
- District de Sarreguemines, Region Communication for Nord-Est Cable SA;
<PAGE>
172
- Commune de Savigny-sur-Orge, CiteCable Essonne;
- Scionzier, Societe Regionale de Communication;
- Commune de Tarare, EDF Videopole;
- Commune de Terrasson-la-Villedieu, CiteCable Regions;
- Ville de Thionville, Est Videopole;
- Commune de Thaon-les-Vosges, Videopole;
- Commune de Tignes, SA Tele Espace (amended 08/88, name change SA Tele
Espace to Regionale de Communication; extension of term from 15 to 25
years);
- Commune de Thoissey, Videopole;
- Commune de Tonneins, CiteCable Region (amended on 28/02/95, CiteCable
Auvergne replaced CiteCable Regions; 2nd amendment on 02/10/88,
termination of the agreement);
- Commune de Trevoux, Videopole;
- Commune d'Ugine, Videopole;
- Commune d'Uxegney, Videopole;
- Commune de Veynes, Videopole;
- Commune de Vic-en-Bigorre, Videopole;
- Commune de Villefranche-sur-Saone, CiteCable Caladois;
- Commune de Villeneuve-sur-Yonne, EDF Videopole;
- Commune de Villereal, Action Communication Promotion CiteCable;
- Commune de Vittel, CiteCable Est; and
- Commune de Willerwald, Nord-Est Cable.
2. Reseaux Cables de France S.A.
-----------------------------
- Bruay-sur-l'Escaut, Reseaux Cables du Hainaut
- Valenciennes, Reseaux Cables de France;
- La Sentinelle, Reseaux Cables du Hainaut;
- Saint-Saulve, Reseaux Cables du Hainaut;
- Beuvage, Reseaux Cables du Hainaut;
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173
- Petite Foret, Reseaux Cables du Hainaut;
- Chateauroux, Reseaux Cables de l'Indre;
- Saint-Maur, Reseaux Cables de France;
- Le Poinponnat, Reseaux Cables de France;
- Deals, Reseaux Cables de France;
- Cholet, Reseaux Cables de France;
- Lamor-Plage, Reseaux Cables de Bretagne Sud;
- Lorient, Reseaux Cables de France;
- Vallauris, Reseaux Cables de Cote d'Azur;
- ASL des Semboules, Reseaux Cables de Cote d'Azur
- Antibes, Reseaux Cables de France;
- Mandelieu, Reseaux Cables de France;
- Nevers and Coulanges-les-Nevers, Reseaux Cables de France;
- Fourchambault, Reseaux Cables du Nivernais;
- Challuy, Reseaux Cables du Nivernais;
- Syndicat Intercommunal de Developpement Economique du Roannais (District
du Roannais), Reseaux Cables de France;
- Le Coteau, Reseaux Cables de France (Reseau Cable du Roannais);
- La Roche-sur-Yon, Reseaux Cables de France;
- Perigueux, Reseaux Cables de France;
- Agglomeration de Perigueux, Reseaux Cables de France;
- Notre-Dame de Sanilhac, Reseaux Cables de France;
- Charnpavinel, Reseaux Cables de France;
- Trelissac, Reseaux Cables de France;
- Chancelade, Reseaux Cables de France;
- Boulazac, Reseaux Cables de France;
- Coulounieix-Chamiers, Reseaux Cables de France;
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174
- Atur, Reseaux Cables de France; and
- Marsao-sur-l'Isle, Reseaux Cables de France.
3. UPC France S.A.
---------------
- Pontaull-Combault, Roissy-en-Brie, S.A.N. of Marne-la-Vallee-Val
Malburee, UPC France;
- SYMVEP (with reference to a prior agreement dated 29/05/95), UPC France;
- Montfermeil, UPC France;
- Senart, UPC France;
- Goumay-sur-Marne, UPC France;
- Sevran, UPC France;
- Bondy, UPC France;
- Rosny-sous-Bois, UPC France;
- Commune de Viry Chatillon
- Commune de Noisy le Grand
- Commune de Neuilly Plaisance
- Commune de Vaujours
- Commune de Aulnay sous Bois
- Commune de Neuilly sur Marne
- Commune de Villeneuve Saint George
- Commune de Parillous sous Bois
- Commune de Le Raincy
- Commune de Brunoy
- Commune de Quincy Sous S\/nart
- Commune de Montgeron
- Commune de Coubron
4. Citereseau S.A.
---------------
- Montreuil, Citereseau and 3 amendments
<PAGE>
175
- Limoges, Citereseau and 5 amendments
5. Rhone Vision Cable S.A. (R.V.C.)
--------------------------------
- Syndicat pour le reseau cable du Rhone 3 July 1995 (+2 amendments)
6. SudCable Services
-----------------
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Chateaurenard
dated November 24, 1993, Avenant de transfert dated May 31, 1995 and
first amendment dated May 31, 1995.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Beaucaire dated
July 22, 1994 and its amendment dated February 20, 1995.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Graveson dated
July 27, 1994.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Noves dated April
10, 1995 and its amendment dated September 4, 1995.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans le district du Comtat Venaissin
dated May 31, 1995.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Monteux dated
September 27, 1995.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Cavaillon dated
December 15, 1995.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Rognonas dated
October 28, 1996.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Cheval Blanc
dated November 11, 1997.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable sur le territoire syndical du S.A.N.
d'Istres, Fos-sur-Mer at Miramas dated January 21, 1998.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Pernes les
Fontaines dated February 8, 1999.
- Convention relative a la construction et a l'exploitation d'un reseau
distribuant des services par cable dans la commune de Cabannes dated
February 22, 1999.
- Convention relative a l'occupation du domaine de la commune de Grasse
afin de permettre la construction et l'exploitation d'un reseau
multiservice sur son territoire dated March 12, 1999.
<PAGE>
176
7. Cable Services de France
------------------------
- Convention de concession du reseau cable d'Athis-Mons dated December 2,
1996.
- Convention relative a l'occupation du domaine voyer de la commune de
Morsang sur Orge dated April 9, 1998.
- Convention de concession du reseau cable de la ville des Mureaux dated
April 20, 1998.
- Convention relative a l'occupation du domaine voyer de la commune de
Saint-Michel sur Orge dated July 7, 1998.
- Convention de concession dated March 26, 1999 between the city of
Colombes and CSF.
- Convention de concession du reseau cable de la ville de Bezons dated
July 2, 1999.
- Convention d'utilisation d'appuis du reseau de distribution publique de
l'electricite relatif a la Ville des Mureaux dated June 28, 1999.
- Contrat relatif aux prstations de raccordements d'abonnes au reseau
cable signed with Sinergy Sarl and dated August 11, 1999.
8. Cite Interactive
- Convention de concession et d'exploitation d'un reseau distribuant par
cable des services de radiodiffusion sonore et de television dans le
commune de Venissieux dated March 23, 1996; first amendment to the
Franchise Agreement dated March 14, 1997; second amendment to the
Franchise Agreement (unsigned version).
- Contrat d'affermage de la distribution par cable de services de
radiodiffusion sonore et de television dated March 27, 1998 between CI
and the OPAC (Office Public d'Amenagement et de Construction) of Laon.
- Contrat de concession pour l'etablissement et l'exploitation d'un
reseau cable multimedia (services de radiodiffusion sonore et de
television) sur le territoire de la commune d'Epinay-sur-Seine dated
April 2, 1998; first amendment to the Franchise Agreement dated July
12, 1998.
- Contrat de concession pour l'etablissement et l'exploitation d'un
reseau cable et la distribution de services de radiodiffusion sonore et
de television pour la ville d'Annemasse dated July 8, 1998 and
decisions of the city council (conseil municipal) dated July 2, 1998
approving the choice of CI as cable operator and the terms of the
Franchise Agreement; first amendment to the Franchise Agreement dated
July 19, 1999.
- Contrat de concession pour la distribution par cable de services de
radiodiffusion sonore et de television pour la ville de Gauchy
(undated).
9. Premiere Cable Vision
---------------------
- Convention relative a la construction d'un reseau distribuant des
services par cable dans la ville de Bandol dated December 27, 1996.
<PAGE>
177
- Convention relative a la construction d'un reseau distribuant des
services par cable dans la ville de Seillons Source d'Argent dated May
20, 1997.
- Convention relative a l'autorisation pour l'etablissement d'un reseau
distribuant par cable des services de radiodiffusion sonore et de
television dans la ville de Sanary dated December 2, 1997.
- Convention relative a l'autorisation pour l'etablissement d'un reseau
distribuant par cable des services de radiodiffusion sonore et de
television dans la ville de La Crau dated December 15, 1997.
- Convention relative a l'autorisation pour l'etablissement d'un reseau
distribuant par cable des services de radiodiffusion sonore et de
television dans la ville de Six Fours les Plages dated December 29,
1997.
- Convention relative a l'autorisation pour l'etablissement d'un reseau
distribuant par cable des services de radiodiffusion sonore et de
television dans la ville de La Farlede dated February 28, 1998.
- Convention relative a l'autorisation pour l'etablissement d'un reseau
distribuant par cable des services de radiodiffusion sonore et de
television dans la ville du Luc en Provence (undated).
10. TME
---
- Convention de delegation de service public pour l'etablissement et
l'exploitation du reseau cable de teledistribution de la ville du Havre
dated July 7, 1999.
B. Public Domain Occupation Agreements
-----------------------------------
1. Videopole S.A. and its subsidiaries
-----------------------------------
- Ville d'Audun-le-Tiche, Est Videopole;
- Commune de Russange, Est Videopole;
- Ville de Chaville, Nord Videopole;
- Commune de la Rochette, Videopole; District de Melun.
- Le Meu-sur-Seine; District de Melun.
- Commune de Melun, Videopole; District de Melun.
- Commune de Sarrebourg, Nord Est Cable (for the occupation of military
land).
2. SudCable Services
-----------------
- Contrat relatif a l'occupation du domaine de la ville d'Istres dated
June 16, 1998.
<PAGE>
178
3. Cable Services de France
------------------------
- Contrat relatif a l'occupation du domaine voyer de la commune de Paray-
Vieille-Poste dated April 30, 1998
- Contrat relatif a l'occupation du domaine voyer de la commune de Crosne
dated June 28, 1999.
- Contrat relatif a l'occupation du domaine voyer de la commune de
Sannois dated July 7, 1999.
- Contrat relatif a l'occupation du domaine voyer de la commune de
Saint-Gratien dated July 8, 1999.
4. Cite Interactive
- Contrat d'occupation domaniale pour l'etablissement et
l'exploitation d'un reseau distribuant par cable des services de
radiodiffusion sonore et de television.
C. Telecommunications Law Authorisations
- The Telephony Licence.
D. Cable Broadcasting Law Authorisations - Local Authority Approvals - CSA
-----------------------------------------------------------------------
Authorisations
--------------
1. Videopole S.A. and its subsidiaries
-----------------------------------
- CSA decision n degrees90-9 dated 19 January 1990 authorising the
operation of a cable broadcasting network in Cluses;
- CSA decision n degrees 91-702 dated 26 July 1991 authorising the
operation of a cable broadcasting network in the commune of
Albertville;
- CSA decision n degrees 91-933 dated 17 December 1991 authorising the
operation of a cable broadcasting network in the commune of Bruyeres
(Vosges);
- CSA decision n degrees 91-840 dated 29 October 1991 authorising the
operation of a cable broadcasting network in the commune of Revin
(Ardennes);
- CSA decision n degrees 91-841 dated 29 October 1991 authorising the
operation of a cable broadcasting network in the commune of Wantzenau
(Bes-Rhin);
- CSA decision n degrees 91-842 dated 29 October 1991 modifying a
decision relating to the authorisation of the operation of a cable
broadcasting network in the commune of Saintes (Charente-Maritime);
- CSA decision n degrees 92-206 dated 25 February 1992 authorising the
operation of a cable broadcasting network in the commune of Pithiviers
(Loiret);
- CSA decision n degrees 92-207 dated 25 February 1992 modifying a
decision relating to the authorisation of the operation of a cable
broadcasting network in the communes of Cluses and Scionzier (Haute-
Savoie);
<PAGE>
179
- CSA decision n degrees 92-246 dated 24 March 1992 authorising the
operation of a cable broadcasting network in the commune of Aiguillon
(Lot-et-Garonne);
- CSA decision n degrees 92-556 dated 7 April 1992 authorising the
operation of a cable broadcasting network in the commune of Herault;
- CSA decision n degrees 92-557 dated 26 May 1992 authorising the
operation of a cable broadcasting network in the commune of Challes-
les-Eaux (Savoie);
- CSA decision n degrees 92-561 dated 11 June 1992 authorising the
operation of a cable broadcasting network in the commune of Havre
(Seine-Maritime);
- CSA decision n degrees 92-562 dated 11 June 1992 authorising the
operation of a cable broadcasting network in the commune of Lavelanet
(Ariege);
- CSA decision n degrees 92-563 dated 11 June 1992 authorising the
operation of a cable broadcasting network in the commune of
Marckolsheim (Bas-Rhin);
- CSA decision n degrees 92-564 dated 11 June 1992 authorising the
operation of a cable broadcasting network in the commune of
Niederbronn-les-Bains (Bas-Rhin);
- CSA decision n degrees 92-622 dated 30 June 1992 modifying a decision
in favour of Bruyeres Videopole relating to the authorisation of the
operation of a cable broadcasting network in the commune of Bruyeres
(Vosges);
- CSA decision n degrees 92-625 dated 30 June 1992 modifying a decision
in favour of Pithiviers Videopole relating to the authorisation of the
operation of a cable broadcasting network in the communes of Pithiviers
(Loiret);
- CSA decision n degrees 92-627 dated 30 June 1992 authorising the
operation of a cable broadcasting network in the commune of Fumay
(Ardennes);
- CSA decision n degrees 92-976 dated 29 September 1992 authorising the
operation of a cable broadcasting network in the commune of Saint-
Florentin (Yvonne);
- CSA decision n degrees 92-977 dated 29 September 1992 authorising the
operation of a cable broadcasting network in the commune of Soultzmatt
(Haut-Rhin);
- CSA decision n degrees 93-180 dated 16 March 1993 authorising the
operation of a cable broadcasting network in the commune of
Sarreguemines (Moselle);
- CSA decision n degrees 93-644 dated 5 October 1993 authorising the
operation of a cable broadcasting network in the commune of Longeville-
les-Saint-Avold (Moselle);
- CSA decision n degrees 93-815 dated 30 November 1993 authorising the
operation of a cable broadcasting network in the commune of Longuyon
(Meurthe-et-Moselle);
- CSA decision n degrees 93-816 dated 30 November 1993 authorising the
operation of a cable broadcasting network in the commune of Boulange
(Moselle);
- CSA decision n degrees 93-817 dated 30 November 1993 authorising the
operation of a cable broadcasting network in the commune of Malleloy
(Meurthe-et-Moselle);
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180
- CSA decision n degrees 93-866 dated 21 December 1993 authorising the
operation of a cable broadcasting network in the commune of Morhange
(Moselle);
- CSA decision n degrees 93-867 dated 21 December 1993 authorising the
operation of a cable broadcasting network in the commune of Beuvrages
(Nord);
- CSA decision n degrees 93-871 dated 21 December 1993 authorising the
operation of a cable broadcasting network in the commune of Tarare
(Rhone);
- CSA decision n degrees 94-64 dated 25 January 1994 authorising the
operation of a cable broadcasting network in the commune of Desvres
(Pas-de-Calais);
- CSA decision n degrees 94-65 dated 25 January 1994 authorising the
operation of a cable broadcasting network in the communes of Olemps,
Rodez, Druelle, Sainte-Radegonde, Le Monasteere, Sebazac, Luc et Onet-
le-Chateeau in the district of Grand Rodez (Aveyron);
- CSA decision n degrees 94-66 dated 25 January 1994 authorising the
operation of a cable broadcasting network in the commune of Morsbach
(Moselle);
- CSA decision n degrees 94-67 dated 25 January 1994 authorising the
operation of a cable broadcasting network in the commune of Mortagne-
au-Perche (Orne);
- CSA decision n degrees 94-116 dated 1 March 1994 authorising the
operation of a cable broadcasting network in the communes of Carling-
L'Hopital (Moselle);
- CSA decision n degrees 94-148 dated 8 March 1994 authorising the
operation of a cable broadcasting network in the commune of Argentan
(Orne);
- CSA decision n degrees 94-173 dated 15 March 1994 authorising the
operation of a cable broadcasting network in the commune of Sarrebourg
(Moselle);
- CSA decision n degrees 94-211 dated 29 March 1994 authorising the
operation of a cable broadcasting network in the commune of Nemours
(Seine-et-Marne);
- CSA decision n degrees 94-425 dated 19 July 1994 authorising the
operation of a cable broadcasting network in the commune of Sainte-
Menehould (Marne);
- CSA decision n degrees 94-489 dated 6 September 1994 authorising the
operation of a cable broadcasting network in the commune of Ugine
(Savoie);
- CSA decision n degrees 94-490 dated 6 September 1994 authorising the
operation of a cable broadcasting network in the commune of Brebieres
(Pas-de-Calais);
- CSA decision n degrees 94-514 dated 27 September 1994 authorising the
operation of a cable broadcasting network in the commune of Figeac
(Lot);
- CSA decision n degrees 94-601 dated 11 October 1994 authorising the
operation of a cable broadcasting network in the commune of Hagetmau
(Landes);
- CSA decision n degrees 94-614 dated 22 November 1994 authorising the
operation of a cable broadcasting network in the commune of Vio-en-
Bigorre (Hautes Pyrenees);
<PAGE>
181
- CSA decision n degrees 94-615 dated 22 November 1994 authorising the
operation of a cable broadcasting network in the commune of Sarralbe
(Moselle);
- CSA decision n degrees 94-664 dated 13 December authorising the
operation of a cable broadcasting network in the commune of Lutzelhouse
(Bas-Rhin);
- CSA decision n degrees 94-665 dated 13 December authorising the
operation of a cable broadcasting network in the commune of Sable-sur-
Sarthe (Sarthe);
- CSA decision n degrees 94-666 dated 13 December authorising the
operation of a cable broadcasting network in the commune of Donjeux
(Haute-Marne);
- CSA decision n degrees 95-44 dated 7 February 1995 authorising the
operation of a cable broadcasting network in the commune of Espalion
(Aveyron);
- CSA decision n degrees 94-58 dated 14 February 1995 authorising the
operation of a cable broadcasting network in the commune of Marville
(Meuse);
- Letter from CSA referring to a decision dated 14 February 1995 in
respect of the operation of a cable broadcasting network in the commune
of Moriaix;
- CSA decision n degrees 95-59 dated 14 February 1995 authorising the
operation of a cable broadcasting network in the commune of Furmeyer
(Hautes-Alpes);
- CSA decision n degrees 95-60 dated 14 February 1995 authorising the
operation of a cable broadcasting network in the commune of Veynes
(Hautes-Alpes);
- CSA decision n degrees 95-381 dated 5 September 1995 authorising the
operation of a cable broadcasting network in the commune of Forbach
(Moselle);
- CSA decision n degrees 95-383 dated 5 September 1995 authorising the
operation of a cable broadcasting network in the commune of Saint-
Claude (Jura);
- CSA decision n degrees 95-384 dated 5 September 1995 authorising the
operation of a cable broadcasting network in the commune of Champagnole
(Jura);
- CSA decision n degrees 95-504 dated 3 October 1995 authorising the
operation of a cable broadcasting network in the commune of Firminy
(Loire);
- CSA decision n degrees 95-517 dated 10 October 1995 authorising the
operation of a cable broadcasting network in the commune of Saint-
Germain-au-Mont-d'Or (Rhone);
- CSA decision n degrees 95-592 dated 17 October 1995 authorising the
operation of a -cable broadcasting network in the commune of
Villeneuve-sur-Yonne (Yonne);
- CSA decision n degrees 95-736 dated 14 November 1995 authorising the
operation of a cable broadcasting network in the commune of Morisel
(Somme);
- CSA decision n degrees 95-737 dated 14 November 1995 authorising the
operation of a cable broadcasting network in the commune of Moreuil
(Somme);
- CSA decision n degrees 95-738 dated 14 November 1995 authorising the
operation of a cable
<PAGE>
182
broadcasting network in the area of Z.A.C. du Clos Saint-Martin in the
commune of Vaux-le-Peril (Seine-et-Marne);
- CSA decision n degrees 95-739 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Amberieu-
en-Bugey (Ain);
- CSA decision n degrees 95-740 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Massieux
(Ain);
- CSA decision n degrees 95-741 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Reyrieux
(Ain);
- CSA decision n degrees 95-742 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Parcieux
(Ain);
- CSA decision n degrees 95-743 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Mizerieux
(Ain);
- CSA decision n degrees 95-744 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Digoin
(Saone-et-Loire);
- CSA decision n degrees 95-745 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Paray-le-
Monial (Saone-et-Loire);
- CSA decision n degrees 95-746 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of
Chateaubriant (Loire-Atlantique);
- CSA decision n degrees 95-747 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of La Montagne
(Loire-Atlantique);
- CSA decision n degrees 95-748 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Le Quesnoy
(Nord);
- CSA decision n degrees 95-749 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Marly-la-
Ville (Val-d'Oise);
- CSA decision n degrees 95-750 dated 21 November 1995 authorising the
operation of a cable broadcasting network in the commune of Fosses
(Val-d'Oise);
- CSA decision n degrees 95-912 dated 12 December authorising the
operation of a cable broadcasting network in the commune of Longjumeau
(Essonne);
- CSA decision n degrees 95-913 dated 19 December 1995 modifying the
decisi on n degrees 92-1071 of 24 November 1992 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Moyeuvre-Grande (Moselle);
- CSA decision n degrees 96-71 dated 23 January 1996 modifying the
decision n degrees 90-947 of 21 December 1990 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Blanzat (Puy-de-Dome);
- CSA decision n degrees 96-72 dated 23 January 1996 modifying the
decision n degrees 90-946 of 21 December 1990 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Cebazat (Puy-de-Dome);
<PAGE>
183
- CSA decision n degrees 96-73 dated 23 January 1996 modifying the
decision n degrees 91-632 of 28 June 1991 relating to the authorisation
of the operation of a cable broadcasting network in the commune of
Granges-Narboz (Doubs);
- CSA decision n degrees 96-74 dated 23 January 1996 modifying the
decision n degrees 90-948 of 21 December 1990 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Jassans-Riottier (Ain);
- CSA decision n degrees 96-75 dated 23 January 1996 modifying the
decision n degrees 90-944 of 21 December 1990 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Moirans-en-Montagne (Jura);
- CSA decision n degrees 96-76 dated 23 January 1996 modifying the
decision n degrees 90-4 of 12 January 1990 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Pontivy (Morbihan);
- CSA decision n degrees 96-77 dated 23 January 1996 modifying the
decision n degrees 90-880 of 21 December 1990 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Saint-Bernard (Ain);
- CSA decision n degrees 96-78 dated 23 January 1996 modifying the
decision n degrees 90-881 of 21 December 1990 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Saintes (Charente-Maritime);
- CSA decision n degrees 96-79 dated 23 January 1996 modifying the
decision n degrees 90-954 of 21 December 1990 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Savigny-sur-Orge (Essonne);
- CSA decision n degrees 96-80 dated 23 January 1996 modifying the
decision n degrees 89-22 of 11 January 1989 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Villefranche-sur-Saone (Rhone);
- CSA decision n degrees 96-81 dated 23 January 1996 transferring the CSA
decision n degrees 90-952 dated 21 December 1990 in respect of the
operation of a cable broadcasting network in the commune of Sariat-la-
Caneda (Dordogne) to Citecable Auvergne;
- CSA decision n degrees 96-82 dated 23 January 1996 transferring the CSA
decision n degrees 89-20 dated 11 January 1989 in respect of the
operation of a cable broadcasting network in the commune of Tonneins
(Lot-et-Garonne) to Citecable Auvergne;
- CSA decision n degrees 96-169 dated 26 March 1996 authorising the
operation of a cable broadcasting network in the commune of Trevoux
(Ain);
- CSA decision n degrees 96-179 dated 29 February 1996 repealing the
decision n degrees 90-979 dated 21 December 1990 in respect of the
authorisation to the operation of a cable broadcasting network in the
commune of Sainte-Foy-les-Lyon;
- CSA decision n degrees 96-209 dated 16 April 1996 authorising the
operation of a cable broadcasting network in the commune of Chaumont
(Haute-Marne);
- CSA decision n degrees 96-210 dated 16 April 1996 authorising the
operation of a cable broadcasting network in the commune of Aulnoye-
Aymeries (Nord);
<PAGE>
184
- CSA decision n degrees 96-297 dated 7 May 1996 authorising the
operation of a cable broadcasting network in the commune of Saint-
Junien (Haute-Vienne);
- CSA decision n degrees 96-298 dated 7 May 1996 authorising the
operation of a cable broadcasting network in the commune of
Morschwiller-le-Bas (Haut-Rhin);
- CSA decision n degrees 96-558 dated 30 July 1996 authorising the
operation of a cable broadcasting network in the commune of Thoissey
(Ain);
- CSA decision n degrees 96-560 dated 23 July 1996 regarding certain
radio broadcasting on terrestrial frequencies in Alsace;
- CSA decision n degrees 96-580 dated 27 August 1996 transferring the CSA
decision n degrees 95-58 dated 14 February 1995 in respect of the
operation of a cable broadcasting network in the commune of Marville
(Meuse) to Est Videopole;
- CSA decision n degrees 96-581 dated 27 August 1996 modifying the
decision n degrees 89-21 of 11 January 1996 relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Goussainville (Val-d'Oise);
- CSA decision n degrees 96-582 dated 27 August 1996 authorising the
operating of a cable broadcasting network in the commune of Cheylard
(Ardeche);
- CSA decision n degrees 96-633 dated 24 September 1996 authorising the
operation of a cable broadcasting network in the commune of Saint-
Didier-sur-Chalaronne (Ain);
- CSA decision n degrees 96-827 dated 19 November 1996 authorising the
operation of a cable broadcasting network in the commune of Cognac
(Charente);
- CSA decision n degrees 96-828 dated 19 November 1996 transferring the
CSA decision n degrees 94-66 dated 25 January 1994 in respect of the
operation of a cable broadcasting network in the commune of Morsbach to
Est Videopole;
- CSA decision n degrees 96-829 dated 19 November 1996 transferring the
CSA decision n degrees 95-187 dated 16 May 1995 in respect of the
operation of a cable broadcasting network in the commune of Rosbruck to
Est Videopole;
- CSA decision n degrees 96-833 dated 10 December 1996 authorising the
operation of a cable broadcasting network in the commune of Willerwald
(Moselle);
- CSA decision n degrees 97-29 dated 11 February 1997 authorising the
operation of a cable broadcasting network in the commune of Habsheim
(Haut-Rhin);
- CSA decision n degrees 97-30 dated 11 February 1997 transferring the
CSA decision n degrees 90-238 dated 10 July 1990 in respect of the
operation of a cable broadcasting network in the commune of Audun-le-
Tiche (Moselle) to Est Videopole;
- CSA decision n degrees 97-52 dated 11 March 1997 transferring the CSA
decision n degrees 95-188 dated 16 May 1995 in respect of the operation
of a cable broadcasting network in the commune of Chateaurouge to Est
Videopole;
- CSA decision n degrees 97-131 dated 7 May 1997 authorising the
operation of a cable
<PAGE>
185
broadcasting network in the commune of Chavelot (Vosges);
- CSA decision n degrees 97-132 dated 7 May 1997 authorising the
operation of a cable broadcasting network in the commune of Girmont
(Vosges);
- CSA decision n degrees 97-133 dated 7 May 1997 authorising the
operation of a cable broadcasting network in the commune of Thaon-les-
Vosges (Vosges);
- CSA decision n degrees 97-134 dated 7 May 1997 authorising the
operation of a cable broadcasting network in the commune of Damieulles
(Vosges);
- CSA decision n degrees 97-135 dated 7 May 1997 authorising the
operation of a cable broadcasting network in the commune of Forges
(Vosges);
- CSA decision n degrees 97-136 dated 7 May 1997 authorising the
operation of a cable broadcasting network in the commune of Uxegney
(Vosges);
- CSA decision n degrees 97-203 dated 3 June 1997 authorising the
operation of a cable broadcasting network in the commune of Boucheporn
(Moselle);
- CSA decision n degrees 97-204 dated 3 June 1997 authorising the
operation of a cable broadcasting network in the commune of Lons-le-
Saunier (Jura);
- CSA decision n degrees 97-205 dated 3 June 1997 authorising the
operation of a cable broadcasting network in the commune of Montmorot
(Jura);
- CSA decision n degrees 97-206 dated 3 June 1997 authorising the
operation of a cable broadcasting network in the commune of Pontarlier
(Doubs);
- CSA decision n degrees 97-207 dated 3 June 1997 authorising the
operation of a cable broadcasting network in the commune of Montmelian
(Savoie);
- CSA decision n degrees 97-208 dated 3 June 1997 transferring the CSA
decision n degrees 91-933 dated 17 December 1991 in respect of the
operation of a cable broadcasting network in the commune of Bruyeres
(Vosges) to Est Videopole;
- CSA decision n degrees 97-263 dated 17 June 1997 authorising the
operation of a cable broadcasting network in the commune of Fecamp;
- CSA decision n degrees 97-264 dated 17 June 1997 authorising the
operation of a cable broadcasting network in the commune of Meudon;
- CSA decision n degrees 97-383 dated 8 July 1997 transferring the CSA
decision n degrees 90-9 dated 19 January 1990 in respect of the
operation of a cable broadcasting network in the commune of Cluses
(Haute-Savoie) to Savoie Videopole;
- CSA decision n degrees 97-386 dated 16 July 1997 transferring the CSA
decision n degrees 92-556 dated 7 April 1992 in respect of the
operation of a cable broadcasting network in the area of Herault to
Herault Videopole;
- CSA decision n degrees 97-580 dated 8 September 1997 authorising the
operation of a cable broadcasting network in the communes of La
Rochette, Le Mee-sur-Seine, Melun and Vaux-le-Penil (Seine-et-Marne);
<PAGE>
186
- CSA decision n degrees 97-581 dated 8 September 1997 authorising the
operation of a cable broadcasting network in the commune of Pournoy-la-
Grasse (Moselle);
- CSA decision n degrees 98-902 dated 22 December 1998 repealing the CSA
decision n degrees 96-82 dated 23 January 1996 in respect of the
authorisation of the operation of a cable broadcasting network in the
commune of Tonneins (Lot-de-Garonne);
- CSA decision n degrees 98-903 dated 22 December 1998 repealing the CSA
decision n degrees 94-614 dated 22 November 1994 in respect of the
broadcasting network in the commune of Vic-en-Bigorre (Hautes-
Pyrenees);
- CSA decision n degrees 99-223 dated 26 May 1999 authorising the
operation of a cable broadcasting network in the commune of Lagnieu
(Ain);
- CSA decision n degrees 99-225 dated 1 June 1999 authorising the
operation of a cable broadcasting network in the commune of Chaville
(Hauts-de-Seine).
- CSA decision dated 22 November 1994 authorising the operation of a
cable broadcasting network in the commune of Sarrebourg
- CSA decision dated 20 October 1989 authorising the operation of a cable
broadcasting network in the commune of Villereal
- CSA decision dated 30 July 1996 authorising the operation of a cable
broadcasting network in the commune of Thoissey
- CSA decision dated 3 March 1993 authorising the operation of a cable
broadcasting network in the commune of Feurs
- CSA decision dated 9 March 1993 authorising the operation of a cable
broadcasting network in the commune of Andrezieux-Boutheon
- CSA decision dated 5 October 1993 authorising the operation of a cable
broadcasting network in the commune of Longeville-Les-Saint-Avold
- CSA decision dated 8 July 1997 authorising the operation of a cable
broadcasting network in the commune of Cluses
- CSA decision dated 21 December 1990 authorising the operation of a
cable broadcasting network in the commune of Blanzat
- CSA decision dated 27 September 1994 authorising the operation of a
cable broadcasting network in the commune of Figeac
- CSA decision dated 25 April 1991 authorising the operation of a cable
broadcasting network in the commune of Epinay-sur-Orge
- CSA decision dated 8 July 1997 authorising the operation of a cable
broadcasting network in the commune of Scionzier
- CSA decision dated 11 March 1997 authorising the operation of a cable
broadcasting
<PAGE>
187
network in the commune of Oberdorff
- CSA decision dated 3 June 1997 authorising the operation of a cable
broadcasting network in the commune of Morlaix
- CSA decision dated 15 March 1994 authorising the operation of a cable
broadcasting network in the commune of Sarrable
- CSA decision dated 1/st/ November 1993 authorising the operation of a
cable broadcasting network in the commune of Boulange
- CSA decision dated 26 May 1992 authorising the operation of a cable
broadcasting network in the commune of Challes les Eaux
- CSA decision dated 21 December authorising the operation of a cable
broadcasting network in the commune of Cebazat-Gerzat
- CSA decision dated 3 November 1992 authorising the operation of a cable
broadcasting network in the commune of Bourbonne-Les-Bains
- CSA decision dated 1/st/ January 1989 authorising the operation of a
cable broadcasting network in the commune of Tignes
- CSA decision dated 21 December 1990 authorising the operation of a
cable broadcasting network in the commune of Evron
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Chateaubriant
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Chavelot
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Chaville
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Uxegney
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Long-Le-Saunier
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Reyrieux
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Paray-Le-Monial
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Pithiviers
- CSA decision dated 31 August 1999, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Saint-Germain-Au-Mont-D'or
<PAGE>
188
- CSA decision dated 18 April 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Jassans-Riottier
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Girmont
- CSA decision dated 18 April 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Feurs
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Morsbach
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Saintes
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of La Montagne
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Morhange
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Andrezieux-Boutheon
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Lavelanet
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Longeville-Les-Saint-Avold
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Lagnieu
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Revin
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Saint-Florentin
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Forbach
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Le Cheylard
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Furmeyer
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Rosbruck
<PAGE>
189
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Blanzat
- CSA decision dated 18 April 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Saint-Claude
- CSA decision dated 18 April 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Trevoux
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Villeneuve-Sur-Yonne
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Morisel
- CSA decision dated 18 April 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Saint-Bernard
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Fecamps
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Les Forges
- CSA decision dated 18 April 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Meudon
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Saint-Junien
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Amberieu-en-Buget
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Bruyeres
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Cognac
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Espalion
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Firminy
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Longuyon
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Nemours
<PAGE>
190
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Saint-Didire-Sur-Chalaronne
- CSA decision dated 31 August 1999, modifying a decision relating to
the authorisation of the operation of a cable broadcasting network in
the commune of Sarrable
- CSA decision dated 18 April 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Willerwald
2. Reseaux Cables de France
------------------------
- CSA decision n degrees 89-116 dated 27 June 1989 authorising the
operation of a cable broadcasting network in the commune of Coteau;
- CSA decision n degrees 89-241 dated 21 November 1989 authorising the
operation of a cable broadcasting network in Lorient;
- CSA decision n degrees 91-989 dated 10 December 1991 modifying
authorisation in respect of the operation of a cable broadcasting
network in favour of Reseaux Cables de Bretagne-Sud in the commune of
Lorient (Morbihan);
- CSA decision n degrees 92-10 dated 14 January 1992 authorising the
operation of a cable broadcasting network in the commune of Antibes
(Alpes-Maritimes);
- CSA decision n degrees 92-11 dated 14 January 1992 authorising the
operation of a cable broadcasting network in Cholet (Maine-et-Loire);
- CSA decision n degrees 92-12 dated 14 January 1992 authorising the
operation of a cable broadcasting network in Nevers and Coulanges-les-
Nevers (Nievre);
- CSA decision n degrees 92-13 dated 14 January 1992 authorising the
operation of a cable broadcasting network in the commune of La Roche-
sur-Yon (Vendee);
- CSA decision n degrees 92-27 dated 21 January 1992 authorising the
operation of a cable broadcasting network in the commune of
Valenciennes (Nord);
- CSA decision n degrees 92-28 dated 21 January 1992 authorising the
operation of a cable broadcasting network in the commune of Bruay-sur-
Escaut (Nord);
- CSA decision n degrees 92-165 dated 6 January 1992 authorising the
operation of a cable broadcasting network in Perigueux (Dordogne);
- CSA decision n degrees 92-188 dated 18 February 1992 authorising the
operation of a cable broadcasting network in the commune of
Chateauroux (Indre);
- CSA decision n degrees 92-189 dated 18 February 1992 authorising the
operation of a cable broadcasting network in the commune of Deols
(Indre);
- CSA decision n degrees 92-190 dated 18 February 1992 authorising the
operation of a cable broadcasting network in the commune of Poinconnet
(Indre);
<PAGE>
191
- CSA decision n degrees 92-191 dated 18 February 1992 authorising the
operation of a cable broadcasting network in the commune of Saint-Maur
(Indre);
- CSA decision n degrees 92-205 dated 25 February 1992 authorising the
operation of a cable broadcasting network in the commune of Mandelieu-
La-Napoule (Alpes-Maritimes); and
3. UPC France S.A.
---------------
- CSA decision n degrees 97-578 dated 8 September 1997 authorising the
operation of a cable broadcasting network in the commune of Rosny-
sous-Bois (Seine-Saint-Denis);
- CSA decision n degrees 95-909 dated 12 December 1995 (Pontault-
Combault, Roissy-en-Brie, S.A.N. of Marne-la-Vallee-Val Malbuee),
authorising the operation of a cable broadcasting network in Pontault-
Combault, Roissy-en-Brie, S.A.N. of Marne-la-Vallee-Val Malbuee;
- CSA decision n degrees 97-584 dated 16 September 1997 modifying the
decision n degrees 95-909 of 12 December 1995 referred to above
(Pontault-Combault, Roissy-en-Brie, S.A.N. of Marne-la-Vallee-Val
Malbuee); and
- CSA decision n degrees 99-506 dated 7 December 1999 authorising the
operation of a cable broadcasting network in the commune of Senart
(Seine-et-Marne).
- CSA decision dated 31 July 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Cholet
- CSA decision dated 31 July 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Fourchambault
- CSA decision dated 31 July 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Larmor Plage
- CSA decision dated 31 July 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of La Roche sur Yon
- CSA decision dated 31 July 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Nevers
- CSA decision dated 31 July 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Chateauroux
- CSA decision dated 31 July 2000, modifying a decision relating to the
authorisation of the operation of a cable broadcasting network in the
commune of Lorient
4. Citereseau S.A.
--------------
- CSA decision n degrees 95-515 dated 10 October 1995 authorising the
operation of a cable broadcasting network in the commune of Limoges
(Haute-Vienne); and
- CSA decision n degrees 95-914 dated 19 December 1995 authorising the
operation of a cable broadcasting network in the commune of Montreuil
(Seine-Saint-Denis).
<PAGE>
192
5. Rhone Vision Cable S.A.
-----------------------
- CSA decision n degrees 95-447 dated 12 September 1995 authorising the
operation of a cable broadcasting network in the Rhone area;
- CSA decision n degrees 95-513 dated 12 September 1995 completing CSA
decision n degrees 95-447 referred to above; and
- CSA decision n degrees 96-174 dated 2 April 1996 modifying CSA
decision n degrees 95-513 referred to above.
6. SudCable Services
-----------------
- Decision n degrees 95-287 du 25 juillet 1995 autorisant l'exploitation
d'un reseau cable distribuant des services de radiodiffusion sonore et
de television dans le territoire du District du Comtat Venaissin
regroupant les communes de Carpentras, Aubignan, Le Beaucet, Bedoin,
Caromb, Flassan, Lafare, Loriol-du-Comtat, Mazan, Methamis, La Roque-
sur-Pernes, Saint-Didier, Saint-Hippolyte-le-Graveyron, Vacqueyras,
Velleron et Venasque (Vaucluse); approbation de la modification du
plan de services du reseau cable du 28 janvier 1997.
- Decision n degrees 95-288 du 25 juillet 1995 autorisant l'exploitation
d'un reseau cable distribuant des services de radiodiffusion sonore et
de television dans le territoire de la commune de Graveson
(Bouches-du-Rhone).
- Decision n degrees 95-472 du 12 septembre 1995 autorisant
l'exploitation d'un reseau cable distribuant des services de
radiodiffusion sonore et de television dans le territoire de la
commune de Beaucaire (Gard); approbation de la modification du plan de
services du reseau cable du 28 janvier 1997.
- Decision n degrees 95-516 du 10 octobre 1995 autorisant l'exploitation
d'un reseau cable distribuant des services de radiodiffusion sonore et
de television dans le territoire de la commune de Chateaurenard
(Bouches-du-Rhone); approbation de la modification du plan de services
du reseau cable du 28 janvier 1997.
- Decision n degrees 95-590 du 17 octobre 1995 autorisant l'exploitation
d'un reseau cable distribuant des services de radiodiffusion sonore et
de television dans le territoire de la commune de Noves (Bouches-du-
Rhone).
- Decision n degrees 97-7 du 7 janvier 1997 autorisant l'exploitation
d'un reseau cable distribuant des services de radiodiffusion sonore et
de television dans le territoire de la commune de Cavaillon
(Vaucluse).
- Decision n degrees 97-381 du 8 juillet 1997 autorisant l'exploitation
d'un reseau cable distribuant des services de radiodiffusion sonore et
de television dans le territoire de la commune de Monteux (Vaucluse).
- Letter of the CSA dated March 5, 1999 referring to the authorization
granted by the CSA on February 23, 1999 for the operation of the cable
network providing radio and television services over the territory of
the S.A.N. of Istres, Fosd-sur-Mer and Miramas.
7. Cable Services de France
------------------------
<PAGE>
193
- Decision n degrees 97-388 du 25 juillet 1997 autorisant l'exploitation
d'un reseau cable distribuant des services de radiodiffusion sonore et
de television dans le territoire de la commune d'Athis-Mons (Essonne).
- Decision n degrees 98-837 du 17 novembre 1998 autorisant
l'exploitation d'un reseau cable distribuant des services de
radiodiffusion sonore et de television dans le territoire de la
commune des Mureaux (Yvelines).
- Decision n degrees 98-572 du 29 juillet 1998 autorisant l'exploitation
d'un reseau cable distribuant des services de radiodiffusion sonore et
de television dans le territoire de la commune de Paray-Vieille-Poste
(Essonne); approbation de la modification du plan de services du
reseau cable du 25 janvier 1999 .
V. Hungarian Licences
------------------
A. CATV Operation
--------------
1. Budapest Regional Licence
-------------------------
(a) Licence, dated 23 February 2000, issued by the Budapest Communication
Inspectorate to UPC Magyarorszag Kft.
(b) Modification of the above Licence, dated 5 June 2000, by the Budapest
Communication Inspectorate to UPC Magyarorszag Kft.
2. North Hungary Licence
---------------------
(a) Licence dated 26 April 2000, issued by the Communication Inspectorate
of North Hungary to UPC Magyarorszag Kft. for the cities of Aszalo,
Berrettyoujfalu, debrecen, Eger, Felsotarkany, Gyongyos,
Gyongyostarjan, Malyi, Miskolc, Nagykallo, Nyiregyhaza, Onga,
Sajopetri, Salgotarjan, Szikszo-Alsovadasz
3. West Hungary Licences
---------------------
(a) Licence, dated 23 March 2000, issued by the Communication Inspectorate
of West Hungary to UPC Magyarorszag Kft. for the cities of Veszprem
and Varpolata
(b) Licence, dated 24 March 2000, issued by the Communication Inspectorate
of West Hungary to UPC Magyarorszag Kft. for the city of Szombathely
(c) Licence, dated 24 March 2000, issued by the Communication Inspectorate
of West Hungary to UPC Magyarorszag Kft. for the cities of Tatbanya
and Vertesszolos
(d) Licence, dated 24 March 2000, issued by the Communication Inspectorate
of West Hungary to UPC Magyarorszag Kft. for the cities of Sopron and
Kophaza
(e) Licence, dated 24 March 2000, issued by the Communication Inspectorate
of West Hungary to UPC Magyarorszag Kft. for the city of Mor
(f) Licence, dated 27 March 2000, issued by the Communication Inspectorate
of West Hungary to UPC Magyarorszag Kft. for the city of
Szekesfehervar
(g) Modification of the above Licences, dated 25 April 2000, by the
Communication
<PAGE>
194
Inspectorate of West Hungary
4. South Hungary Licences
----------------------
(a) Licence, dated 22 March 2000, issued by the Communication Inspectorate
of South Hungary to UPC Magyarorszag Kft. for the city of Nagykanizsa
(b) Licence, dated 22 March 2000, issued by the Communication Inspectorate
of South Hungary to UPC Magyarorszag Kft. for the city of Dunaujvaros
(c) Licence, dated 22 March 2000, issued by the Communication Inspectorate
of South Hungary to UPC Magyarorszag Kft. for the cities of
Hosszuheteny, Komlo and Pecs
(d) Modification of the above Licences, dated 2 May 2000, by the
Communication Inspectorate of South Hungary
5. East Hungary Licences
---------------------
(a) Licence, dated 4 July 2000, issued by the Communication Inspectorate
of East Hungary to UPC Magyarorszag Kft. for the city of Mezotur
(b) Licence, dated 4 July 2000, issued by the Communication Inspectorate
of East Hungary to UPC Magyarorszag Kft. for the city of Szolnok
(c) Licence, dated 4 July 2000, issued by the Communication Inspectorate
of East Hungary to UPC Magyarorszag Kft. for the city of Szolnok-
Pletykafalu
B. Internet
--------
Nationwide Licence
------------------
(a) Licence, dated 28 February 2000, issued by the Budapest Communication
Inspectorate to UPC Magyarorszag Kft.
VI. Dutch Licences
--------------
1. UPC Nederland N.V. (formerly known as United Telekabel Holding N.V.)
--------------------------------------------------------------------
(a) Registration, dated 2 February 1999, as supplier of a public
telecommunication service (Ref. 900043)
2. A2000 Holding N.V.
------------------
(a) Registration, dated 2 July 1999, as constructor or supplier of a
public telecommunication network (Ref. 900188)
(b) Registration, dated 2 July 1999, as supplier of a public
telecommunication service (Ref. 900365)
(c) Registration, dated 2 July 1999, as constructor or supplier of leased
lines (Ref. 900366)
3. Kabeltelevisie Amsterdam B.V.
-----------------------------
<PAGE>
195
(a) Registration, dated 20 October 1999, as supplier of a public
telecommuication service (Ref 900509)
(b) Registration, dated 20 October 1999, as supplier of a system of
conditional access (Ref. 900510)
(c) Registration, dated 20 October 1999, as constructor or supplier of a
public telecommunication network (Ref. 900512)
(d) Registration, dated 20 October 1999, as constructor or supplier of a
broadcast network (Ref. 900513)
(e) Registration, dated 5 October 1999, as constructor or supplier of
leased lines (Ref. 900511)
4. A2000 Hilversum B.V.
--------------------
(a) Registration, dated 20 October 1999, as supplier of a public
telecommunication service (Ref. 900514)
(b) Registration, dated 20 October 1999, as constructor or supplier of a
public telecommunication network (Ref. 900517)
(c) Registration, dated 20 October 1999, as constructor or supplier of a
broadcast network (Ref. 900518)
(d) Registration, dated 20 October 1999, as constructor or supplier of
leased lines (Ref. 900516)
(e) Registration, dated 20 October 1999, as supplier of a system of
conditional access (Ref. 900515)
5. N.V. Telekabel
--------------
(a) Registration, dated 9 March 1999, as supplier of a public
telecommunication service (Ref. 900119)
(b) Registration, dated 12 February 1999, as constructor or supplier of a
public telecommunication network (Ref. 900059)
(c) Registration, dated 2 February 1999, as constructor or supplier of
leased lines (Ref. 900044)
(d) Registration, dated 24 June 1999, as supplier of a system of
conditional access (Ref. 900316)
(e) Registration, dated 2 February 1999, as constructor or supplier of a
broadcast network (Ref. 900045)
6. Cable Network Brabant Holding B.V.
----------------------------------
(a) Registration, dated 24 June 1999, as supplier of a public
telecommunication service (Ref. 900317)
<PAGE>
196
(b) Registration, dated 2 April 1999, as constructor or supplier of a
public telecommunication network (Ref. 900170)
(c) Registration, dated 25 January 1999, as constructor or supplier of
leased lines (Ref. 900031)
(d) Registration, dated 24 June 1999, as supplier of a system of
conditional access (Ref. 900318)
(e) Registration, dated 25 January 1999, as constructor or supplier of a
broadcast network (Ref. 900032)
7. GelreVision Holding B.V.
------------------------
(a) Registration, dated 23 March 2000, as supplier of a public
telecommunication service (Ref. 900389)
(b) Registration, dated 23 March 2000, as constructor or supplier of a
public telecommunication network (Ref. 900387)
(c) Registration, dated 23 March 2000, as constructor or supplier of
leased lines (Ref. 900390)
(d) Registration, dated 23 March 2000, as supplier of a system of
conditional access (Ref. 900388)
(e) Registration, dated 23 March 2000, as constructor or supplier of a
broadcast network (Ref. 900386)
8. UPC Haarlem B.V. (formerly known as Kabel Haarlem B.V.)
-------------------------------------------------------
(a) Registration, dated 18 July 2000, as supplier of a public
telecommunication service (Ref. 900457)
(b) Registration, dated 18 July 2000, as constructor or supplier of a
public telecommunication network (Ref. 900456)
(c) Registration, dated 18 July 2000, as constructor or supplier of leased
lines (Ref. 900459)
(d) Registration, dated 18 July 2000, as supplier of a system of
conditional access (Ref. 900460)
(e) Registration, dated 18 July 2000, as constructor of supplier of a
public telecommunication network (Ref. 900458)
9. Tebeci Netwerken B.V.
---------------------
(a) Registration, dated 24 June 1999, as constructor or supplier of a
public telecommunication network (Ref. 900312)
(b) Registration, dated 23 September 1999, as constructor or supplier of a
broadcast
<PAGE>
197
network (Ref. 900369)
10. Tebecai Telecom B.V.
--------------------
(a) Registration, dated 28 September 1999, as supplier of a
telecommunication service (Ref. 900494)
(b) Registration, dated 28 September 1999, as constructor or supplier of
leased lines (Ref. 900309)
11. Eneco Kabel TV & Telecom B.V.
-----------------------------
(a) Registration, dated 4 June 1999, as supplier of a public
telecommunication service (Ref. 900265)
(b) Registration, dated 3 June 1999, as constructor or supplier of a
public telecommunication network (Ref. 900249)
(c) Registration, dated 4 June 1999, as constructor or supplier of leased
lines (Ref. 900264)
(d) Registration, dated 3 June 1999, as constructor or supplier of a
broadcast network (Ref. 900248)
VII. Norwegian Licences
------------------
(a) List of "Registered providers of public telephony and public telephone
services" (Registrerte tilbydere av offentlig telenett og offentlig
tjenester) from the Norwegian Post Telecommunications Authority - og
teletilsynet (PTA), dated 29 June 2000
(b) "Assignment of number series" (Tildeling av nummerserier) by the PTA,
dated 24 April 1998
(c) Assignment of prefix number 1503 to UPC Norge AS, by the PTA on 25 May
1998
(d) "License for point-to-multipoint systems" (Konsesjon for punkt-til-
multipunkt systemer") from PTA dated 15 May 1998
(e) "Temporary license for test projects" (Midlertidig konsesjon til
pr0veprosjekter) from the Ministry of Cultural Affairs, dated 27 March
1998
(f) "Temporary license for the establishment of a personal data registry"
(Midlertidig konsesjon for opprettelse av personregister) from the
Data Protection Authority, dated 15 February 1999 with letter granting
exemption from the requirement to delete traffic data within the
ordinary time limit of 14 days, dated 1 October 1999
(g) "Assignment of an International Point Code" (for Signaling - ISPC)
(Tildeling av internasjonal punktkode), granted by the PTA on
11October 1999, to UPC Norway
(h) "Authorisation to provide installation services relating to cable
networks" (Autorisasjon av kabel-TV-Installat0rvirksomhet), granted by
the PTA on 21 November 1996
VIII. Romanian Licences
-----------------
<PAGE>
198
1. Somax SRL
---------
(a) Broadcasting License No. C106 dated 18 May 1993 (for radio/television
- broadcasting by cable issued by the National Audiovisual Council;
duration unknown);
(b) Prior technical endorsement dated 9 November 1994 (for audiovisual
communication by cable issued by the Ministry of Communications -
Department for Regulations in the field of Communications; duration
unknown);
(c) Authorisation Decision No. 93 dated 25 January 1995 (for audiovisual
communication by cable [in Botosani] issued by the Ministry of
Communications - Department for Regulations in the field of
Communications; duration 10 years);
(d) Broadcasting License No. C346 dated 3 March 1994 (for radio/television
broadcasting by cable issued by the National Audiovisual Council;
duration unknown);
(e) Prior technical endorsement dated 19 August 1994 (for audiovisual
communication by cable issued by the Ministry of Communications -
Department for Regulations in the field of Communications; duration
unknown);
(f) Authorisation Decision No. 172 dated 8 June 1995 (for audiovisual
communication by cable [in Targu Frumos] issued by the Ministry of
Communications -Department for Regulations in the field of
Communications; duration illegible);
(g) Broadcasting License No. C386 dated 15 March [year illegible] (for
radio/television - broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(h) Prior technical endorsement dated 16 January 1995 (for audiovisual
communication by cable issued by the Ministry of Communications -
Department for Regulations in the field of Communications);
(i) Authorisation Decision No. 173 dated 8 June 1995 (for audiovisual
communication by cable [in Harlau] issued by the Ministry of
Communications Department for Regulations in the field of
Communications).
2. Eurostat CATV SRL
-----------------
(a) Authorisation No. AP009 dated 11 July 1995 (for broadcasting own
programmes issued by the National Audiovisual Council);
(b) Authorisation Decision No. 186 dated 5 July 1995 (for audiovisual
communication by cable [in Bacau] issued by the Ministry of
Communications- Department for Regulations in the field of
Communications).
3. Selectronic SRL
---------------
(a) Broadcasting License No. C004 dated 11 January 1993 (for
radio/television -broadcasting by cable issued by the National
Audiovisual Council);
(b) Authorisation Decision No. 91 dated 29 December 1994 (for audiovisual
<PAGE>
199
communication by cable [in Sf. Gheorghe] issued by the Ministry of
Communications - Department for Regulations in the field of
Communications);
(c) Broadcasting License No. C245 dated 9 December (for radio/television -
broadcasting by cable issued by the National Audiovisual Council;
duration unknown);
(d) Authorisation Decision No. 298 dated 19 April 1996 (for audiovisual
communication by cable [in Bacau] issued by the Ministry of
Communications- Department for Regulations in the field of
Communications; duration 10 years);
(e) Broadcasting License No. C858 dated 11 July 1995 for radio/television
- broadcasting by cable issued by the National Audiovisual Council;
duration unknown);
(f) Broadcasting License No. 644 dated 30 October 1998 (for audiovisual
communication by cable [in llieni] issued by the Ministry of
Communications- Department for Regulations in the field of
Communications; duration 10 years);
(g) Broadcasting License No. C859 dated 11 July 1995 (for radio/television
- broadcasting by cable issued by the National Audiovisual Council;
duration unknown);
(h) Authorisation Decision No. 643 dated 11 July 1995 (for audiovisual
communication by cable [in Bacau] issued by the Ministry of
Communications- Department for Regulations in the field of
Communications; duration 10 years);
(i) Broadcasting License No. C860 dated 11 July 1995 (for radio/television
- broadcasting by cable issued by the National Audiovisual Council;
duration unknown);
(j) Authorisation Decision No. 642 dated 30 October 1998 (for audiovisual
communication by cable [in Bacau] issued by the Ministry of
Communications- Department for Regulations in the field of
Communications; duration 10 years).
4. Multicanal Holdings
-------------------
(a) Broadcasting Licence No. C308 dated 1 March 1994 (for radio/television
- broadcasting by cable issued by the National Audiovisual Council;
duration unknown);
(b) Authorisation Decision No. 247 dated 20 November 1995 (for audiovisual
communications by cable issued by the Ministry of Communications;
duration unknown).
5. Diplomatic International Comimpex SRL
-------------------------------------
(a) Broadcasting License No. C003 dated 11 January 1993 (for
radio/television -broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(b) Authorisation Decision No. 22 dated 24 April 1994 (for audiovisual
communication
<PAGE>
200
by cable [in Focsani] issued by the Ministry of Communications -
Department for Regulations in the field of Communications; duration 10
years);
(c) Broadcasting License No. C059 dated 12 March 1993 (for
radio/television -broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(d) Authorisation Decision No. 68 dated 3 November 1994 (for audiovisual
communication by cable [in Tecuci] issued by the Ministry of
Communications- Department for Regulations in the field of
Communications; duration 10 years);
(e) Broadcasting License No. C286 dated 10 February 1994 (for
radio/television- broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(f) Authorisation Decision No.65 dated 3 November 1994 (for audiovisual
communication by cable [in Adjud] issued by the Ministry of
Communications- Deparment for Regulations in the field of
Communications; duration 10 years);
(g) Broadcasting License No. C365 dated 15 March 1994 (for
radio/television -broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(h) Authorisation Decision No. 306 dated 8 May 1996 (for audiovisual
communication by cable [in Gugesti] issued by the Ministry of
Communications - Department for Regulations in the field of
Communications; duration 10 years);
(i) Broadcasting License No. C370 dated 15 March 1994 (for
radio/television -broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(j) Authorisation Decision No. 308 dated 8 May 1996 (for audiovisual
communication by cable [in Golesti] issued by the Ministry of
Communications - Department for Regulations in the field of
Communications; duration 10 years).
6. Control Cable Ventures
----------------------
(a) Broadcasting License No. C696 dated 4 April 1995 (for
radio/television - broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(b) Authorisation Decision No. 178 dated 8 June 1995 (for audiovisual
communication by cable [in Ploiesti] issued by the Ministry of
Communications - Department for Regulations in the field of
Communications; duration 10 years);
(c) Broadcasting License No. C1263 dated 17 December (for
radio/television - broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(d) Authorisation Decision No. 499 dated 30 January 1998 (for audio/visual
communication by cable [in Slobozia] issued by the Ministry of
Communications - Department for Regulations in the field of
Communications; duration 10 years);
<PAGE>
201
(e) Broadcasting License No. C1967 dated 16 September 1999 (for
radio/television - broadcasting by cable issued by the National
Audiovisual Council; duration unknown);
(f) Authorisation Decision No. 805 dated 13 March (for audiovisual
communication by cable [in Tandarei] issued by National Communications
Agency - Department for Regulations and Licenses in the field of
Communications; duration 10 years).
IX. Slovakian Licences
------------------
A. UPC Slovensko s.r.o
-------------------
Capital City of Bratislava, Trencin, Zilina, Dolny Kubin, Banska Bysrica
------------------------------------------------------------------------
and Dunajska Streda
-------------------
(a) Cable Broadcasting licence T/76 dated 3 January 1997 valid until 4
January 2009
(b) Info channel broadcasting licence TKR/13 dated 20 December 1993 valid
until 21 December 2005
1. Capital City of Bratislava:
--------------------------
(a) Municipality of Rubinov
-----------------------
Authorisation dated 1 January 1994
(b) Municipality of Podunajske Byskupice
------------------------------------
Authorisation dated 31 August 1994
(c) Municipality of Nove Mesto
--------------------------
Authorisation dated 28 February 1996
(d) Municipality of Petralka
------------------------
Authorisation dated 6 October 1994
(e) Municipality of Karlova Ves
---------------------------
Authorisation dated 13 March 1996
(f) Municipality of Dubravka
------------------------
Authorisation dated 3 August 1994
(g) Municipality of Lama
--------------------
Authorisation dated 3 August 1994
(h) Municipality of Vrakua
----------------------
Authorisation dated 10 November 1994
<PAGE>
202
(i) Municpality of Raa
------------------
Authorisation dated 7 October 1994
(j) Municipality of Vajnory
-----------------------
Authorisation dated 24 April 1996
(k) Municipality of Jarovce
-----------------------
Authorisation dated 18 April 1996
(l) Municipality of Rusovce
-----------------------
Authorisation dated 18 June1996
(m) Municipality of unovo
---------------------
Authorisation dated 29 February 1996
(n) Municipality of Stare Mesto
---------------------------
Authorisation dated 11 July 1994
(o) Municipality of Devin
---------------------
Authorisation dated 11 December 1998
2. City of Trenin:
--------------
(a) Municipality of Trencin
-----------------------
Authorisation dated 22 June 1995
3. City of ilina
-------------
(b) Municipality of ilina
---------------------
Authorisation dated 4 September 1995
4. City of Dolny Kubin
-------------------
(c) Municipality of Dolny Kubin
---------------------------
Authorisation dated 22 June 1995
5. City of Banska Bystrica
-----------------------
(a) Municipality of Banska Bystrica
-------------------------------
Authorisation dated 31 July 1995
<PAGE>
203
6. City of Dunajska Streda
-----------------------
(a) Municipality of Dunajska Streda
-------------------------------
Authorisation dated 4 August 1994
B. KabelTel s.r.o
--------------
City of Zvolen, Nove Zamky and Levice
-------------------------------------
(a) Cable Broadcasting licence TKR/139 dated 13 April 1999 valid until 14
April 2011
1. City of Zvolen
--------------
(a) Municipality of Zvolen
----------------------
Authorisation dated 30 November 1995 and Amendment no.1 and no.2
2. City of Nove Zamky
------------------
(a) Municipality of Nove Zamky
--------------------------
Authorisation dated 17 April 1997 and Amendment no.1
3. City of Levice
--------------
(a) Municipality of Levice
----------------------
Authorisation dated 3 June 1998
C. Trnavatel s.r.o Trnava
----------------------
3. City of Trnava
--------------
(a) Municipality of Trnava
----------------------
(i) Authorisation dated 20 July 1994
(ii) Cable Broadcasting licence TKR/161 dated 20 December 1999
D. Kabel Plus a.s. Bratislava
--------------------------
City of Bratislava, Hlohovec, Banovce nad Bebravoc and Stara Tura
-----------------------------------------------------------------
(a) Cable Broadcasting licence TKR/11 dated 21 October 1998 valid until 22
October 2005
(b) Info channel broadcasting licence T/103 dated 17 December 1998 valid
until 22 October 2005
9: City of Hlohovec
----------------
Authorisation dated 9 October 1991
10: City of Banovce nad Bebravou
----------------------------
<PAGE>
204
________________________________________________________________________________
Authorisation dated 6 November 1991
11: City of Stara Tura
------------------
Authorisation dated 2 December 1991
12: City of Pezinok
---------------
Authorisation dated 27 June 1995
E. Kabel Plus a.s. Banska Bystrica
-------------------------------
City of Banska Bystrica, Revuca, Sliac, Lucenec and Povazska Bystrica
---------------------------------------------------------------------
(a) Cable Broadcasting licence TKR/10 dated 19 October 1993 valid until 20
October 2005
(b) Info channel broadcasting licence T/6 dated 19 October 1993 valid
until 20 October 2005
X. Swedish Licences
----------------
(a) UPC Sverige AB
--------------
Licence to provide telephony service HK 95-68 dated 24/th/ July 1995,
conditions replaced by decision 99-18777, dated 21/st/ December 1999,
which incorporates conditions adopted by decision 96-16693, dated
6/th/ August 1998
________________________________________________________________________________
<PAGE>
205
________________________________________________________________________________
SIGNATORIES
BORROWERS
UPC DISTRIBUTION HOLDING B.V.
By: JEREMY EVANS
UPC FINANCING PARTNERSHIP
By: JEREMY EVANS
Original Guarantors
UPC DISTRIBUTION HOLDING B.V.
By: JEREMY EVANS
UPC HOLDING II B.V.
By: JEREMY EVANS
UPC FINANCING PARTNERSHIP
By: JEREMY EVANS
UPC HOLDING B.V.
By: JEREMY EVANS
UPC FRANCE HOLDING B.V.
By: JEREMY EVANS
UPC SCANDINAVIA HOLDING B.V.
By: JEREMY EVANS
________________________________________________________________________________
<PAGE>
206
________________________________________________________________________________
Lead Arrangers
CHASE MANHATTAN plc
By: ANN B KERNS
TD BANK EUROPE LIMITED
By: STEPHEN MCPHERSON
ABN AMRO BANK N.V.
By: STEPHEN MCPHERSON
BANK OF AMERICA INTERNATIONAL LIMITED
By: STEPHEN MCPHERSON
BNP PARIBAS
By: STEPHEN MCPHERSON
CIBC WORLD MARKETS plc
By: ANN B KERNS
CREDIT LYONNAIS S.A.
By: ANN B KERNS
FORTIS BANK (NEDERLAND) N.V.
By: ANN B KERNS
THE ROYAL BANK OF SCOTLAND plc
By: ANN B KERNS
________________________________________________________________________________
<PAGE>
207
________________________________________________________________________________
Lenders
THE CHASE MANHATTAN BANK
By: ANN B KERNS
THE TORONTO-DOMINION BANK
By: STEPHEN MCPHERSON
TORONTO DOMINION (TEXAS), INC.,
By: JANO MOTT
ABN AMRO BANK N.V.
By: STEPHEN MCPHERSON
BNP PARIBAS, BELGIAN BRANCH
By: STEPHEN MCPHERSON
CIBC WORLD MARKETS plc
By: ANN B KERNS
CREDIT LYONNAIS S.A.
By: ANN B KERNS
FORTIS BANK (NEDERLAND) N.V.
By: ANN B KERNS
________________________________________________________________________________
<PAGE>
208
________________________________________________________________________________
N B INTERNATIONAL FINANCE B.V.
By: STEPHEN MCPHERSON
THE ROYAL BANK OF SCOTLAND plc
By: ANN B KERNS
ABBEY NATIONAL TREASURY SERVICES PLC
By: A J LYNN
LEHMAN COMMERCIAL PAPER Inc.
By: JENNIFER O'CALLAGHAN
BANCA COMMERCIALE ITALIANA S.p.A.
By: RICHARD ADAMS RICHARD OLIVER
BEAR STEARNS CORPORATE LENDING INC.
By: KEITH C BARNISH
CITIBANK, N.A.
By: PAUL HOUSE
CREDIT SUISSE FIRST BOSTON
By: MATTHEW VYLE KAMLESH VARA
DAIMLER CHRYSLER CAPITAL SERVICES (DEBIS) BELGIUM S.A.
By: ANN B KERNS
________________________________________________________________________________
<PAGE>
209
________________________________________________________________________________
DLJ CAPITAL FUNDING, INC.
By: THOMAS L NEWBERRY
DRESDNER BANK AG LONDON BRANCH
By: S CLUNIE M BURNYEAT
HARBOURMASTER LOAN CORPORATION B.V.
By: ANN B KERNS
GOLDMAN SACHS CREDIT PARTNERS, L.P.
By: VIVEK KUMAR
GOLDMAN SACHS CREDIT PARTNERS, L.P.
By: VIVEK KUMAR
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: G MACDONALD
IBM NEDERLAND FINANCIERINGEN B.V.
By: A LUNDQVIST
ING BANK N.V.
By: ANN B KERNS STEPHEN MCPHERSON
EUROCREDIT CDO I B.V. AND EUROCREDIT CDO II B.V.
By: ANDREW D JACKSON
________________________________________________________________________________
<PAGE>
210
________________________________________________________________________________
KBC FINANCE IRELAND
By: STEPHEN MCPHERSON
MERRILL LYNCH CAPITAL CORPORATION
By: MARTIN J MCINERNEY
DEBT STRATEGIES FUND III, Inc
By: JOSEPH MATTEO
DEBT STRATEGIES FUND II, Inc
By: JOSEPH MATTEO
DEBT STRATEGIES FUND, Inc
By: JOSEPH MATTEO
SENIOR HIGH INCOME PORTFOLIO, Inc.
By: JOSEPH MATTEO
MORGAN STANLEY SENIOR FUNDING Inc.
By: MAY F NASRALLAH
OPPENHEIMER SENIOR FLOATING RATE FUND
By: SCOTT FARRAR
SCOTIABANK EUROPE plc
By: ANN B KERNS
________________________________________________________________________________
<PAGE>
211
________________________________________________________________________________
VAN KAMPEN PRIME RATE INCOME TRUST
By: BRIAN T BUSCHER
VAN KAMPEN SENIOR INCOME TRUST
By: BRIAN T BUSCHER
UBS AG, LONDON BRANCH
By: J V MCCLOSKEY WILLIAM J GALLAGHER
Facility Agent
TD BANK EUROPE LIMITED
By: STEPHEN MCPHERSON
TORONTO DOMINION (TEXAS), INC.,
By: JANO MOTT
Security Agent
TD BANK EUROPE LIMITED
By: STEPHEN MCPHERSON
________________________________________________________________________________
