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FORM 10-K
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED
DECEMBER 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______________ TO ______________
Commission file number 0-24792
COMCAST UK CABLE PARTNERS LIMITED
(Exact name of registrant as specified in its charter)
BERMUDA Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Clarendon House Comcast Corporation
2 Church Street West 1500 Market Street, 35th Floor
Hamilton, HM 11, Bermuda Philadelphia, PA 19102-2148
(441) 295-5950 (215) 665-1700
(Address, including zip code, (Name, address, including
and telephone number, zip code, and telephone
including area code, number, including area code,
of Registrant's principal of agent for service)
executive offices)
--------------------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NONE
---------------------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Class A Common Shares, (UK Pound)0.01 par value
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Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No ____
--------------------------
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendments to
this Form 10-K.
[ X ]
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As of February 28, 1998, the aggregate market value of the Class A Common Shares
held by non-affiliates of the Registrant was $285.1 million.
--------------------------
As of February 28, 1998, there were 37,231,997 Class A Common Shares and
12,872,605 Class B Common Shares outstanding.
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DOCUMENTS INCORPORATED BY REFERENCE
NONE
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<PAGE>
COMCAST UK CABLE PARTNERS LIMITED
1997 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
PART I
Item 1 Business........................................................1
Item 2 Properties.....................................................15
Item 3 Legal Proceedings..............................................15
Item 4 Submission of Matters to a Vote of Security Holders............15
PART II
Item 5 Market for the Registrant's Common Equity and Related
Shareholder Matters ...........................................16
Item 6 Selected Financial and Other Data..............................17
Item 7 Management's Discussion and Analysis of Financial Condition and
Results of Operations.....................................21
Item 8 Financial Statements and Supplementary Data....................31
Item 9 Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure..................................71
PART III
Item 10 Directors and Executive Officers of the Registrant.............71
Item 11 Executive Compensation.........................................72
Item 12 Security Ownership of Certain Beneficial Owners
and Management.................................................72
Item 13 Certain Relationships and Related Transactions.................75
PART IV
Item 14 Exhibits, Financial Statement Schedules and
Reports on Form 8-K............................................76
SIGNATURES...................................................................79
This Annual Report on Form 10-K for the year ended December 31, 1997, at the
time of filing with the Securities and Exchange Commission, modifies and
supersedes all prior documents filed pursuant to Sections 13, 14 and 15(d) of
the Securities Exchange Act of 1934 for purposes of any offers or sales of any
securities after the date of such filing pursuant to any Registration Statement
or Prospectus filed pursuant to the Securities Act of 1933 which incorporates by
reference this Annual Report.
This Annual Report on Form 10-K contains forward looking statements made
pursuant to the "safe harbor" provisions of the Private Securities Litigation
Reform Act of 1995. Readers are cautioned that such forward looking statements
involve risks and uncertainties which could significantly affect expected
results in the future from those expressed in any such forward looking
statements made by, or on behalf of the Company. Certain factors that could
cause actual results to differ materially include, without limitation, the
effects of legislative and regulatory changes; the potential for increased
competition; technological changes; the need to generate substantial growth in
the subscriber base by successfully launching, marketing and providing services
in identified markets; pricing pressures which could affect demand for the
Company's services; the Company's ability to expand its distribution; changes in
labor, programming, equipment and capital costs; the Company's continued ability
to create or acquire programming and products that customers will find
attractive; future acquisitions; the NTL Transaction (see Item 1 - Business --
"General Developments of Business"); strategic partnerships and divestitures;
general business and economic conditions; and other risks detailed from time to
time in the Company's periodic reports filed with the Securities and Exchange
Commission.
<PAGE>
PART I
ITEM 1 BUSINESS
Comcast UK Cable Partners Limited and its subsidiaries (the "Company"), an
indirect controlled subsidiary of Comcast Corporation ("Comcast") (see Item 5 -
"Market for the Registrant's Common Equity and Related Shareholder Matters"),
was incorporated in 1992 to develop, construct, manage and operate the interests
of Comcast in the United Kingdom ("UK") cable and telecommunications industry.
As of December 31, 1997, the Company has interests in four operations (the
"Operating Companies"): Birmingham Cable Corporation Limited ("Birmingham
Cable"), in which the Company owns a 27.5% interest, Cable London PLC ("Cable
London"), in which the Company owns a 50.0% interest, Cambridge Holding Company
Limited ("Cambridge Cable"), in which the Company owns a 100% interest and two
companies holding the franchises for Darlington and Teesside, England
("Teesside"), in which the Company owns a 100% interest. On December 8, 1997,
the Company formed Comcast UK Holdings Limited ("UK Holdings") (a wholly owned
subsidiary incorporated in Bermuda) in order to secure a financing arrangement
to primarily fund capital expenditures and working capital requirements at
Cambridge Cable and Teesside (see "Item 7 - Management's Discussion and Analysis
- - Liquidity and Capital Resources").
When build-out of the Operating Companies' systems is complete, these systems
will have the potential to serve approximately 1.6 million homes and the
businesses within their franchise areas. As of December 31, 1997, the Operating
Companies' systems passed more than 1,197,000 homes or approximately 75% of the
homes in their franchise areas and served more than 298,000 cable subscribers,
359,000 residential telephony subscribers and 11,000 business telephony
subscribers.
The Company accounts for its interests in Birmingham Cable and Cable London
under the equity method. Through March 31, 1996, the Company also accounted for
its interest in Cambridge Cable under the equity method (see Note 4 to the
Company's consolidated financial statements). Collectively, Birmingham Cable,
Cable London and Cambridge Cable are referred to herein as the "Equity
Investees" (which term excludes Cambridge Cable as of and subsequent to March
31, 1996).
GENERAL DEVELOPMENTS OF BUSINESS
Amalgamation with NTL
On February 4, 1998, the Company entered into a definitive agreement to
amalgamate (the "NTL Transaction") with a wholly owned Bermuda subsidiary of NTL
Incorporated ("NTL"). NTL is an alternative telecommunications company in the UK
and is listed on Nasdaq. The NTL Transaction is expected to close in 1998,
subject to, among other things, the receipt of required Bermuda and UK
regulatory approvals, the approval of the Company's and NTL's shareholders, the
consent of the Company's and NTL's bondholders, the consent of certain NTL bank
lenders and other customary closing matters. Comcast, through its indirect
wholly owned subsidiary, Comcast U.K. Holdings, Inc. ("Holdings"), is the sole
holder of the multiple-voting Class B Common Shares of the Company (see Item 5 -
"Market for Registrant's Common Equity and Related Shareholder Matters") and has
agreed to vote for the transaction, assuring its approval by the Company's
shareholders. Upon consummation of the NTL Transaction, the Company would become
a wholly owned subsidiary of NTL.
Except in the circumstances described below, the Company's shareholders will
receive 0.3745 shares of NTL common stock for each of the Company's Class A
Common Shares or Class B Common Shares. If the average closing price of the NTL
common stock for a specified period of time prior to the Company's shareholders
meeting to approve the NTL Transaction (the "Average Price") is less than
$26.70, the Company will have the option to terminate the NTL Transaction,
subject to the right of NTL to adjust the exchange ratio such that one share of
the Company's Class A Common Shares or Class B Common Shares will be exchanged
for a number of shares of NTL common stock equal to $10.00 (based on the Average
Price).
Pursuant to existing arrangements between the Company and Telewest
Communications plc ("Telewest"), a co-owner of interests in Cable London and
Birmingham Cable, Telewest has certain rights (the "Telewest Rights") to acquire
either or both of the Company's interests in these systems as a result of the
NTL Transaction. However, as described in the following paragraphs, the
consummation of the NTL Transaction is not dependent on the resolution of the
Telewest Rights.
If the Telewest Rights have been exercised prior to the closing of the NTL
Transaction, the Company's shareholders may receive (at the option of NTL), in
lieu of a portion of the consideration allocable to the interest subject to the
exercised Telewest Rights, the per share proceeds from the sale of the interest
to Telewest (net of taxes on gain on sale), payable
<PAGE>
in cash or shares of NTL common stock valued at the greater of $30.00 per share
or the Average Price at closing (the "Exercise Consideration").
Similarly, if at closing either of the Telewest Rights have not been exercised,
and have not been waived or otherwise expired, the Company's shareholders may
receive (at the option of NTL), shares of a new class of NTL preferred stock
equal to a portion of the consideration allocable to the interest subject to the
unexercised Telewest Rights. Any shares of NTL preferred stock would have the
same voting and dividend rights as shares of NTL common stock, would be subject
to redemption as described below, and would be expected to be listed for trading
on Nasdaq. If following closing the Telewest Rights are exercised, the NTL
preferred stock will be redeemed for the Exercise Consideration (based on the
Average Price at the time of exercise). If the Telewest Rights are resolved
without being exercised, the NTL preferred stock will be redeemed for NTL common
stock on a one-for-one basis.
Of the consideration to be received by the Company's shareholders in the NTL
Transaction, the parties have allocated 31% to the Company's interest in Cable
London and 17% to the Company's interest in Birmingham Cable. However, if either
or both of the Telewest Rights are exercised, the actual consideration to be
received by the Company's shareholders may be materially different from the
portion of the consideration (the "allocable portion") which has been allocated
by the parties to the Company's respective interests in Cable London and
Birmingham Cable, depending on, among other things, the value of these
interests, as finally determined, whether NTL exercises its option to deliver
the Exercise Consideration in lieu of the allocable portion and, the amount of
any taxes payable by the Company on the sale of these interests.
DESCRIPTION OF THE COMPANY'S BUSINESS
General
Cable communications, residential telephony and business telecommunications
services are similar in that they involve the transmission of information
between two or more geographically separated sites. The cable/telephony operator
generally offers subscribers these services for a monthly fee for access to the
distribution network, plus additional charges for certain usage of the network,
premium services and other services.
Cable Communications
A cable communications system delivers multiple channels of television
programming, primarily entertainment and information, to the homes of
subscribers who pay a monthly fee for the service. The Operating Companies
currently offer their subscribers a choice of basic services and various premium
services, including news services, sports channels, movies, and ethnic and
foreign language programs. Each Operating Company sets its own rates, including
a monthly fee for cable communications services. From time to time, the
Operating Companies offer premium services on a trial basis without charge or at
a discount.
The demand for cable communications services is, in part, a function of both
over-the-air reception quality and alternative programming availability. While
signal reception in the UK has been considered adequate, the increasing
availability of cable and satellite programming is providing an attractive
alternative to limited over-the-air and other sources of programming, including
video tape rentals.
Various sources of programming are available to cable system operators in the
UK. British Sky Broadcasting Group, plc ("BSkyB") is currently the industry's
and the Operating Companies' primary programming supplier. BSkyB is also the
principal provider of multi-channel direct-to-home ("DTH") satellite television
services in the UK. BSkyB's programming services are provided to all of the
Operating Companies in accordance with the BSkyB rate card (see "Competition -
Cable Communications").
Alternative programming sources are developing. For example, Flextech p.l.c.
("Flextech") owns interests in or manages companies that provide additional
sources of programming to the Operating Companies. Flextech is a publicly listed
UK company and is a majority owned subsidiary of Tele-Communications, Inc.
("TCI"), a co-owner of Telewest. In addition, the launch of digital television,
which is expected in 1998, will provide further potential programming sources to
the Operating Companies, but will also result in additional competition to their
cable communication services. The Company cannot predict to what extent other
alternative programming services will become available or what effect future
increases in the cost of programming will have on its or the Operating
Companies' future financial position, results of operations or liquidity.
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<PAGE>
The full extent to which cable communications systems will be able to compete
with existing and future television delivery systems is currently not known. The
Company believes that the architecture of the networks the Operating Companies
are constructing will enable them more easily to implement new technologies and
provide enhanced or new services. There can be no assurance, however, that
existing, proposed or as yet undeveloped technologies will not become dominant
in the future and render cable communications systems less profitable or even
obsolete. However, the Company endeavors to monitor closely all relevant
technological developments and to cause or encourage the Operating Companies to
position themselves to remain competitive.
Residential Telephony
Residential telephony service permits subscribers to place and receive telephone
calls to and from other telephone users in the local area, the rest of the UK or
the rest of the world. The Operating Companies route most calls made by or to
their subscribers through their network interconnections with other telephony
operators which include British Telecommunications plc ("BT") and Mercury
Communications Ltd. ("Mercury"), the two principal providers of nationwide
telephony services in the UK. Mercury is an indirect wholly owned subsidiary of
Cable & Wireless Communications plc ("Cable & Wireless") which is the largest
cable communications multiple system operator ("MSO") in the UK.
Each public telephony operator is required to negotiate an interconnection
agreement with any public telephony operator that seeks one and may request
Office of Telecommunications ("OFTEL") intervention if the parties cannot agree
on certain terms. The interconnection agreements are essentially wholesale
arrangements that set forth the fees charged for completing a call originating
on, carried over or terminating on a local or national public telephony
operator's network. BT provides interconnection to all Public Telecommunications
Operators ("PTOs") under the terms of a standard interconnection agreement.
OFTEL determines the charges for all standard interconnection services.
The Operating Companies have installed high capacity, digital telephony switches
in their systems. By owning and operating their own switches, the Operating
Companies are better able to monitor calling patterns and, without relying on BT
or Mercury, can provide detailed and customized billing and offer premium
services to their subscribers.
Each of the Operating Companies (with the exception of Cambridge Cable)
participates with certain other cable/telephony companies in a central network
service center in Woking, England (the "Network Service Center") established by
Telewest. Such services are provided to cable/telephony companies at a fee. The
Network Service Center provides 24-hour a day centralized switch engineering,
interconnect access administration and related support services.
Business Telecommunications
The business telecommunications market consists of the same services provided to
the residential telephony market, as well as the provision of a variety of
advanced telecommunications services. Business users frequently require higher
transmission capacity for additional services, including central exchange
("Centrex"), high-speed data services, leased access, voice mail, video
conferencing and other services.
- 3 -
<PAGE>
Operating Companies' Systems
The following table sets forth, for each Operating Company, Homes Passed, Homes
Marketed, Cable Subscriber, Residential Telephony Subscriber and Business
Telephony Subscriber information for the five years ended December 31, 1997. The
information presented below does not give effect to the Company's proportionate
ownership interests in the Equity Investees.
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
<S> <C> <C> <C> <C> <C>
Homes Passed (1)
Birmingham Cable 444,069 374,451 292,503 227,110 156,720
Cable London 358,707 312,050 246,198 171,864 121,755
Cambridge Cable 238,942 188,513 151,577 115,518 75,072
Teesside 155,505 100,542 40,608
Homes Marketed (2)
Birmingham Cable 429,638 369,512 291,875 220,632 150,248
Cable London 345,163 296,416 230,325 163,564 121,755
Cambridge Cable 224,833 174,868 142,237 107,987 64,846
Teesside 145,665 92,839 34,585
Cable Subscribers (3)
Birmingham Cable 116,995 111,432 88,719 73,540 55,356
Cable London 83,142 67,877 52,871 42,977 30,111
Cambridge Cable 52,766 45,378 36,799 30,763 16,007
Teesside 45,387 30,280 14,391
Residential Telephony Subscribers (4)
Birmingham Cable 123,354 105,128 81,268 57,944 35,430
Cable London 80,193 57,495 39,608 31,121 17,577
Cambridge Cable 76,350 56,448 43,002 33,302 12,012
Teesside 79,840 49,612 20,094
Business Telephony Subscribers (4)
Birmingham Cable 3,748 2,994 2,154 1,504 1,158
Cable London 2,963 2,560 1,864 1,429 889
Cambridge Cable 2,936 2,227 1,779 1,253 474
Teesside 1,796 554 75
<FN>
- ---------------
(1) A home is deemed "passed" if it can be connected to the distribution
system without further extension of the transmission lines.
(2) A home is deemed "marketed" if it has been released to the Operating
Companies' marketing departments for sales.
(3) A dwelling with one or more television sets connected to a system is
counted as one Cable Subscriber.
(4) A dwelling with one or more telephone lines connected to a system is
counted as one Telephony Subscriber.
</FN>
</TABLE>
Birmingham Cable Franchise Area. Birmingham Cable holds a franchise, awarded in
1988, for the cities of Birmingham and Solihull with approximately 443,000 homes
and the local delivery operator license for the Wythall franchise, a 4,000 home
franchise awarded in 1995.
Cable London Franchise Area. Cable London holds, through wholly owned
subsidiaries, the Camden, Haringey, Enfield and Hackney/Islington franchises,
which were awarded in 1989 and 1990. Cable London's franchise area covers a
contiguous area of approximately 65 square miles or roughly 20% of Greater
London and contains approximately 437,000 homes.
Cambridge Cable Franchise Area. Cambridge Cable holds, through wholly owned
subsidiaries, the Cambridge, Harlow and Ipswich/Colchester franchises, which
were awarded in 1990, and the local delivery operator (the "LDO") license for
the South East Anglia area (the "SEA Franchise"), which was awarded in 1995. The
franchise areas contain approximately 490,000 homes, although the build
milestones in the SEA Franchise only require Cambridge Cable to pass 104,000 of
the 205,000 homes in the SEA Franchise.
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<PAGE>
Teesside Franchise Area. Wholly owned subsidiaries of the Company hold the
Darlington and Teesside franchises which were awarded in 1991 and contain
approximately 254,000 homes.
Network Construction Costs
Construction of integrated cable/telephony systems is capital intensive,
requiring substantial investment for "network costs" including civils (trenching
and constructing underground ducts), cable and telephony plant and network
electronics, "subscriber costs", including converters, subscriber electronics
and installation of cable from the network to the subscriber's home, and other
costs such as head-end equipment, switching offices, land and buildings,
computers and furniture and fixtures. Through December 31, 1997, the Operating
Companies had incurred approximately (UK Pound)939 million to construct their
systems.
Costs relating to the construction of the Operating Companies' integrated
cable/telephony systems have been higher than costs to construct cable
communications systems in the United States ("US"). This is due, in part, to the
nature of system construction in the UK which requires incremental costs to
provide residential telephony and business telecommunications services in
addition to cable communications services. The UK does not have an
infrastructure of existing telephone poles, overhead lines or electrical
conduits in which to run new fiber optic and coaxial cable. Therefore, all cable
installation requires newly constructed, hand-trenched, underground ducts. The
provision of residential telephony and business telecommunications services
requires the installation of additional lines, as well as the installation of
high capacity, digital telephony switches and transmission equipment.
Revenue Sources
Cable Communications
The Operating Companies offer varying levels of cable communications service,
depending primarily on their respective channel capacities. Monthly service
rates and related charges vary in accordance with the type of service selected
by the subscriber. The Company may receive an additional monthly fee for premium
services, the charge for which varies with the type and level of service
selected by the subscriber. Additional charges are often imposed for
installation services, commercial subscribers, program guides and other
services. The Company also generates revenue from pay-per-view services and
advertising sales. Subscribers typically pay on a monthly basis and generally
may discontinue services at any time.
Residential Telephony
The Operating Companies charge residential telephony subscribers an initial
connection fee, a monthly exchange line rental fee, usage fees, which are
charges for each local, long distance or international call, and fees for
additional services.
Business Telecommunications
The Operating Companies charge business telecommunications subscribers a
connection fee based upon the number of lines being installed and for the
initial connection or reconnection to the Operating Companies' networks, a
monthly exchange line rental fee, usage fees, which are charges for each local,
long distance or international call, and fees for additional services.
Competition
Cable Communications
The Operating Companies' cable communications systems compete with direct
reception over-the-air broadcast television, DTH satellite-delivered television
services and private satellite master antenna television ("SMATV") systems. They
also compete, to varying degrees, with other communications and entertainment
media, including home video products, such as videotape cassette recorders,
movie theaters, live theater, live sporting events, newspapers and interactive
online computer services. The extent of such competition depends upon, among
other things, price, variety and quality of the programming offered and, with
respect to broadcast television, the quality of reception. In the future, cable
communications companies may face competition from television services offered
by national public telephony operators and by other competitors using existing
or new delivery systems. In March 1997, a new over-the-air broadcast
- 5 -
<PAGE>
channel, Channel 5 was launched, which is, currently, available to approximately
70% of the UK population through terrestrial broadcast.
There were an aggregate of approximately 3.7 million DTH subscribers compared to
approximately 2.5 million broadband cable subscribers throughout the UK as of
December 31, 1997. BSkyB offers DTH television service and currently is the
predominant competitor in the UK multi-channel television market. Since DTH is a
satellite-based system, the DTH provider does not need an underground cable
network to provide service to its subscribers. A DTH subscriber, however, must
purchase or rent a satellite receiver and dish and then pay monthly subscriber
fees to the DTH provider for the use of a decoder, which makes the satellite
signal usable. Although DTH service currently presents substantial competition
to cable communications service, the Company believes that cable communications
may have certain advantages over DTH. First, installation of satellite dishes
may require compliance with restrictive zoning ordinances and, for renters,
landlord's consent. Second, the satellite dishes must be installed outside of
the building with a "line-of-sight" orientation toward the transmitting
satellite, which can be problematic in urban areas. Third, DTH subscribers who
purchase, as opposed to rent, their satellite dishes must arrange and pay for
any servicing required for the dish. Fourth, without substantial improvements in
existing technology, DTH providers will not be able to offer telephony services
and local-oriented advertising and programming currently offered by cable
communications operators, or the interactive video services that the Operating
Companies expect to be able to offer in the future. The Company, however,
expects DTH providers, including BSkyB, to provide substantial competition for
the foreseeable future and no assurances can be given that they will not become
an even stronger competitor.
A significant factor in favor of BSkyB is its role as the sole source supplier
of many popular cable television programs, including most sports and movies. If,
in the future, BSkyB chooses to restrict the programming it makes available to
cable communications operators or offers it at relatively higher prices, the
Operating Companies could be at a significant competitive disadvantage. In 1995
and 1996, BSkyB's position regarding the supply of wholesale programming to the
pay TV market was the subject of a review by the Office of Fair Trading ("OFT").
Pursuant to informal undertakings given by BSkyB to the OFT following this
review, BSkyB published a rate card for cable operators, the structure of which
was agreed to by the Director General of Fair Trading. BSkyB is also required to
submit to the Director General separate accounts for its own DTH distribution
business. These accounts must disclose a charge for making its channels
available to its DTH distribution business which is not lower than the price at
which they are supplied to cable operators.
A number of UK cable operators have filed a complaint with the European
Commission about certain aspects of BSkyB's prices and trading conditions,
alleging violation of Articles 85 and 86 of the Treaty of Rome (which relate to
anti-competitive agreements and abuse of a dominant position, respectively).
This complaint is currently being reviewed by the European Commission. In
November 1996, the Independent Television Commission ("ITC") started a public
consultation process with respect to the way in which television channels are
currently bundled together for wholesale to cable operators and retail sale to
cable communications and DTH satellite customers. In August 1997, the ITC
announced that it would be extending this consultation into a second phase.
In the UK Government's 1991 review of the telecommunications industry (the
"Duopoly Review"), the UK Government stated that its policy was not to allow
national public telephony operators to convey or provide entertainment services
over their existing telephony network until March 2001. The new Labour
Government (elected on May 1, 1997) has indicated that this policy will be
reviewed, possibly starting in early 1998. The options to be considered range
from announcing a nationwide lifting of the restrictions at a future date to
establishing a program of rolling entry for such operators. Because of the
transmission capacity limitations of twisted pair copper wires historically used
in BT's telecommunications network, particularly between its local switching
sites and its customers' homes, and the age and condition of older portions of
BT's network, the Company believes that BT may not be able to provide cable
communications service comparable to that offered by the Operating Companies
without substantial capital investment or unless substantial improvements are
made in digital compression or other technologies.
The ITC has confirmed that, in its view, a video-on-demand service does not need
to be licensed as a local delivery service. In addition, the Department of Trade
and Industry ("DTI") and OFTEL have taken the view that the existing
telecommunications licenses of BT and other national public telephony operators
would not prohibit them from providing video-on-demand services over their
systems. The Operating Companies similarly are not prevented from providing
video-on-demand services. Video-on-demand services involve transmission of
individual programs to a single household in response to a particular request.
In order to offer video-on-demand services on a broad scale, the Company
believes that BT would be required to upgrade its existing telecommunications
switches and to install video distribution facilities and subscriber decoder
devices. After initial trials of video-on-demand in Colchester and Ipswich using
standard telephone lines, further video-on-demand trials were carried out by BT
with up to 1,000 customers connected to its
- 6 -
<PAGE>
Westminster cable franchise in London. The British Broadcasting Corporation
("BBC") is also developing a video-on- demand service for digital television
that may allow viewers to see all the programs stored in its archives. No
assurance can be given that video-on-demand will not provide substantial
competition in the future.
The 1996 Broadcasting Act (the "1996 Act"), which became law in July 1996,
amended the 1990 Broadcasting Act (the "Broadcasting Act," which replaced the
Cable and Broadcasting Act 1984 (the "Cable Act")) and makes provision for the
regulation of broadcasting in digital form of television and sound program
services. The 1996 Act also addresses rights to televise sporting or other
events of national interest. In May 1997, BT, BSkyB, Midland Bank (part of the
HSBC group) and Matsushita Electric announced the formation of a joint venture
called British Interactive Broadcasting ("BIB"), which is intended to deliver
digital interactive services to television viewers in the UK. BIB will also have
the capability to offer educational programming, specialist local community and
national public information services, as well as connection to the Internet. BIB
will provide subsidies on digital satellite set top boxes capable of receiving
BIB services (as well as other satellite broadcast services). In December 1997,
the ITC granted a digital multiplex license to British Digital Broadcasting
("BDB"), a consortium comprising Carlton Communications and Granada Group, under
which BDB will be authorized to provide a digital terrestrial television
service. This service is expected to commence operations in 1998. BIB intends to
offer a version of its service to BDB, as well as to cable operators. The
European Commission is currently reviewing the BIB joint venture. BSkyB has also
announced that it intends to launch a digital satellite broadcast service before
the end of the second quarter of 1998. The introduction of digital terrestrial
and digital satellite television will provide additional programming and
terrestrial channels and, therefore, additional competition for the Operating
Companies.
Residential Telephony
BT, which serves approximately 90% of the UK residential telephony market as of
March 31, 1997, is the Operating Companies' principal competitor in providing
local residential telephony service. As the principal end-to-end provider of
telecommunications services in the UK, BT is, and can be expected to remain, a
formidable competitor. BT has a fully-built national network and resources
substantially greater than those of the Company and the Operating Companies. BT
also offers promotional programs and additional services in order to compete
more effectively with cable/telephony operators such as the Operating Companies.
There can be no assurance that the Operating Companies will be able to compete
successfully with BT. In addition, the Operating Companies compete with cellular
telephony operators (i.e. Cellnet (60% owned by BT) and Vodafone); personal
communications network operators, such as "Mercury one 2 one" (50% owned by
Mercury and 50% owned by US West) and "Orange"; and wireless local loop
providers. They also compete with Mercury, which, through an interconnect
agreement with BT, is able to provide alternative access fixed- link residential
telephony service even though it generally has not built residential local loop
networks. Although the Operating Companies' licenses do not permit them to offer
cellular telephony services, they are not prohibited from seeking additional
licenses to do so or from entering into distribution agreements with existing
cellular telephony operators.
Business Telecommunications
Competition in the business telecommunications area has been substantial and,
because of the number of competitors in this area, is expected to intensify. BT
is the principal competitor in providing business telecommunications services.
In addition to BT, the Operating Companies compete with Mercury, as well as
other telecommunications companies, including ENERGIS Communications Limited,
MFS Communications Limited and City of London Telecommunications Limited. BT and
Cable & Wireless have resources substantially greater than those of the Company
and the Operating Companies, and there can be no assurances that the Operating
Companies will be able to compete successfully with BT, Mercury or other
telecommunications companies.
In July 1996, BT's license was modified to ensure the introduction of number
portability, which allows BT's existing customers to retain their existing
telephone number when they switch from BT to another carrier such as the
Operating Companies (see "Legislation and Regulation - Telephone Number
Portability"). At the end of 1995, the UK Monopolies and Mergers Commission
("MMC") ruled that BT should pay approximately 70% of the costs involved in
number portability, while other operators would pay the rest. In January 1997,
OFTEL determined BT's costs in providing number portability and the amounts it
can charge to other operators to recover those costs. In April 1997, OFTEL
consulted on modifications to the licenses of BT and other operators to
implement number portability of non-geographic numbers (e.g. premium rate
services, etc.). A draft determination of BT's charges for non-geographic number
portability was issued in November 1997. The majority of PTO licenses were
modified in January 1998 to oblige operators to provide number portability
services.
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Legislation and Regulation
General. The operation of a cable/telephony network in the UK is regulated under
both the Broadcasting Act and the Telecommunications Act 1984 (the
"Telecommunications Act"). The operator of a cable/telephony franchise covering
over 1,000 homes must hold two principal licenses: (i) a cable television
license (called a "local delivery operator license" under the Broadcasting Act)
issued in the past under the Cable Act or since 1990 under the Broadcasting Act,
which allows the operator to provide cable television services in the franchise
area, and (ii) a telecommunications license issued under the Telecommunications
Act, which allows the operator to operate and use the physical network necessary
to provide cable television and telecommunications services. The ITC is
responsible for the licensing and regulation of cable television. The DTI is
responsible for issuing, and OFTEL is responsible for regulating the holders of,
the telecommunications licenses. In addition, an operator is required to hold a
license under the Wireless Telegraphy Acts of 1949-67 for the use of microwave
distribution systems. Any system covering 1,000 homes or less requires a
telecommunications license but not a cable television license, and a system that
covers only one building or two adjacent buildings can operate pursuant to an
existing general telecommunications license.
In addition, cable operators must comply with and are entitled to the benefits
of the New Roads and Street Works Act 1991, the principal benefit of which is to
allow cable operators to "piggy back" their construction on that of local
utilities. As a practical matter, however, the aggressive build schedules
followed by the Operating Companies make waiting for other local utilities to
undertake construction impractical.
The cable television licenses held by the Operating Companies and/or their
subsidiaries were initially issued under the Cable Act for 15-year periods. With
the exception of the SEA Franchise and the Wythall franchise in the Birmingham
Cable franchise area (the cable television licenses for which were granted under
the Broadcasting Act in 1995 for 15-year periods), the terms of these licenses
have been extended to 23 years and are scheduled to expire beginning in late
2012 (see "Cable Television License - New Cable Television Licenses and
Renewals"). The telecommunications licenses held by subsidiaries of the
Operating Companies are for 23-year periods and are scheduled to expire
beginning in late 2012 (see "Telecommunications License - New Telecommunications
Licenses; Renewal; Revocation; Transfer).
Cable Television License
General. The stated policy of the ITC is that only one cable television license
will be granted in each franchise area. Each such license gives the holder the
right to provide cable television services within the franchise area using cable
(and in the case of cable television licenses issued or renewed for 15-year
periods under the Broadcasting Act, also by means of microwave distribution
systems). Affiliates of BT, Mercury and other national public telephony
operators are currently allowed to apply for and hold cable television licenses
and, since March 1994, the telephony operators have been allowed to apply
directly for and hold licenses in new franchise areas.
Cable operators are subject to competition within their franchise areas from
direct reception over-the-air broadcast television, DTH satellite-delivered
television services and SMATV systems. With respect to the operation of a SMATV
system within a cable operator's franchise area, the DTI has stated that the
cable operator will have a right of first refusal to provide a similar or
superior service at a reasonable price before the SMATV system will be permitted
to begin operations, subject to, among other things, the cable operator being in
compliance with the build schedules of its telecommunications licenses and other
previous commitments to provide service elsewhere in its franchise areas.
New Cable Television Licenses and Renewals. Cable television licenses originally
issued under the Cable Act were for a period of 15 years and, upon expiration,
may either be extended for an eight-year period, if the cable operator holds a
23-year telecommunications license, or renewed for successive 15-year periods
under the Broadcasting Act. An application for renewal generally must be made to
the ITC within five years prior to the expiration of the license. A renewal will
be granted if the operator agrees with the ITC upon the fees to be paid and,
among other things, the operator's proposed telecommunications system is
acceptable to the DTI or OFTEL. If an operator chooses to extend its license for
an eight-year period, it will not be required to pay the annual fees referred to
below, but at the end of the eight-year period the license cannot be renewed
again and will be put out for tender and awarded to the highest bidder, as
described below. This is the position for the Operating Companies which have all
elected to extend their cable television licenses (except for the LDO licenses
for the SEA Franchise and the Wythall franchise in the Birmingham Cable
franchise area) for an additional eight-year period. If an operator chooses to
renew its license for a 15-year period, it will be required to pay annually,
during the renewal period, a percentage to be fixed by the ITC of the operator's
cable television related revenues, plus an additional amount that the ITC
believes a successful applicant would have bid for
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the franchise if it were being offered as a new franchise. At present, cable
operators are only required to pay to the ITC annual fees, which in the
aggregate are intended to cover the ITC's administrative costs.
As of December 31, 1997, cable television licenses have been granted in the UK
covering franchise areas with approximately 18.4 million homes. The ITC is
continuing to offer for tender, cable television licenses for new franchise
areas covering the remaining 5.3 million homes in the UK. Under the Broadcasting
Act, a new cable television license will be granted to the applicant who submits
the highest cash bid (i.e. offers to pay the highest annual cash sum to the ITC
during each year of the license), except where it appears to the ITC that there
are "exceptional circumstances" which make it appropriate for the cable
television license to be awarded to another applicant. Under any new cable
television license, operators will be required to pay annually to the ITC,
during the term of the license, a percentage to be fixed by the ITC of the
operator's cable television related revenues, plus an additional amount equal to
the operator's cash bid. The percentage fixed by the ITC for the new franchises
so far to come up for bid under the Broadcasting Act have varied from 0% for the
term of the license to a graduated fee structure of 0% for the first five years,
3.0% for the next five years and 8.0% for the last five years. Certain entities,
including local authorities, political bodies or groups, religious organizations
and advertising agencies, are presently not allowed to bid for or have certain
interests in entities holding cable television licenses. Ownership restrictions
also apply to holders of other Broadcasting Act licenses or local newspapers
serving the same area as that served by the cable operator. The Secretary of
State has broad discretion to amend the rules relating to cross-media ownership
and accumulations of interests in licensed services. In May 1995, the UK
Government published proposals for certain changes relating to these rules which
recognize the continuing need for specific rules governing media ownership
beyond those which apply under general competition law but also need to
liberalize existing ownership regulations both within and across different media
sectors. These rules were subsequently incorporated into the 1996 Act.
Transfers of Licenses. The Broadcasting Act permits the transfer of a license to
a third party with the prior written consent of the ITC. The ITC has absolute
discretion to refuse any proposed transfer of a license. In addition, certain
changes in ownership of the licensee and certain acquisitions of an interest
(direct or indirect) in the licensee require 28 days notification to the ITC.
Revocation of Licenses. The ITC can, after consultation with the DTI and OFTEL,
revoke a cable television license if an operator fails to comply with its
conditions or with any direction of the ITC and the ITC considers revocation to
be in the public interest. If there is any change in either the nature or
characteristics of an operator that is a corporate entity, or any change in the
persons controlling or having an interest in it, the ITC can decide to revoke
the license if due to such changes it would not have awarded the license under
the new circumstances. With respect to licenses issued under the Broadcasting
Act, the ITC can also impose fines and shorten the license period.
Obligations of Licensees. Under the Broadcasting Act, cable operators may carry
certain licensed program services on their systems and are responsible for
ensuring that advertising and foreign satellite programs included by them in
their services conform to the restrictions set forth in the codes on
advertising, sponsorship and programming produced by the ITC. Both the cable
television and the telecommunications licenses impose obligations on the
licensees to provide any information which either OFTEL or the ITC may require
for purposes of exercising their statutory functions.
Digital Broadcasting
The 1996 Act permits the provision of the following types of digital terrestrial
broadcast services: digital "program services", digital "additional services"
(e.g. text-based services) and digital "qualifying services." Under the 1996
Act, qualifying services essentially comprise the broadcast in digital form of
services currently provided in analog form by existing terrestrial broadcasters
such as ITV, Channel 4 and the new Channel 5.
The 1996 Act distinguishes between "multiplex service providers" (who provide
the transmission infrastructure) and "digital program providers" (who provide
the programs to be transmitted). Both need to be licensed under the 1996 Act,
although the holders of existing licenses for ITV, Channel 4, Channel 5 and the
public teletext service will not require new broadcast licenses in order to
simulcast their existing services in digital form. The BBC will be authorized to
provide digital programs under its Royal Charter.
Under the 1996 Act, capacity on multiplexes has been allocated to existing
terrestrial broadcasters. In January 1997, applications for further digital
terrestrial multiplex licenses were received by the ITC from BDB, Digital
Television Network (owned by NTL) and S4C Digital. BDB and S4C Digital were
successful in their applications and have been awarded multiplex licenses. BDB's
license for three multiplex frequencies was only awarded (in December 1997)
after
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BSkyB had withdrawn from the BDB consortium at the ITC's request. BDB's
application has also been reviewed by the European Commission. At the time of
awarding multiplex licenses to BDB and Digital 3 and 4 Ltd, the ITC indicated
that it was now in a position to accept applications for digital program and
additional (text/data) service licenses. As of March 18, 1998, no applications
for such licenses have been received by the ITC.
The Operating Companies will be under a "must carry" obligation for digital
qualifying services (i.e. the digital simulcasts of analog television
broadcasts) as and when broadcast of those digital qualifying services starts
and if they are operating a digital system.
Telecommunications License
General. A telecommunications license permits the cable operator to operate the
system over which it provides cable communications and telecommunications
services. It also authorizes the operator to connect its system to other cable
communications or telecommunications systems including those operated by the
broadcasting authorities, satellite systems and certain other systems outside
the UK. Although the telecommunications license is granted for a particular
area, it is not exclusive, and as a result, a cable operator will have to
compete in the provision of telephony and other telecommunications services with
national public telephony operators, such as BT and Mercury, and other telephony
companies in their franchise areas.
A cable operator who holds a telecommunications license is subject to the
Telecommunications Code (the "Code"), which is contained in the
Telecommunications Act. The Code grants certain rights in respect of the keeping
of apparatus such as ducts, cables and equipment on private or public land and
the procedures to be used for installation of equipment on public highways.
Cable operators are generally required by the Code to enter into bonding
obligations with local authorities in order to ensure reinstatement of roads and
streets in the event the operator becomes insolvent, ceases to carry on its
business or has its telecommunications license terminated.
New Telecommunications Licenses; Renewal; Revocation; Transfer.
Telecommunications licenses that have been issued to date to cable operators
have been for periods of either 15 or 23 years. The grant or renewal of any
telecommunications license involving new construction, construction
specifications and timetables (generally expressed in terms of the number of
homes passed) will be reviewed by the applicable authorities and will be
incorporated in the terms of the license that is ultimately granted, except for
new franchises, where the construction obligations are enforced by the ITC. It
is OFTEL's responsibility to enforce compliance with the build schedules and the
other conditions of the license. In addition, certain changes in ownership of
the licensee and certain acquisitions of an interest (direct or indirect) in the
licensee require 30 days' notification to DTI. Failure to comply with the build
schedules or other conditions, the occurrence of certain insolvency events or
changes in control of the licensee which are deemed by the DTI to be contrary to
the UK's national security interests or relations with any other country could
result in revocation of both the telecommunications license and the cable
television license. Unlike a cable television license, a telecommunications
license is not transferable.
Technical Requirements. The principal technical requirements for cable/telephony
systems are contained in the telecommunications licenses, which address, among
other things, technical requirements for transmissions, performance and radio
interference restrictions.
Telephony Operations
Duopoly Review. In 1991, pursuant to the Duopoly Review, the requirement that
cable operators provide voice telephony services only as an agent for either BT
or Mercury was removed, thereby enabling cable operators to provide all forms of
wired telecommunications services, including the ability to independently switch
their own traffic. In addition, cable operators were granted the right to
require BT and Mercury to provide interconnection.
Interconnection Agreements. The commercial viability of telephony and other
telecommunications services provided by cable operators depends on their ability
to connect cost-effectively with other telecommunications systems. Cable
operators' systems must connect with systems operated by national public
telephony operators, international telephony companies or other telephony
operators, as the case may be, for calls that do not originate and terminate on
their systems. Each national public telephony operator (including BT and
Mercury), as well as the Operating Companies, is required to negotiate an
interconnection agreement with any other such operator that seeks one and
intervention can be requested from OFTEL if the parties cannot agree on certain
terms. OFTEL also has the power to enforce the obligations of a party
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under an interconnection agreement. In addition, BT is required by its license
to publish details of all interconnection agreements into which it enters.
In June 1996, OFTEL published a statement entitled, "Pricing of
Telecommunications Services from 1997 - OFTEL's Proposals for Price Control and
Fair Trading," in which it confirmed that it would continue working towards the
introduction of a network price cap as the basis for BT's interconnection
charges.
Following the issue of further consultation documents, OFTEL published its final
proposals on the network price cap in July 1997, establishing a framework which
effectively comprises four different approaches that OFTEL has now adopted in
relation to the pricing of BT's interconnection services, dependent on the
degree of competition as follows:
(i) for "competitive services," BT will be free to set the charges;
(ii) for "prospectively competitive services," BT will be subject to
a price cap on each such service equal to the percentage change
in the UK domestic retail price index ("RPI"), plus zero;
(iii) for bottleneck and non-competitive services, two baskets of
services will be introduced, each subject to a cap equal to RPI
less 8%; and
(iv) for interconnection-specific services, BT will be subject to
individual price caps equal to RPI less 8%.
The prices BT sets will be subject to the application of the fair trading
license condition (see above) and OFTEL intends to use "floors" and "ceilings"
as the main yardsticks to consider whether a charge is anti-competitive or not.
The starting values for its prices will be based on long-run incremental costs.
BT has agreed to the amendment of its license to reflect the new network charges
regime which will remain effective through October 10, 2001.
OFTEL has also stated that operators may be required to provide network
information to BT for interconnection purposes in much the same way as BT must
publish information about its own network, although OFTEL does not currently
propose to require other operators to publish their interconnection agreements.
In the future, requirements may also be applied to other operators in respect of
interconnection obligations, such as accounting separation and transparency of
calculation of interconnection charges, if OFTEL concludes that any such
operator has market power and is in a position to distort competition to the
detriment of consumers.
In April 1997, OFTEL announced proposals to ensure interworking between
interconnecting networks, as well as between customer premises equipment and
telecommunication networks. This was a recognition of the fact that the
introduction of new innovative telecommunication services in the UK would be
dependent on the inter-operability between competing networks. OFTEL has
proposed that for:
(1) "enhanced" services, no additional regulatory restrictions will be
imposed. The inter-operability of these services will be addressed by
ensuring that the basic network services which they use are
inter-operable between competing networks. Any anti-competitive
behavior by an enhanced service provider would be dealt with through
the general fair trading provisions;
(2) "basic network" services, rules will be established to address network
to network interface issues, as well as interface with the customer.
Operators with market power will have to publish any new network
interfaces 15 months in advance of their implementation and will have
an obligation to provide interconnection to other operators. New
customer interfaces will have to be published by all operators 15
months in advance of their launch.
OFTEL is considering responses to its proposals which are expected to be
implemented in 1998.
In June 1997, the European Commission adopted the Interconnect Directive (the
"Directive"), which essentially requires operators with "significant market
power" to provide interconnection on cost-based terms. These principles would
also apply to European cross-border interconnection which is currently subject
to the accounting rate regime. In November 1997, the DTI and OFTEL issued a
consultation document on the UK's implementation of the Directive. The
implementation has been effected by means of secondary legislation which came
into force at the end of 1997. The new rules will require:
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(1) modification of the interconnection obligations in all operators'
licenses;
(2) the designation of BT and Kingston Communication (in Hull) as
operators with "significant market power" in the fixed telephony
market, and Cellnet and Vodaphone as operators with "significant
market power" in the mobile market;
(3) a classification of those operators who should be entitled to
cost-based interconnection rates (representing, in OFTEL's view, a
slight widening from the current position); and
(4) operators with special or exclusive rights in other sectors will have
to produce separate accounts where the turnover in the relevant sector
exceeds ECU 50 million.
Price Regulation. In October 1996, BT's license was modified to include a new
retail price control of RPI minus 4.5%, which is applicable from August 1, 1997
until 2001, but only in relation to the bottom 80% of residential customers by
billed amounts. OFTEL has indicated that this is likely to be the last retail
price control imposed on BT. OFTEL has conceded that this, in combination with
the changes to network charges discussed above, will result in "vastly more
price freedom for a still dominant BT" at both the retail and network level.
However, OFTEL expects that the new fair trading provision (described below)
will protect others from BT's dominant position.
The new price control (together with the new fair trading provision) represents
a further withdrawal by OFTEL of detailed regulation giving BT greater pricing
freedom and reducing the number of activities which remain subject to price
control.
In October 1996, OFTEL also modified BT's license to introduce a new fair
trading condition which provides for similar prohibitions to those set out in
Articles 85 and 86 of the EC Treaty. The new license condition prohibits
entering into anti-competitive agreements and the abuse of a dominant position
in the UK, in addition to the prohibitions contained in the UK Competition Act
and Fair Trading Act. It will replace other, more specific fair trading
conditions in BT's license. While the condition will not render anti-competitive
agreements and practices void from the outset or impose automatic penalties for
non-compliance, it will enable the Director General to issue final and
provisional orders with respect to any such activity. The fair trading condition
has been or will be introduced in other operators' licenses including those of
the Operating Companies. The Company does not believe that this will have a
material effect on the Operating Companies' financial position, results of
operations or liquidity.
OFTEL has published guidelines on the operation of the fair trading condition
which explain how it will determine the relevant market and apply the
prohibitions set out in the new condition. OFTEL has stated in these guidelines
that it proposes to follow the approach used by the European Commission and the
European Court of Justice in determining issues such as market definition,
dominance and abuse of market power. These measures represent a reduction of
detailed regulation and a move by OFTEL to become more of a fair trading
authority.
The Duopoly Review resulted in the modification of BT's license to permit it to
offer discounts, subject to several conditions. Most importantly, BT is not
allowed to offer discounted services in local markets without offering them
nationally. For so long as this policy remains in effect, BT's ability to
respond to local competition will be restricted. In its Effective Competition
Document, OFTEL has proposed to make no change to its policy on limiting the
flexibility available to BT to target large volume customers or on restrictions
on BT offering locally-discounted services.
In February 1997, OFTEL issued for consultation its further proposals for
universal service in the UK. It concluded that, after benefits, the current net
cost involved in the provision of universal service in the UK was not proven and
did not justify setting up a universal service fund in the short-term. OFTEL
proposed, however, to amend BT's license so as to require BT to offer a "Life
line" service package which will be low cost, available to everyone and allow
incoming calls and emergency outgoing calls only. Amendments to BT's existing
"Low User Scheme" were also proposed together with an agreement with BT designed
to reduce the number of disconnections for debt. The proposals also included new
draft guidelines relating to the provision of public call boxes by BT, as well
as suggestions for special help for the elderly and disabled. OFTEL intends to
carry out a full review of universal service arrangements in the UK in 1999 and
modifications to BT's license to implement OFTEL's final proposals for universal
service (issued in July 1997) were made in November 1997. OFTEL has encouraged
all licensees to publish disconnection policies. Operators have also been
requested to publish disconnection statistics as part of the published
comparable performance indicators.
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The rates of other telecommunications companies, including the Operating
Companies, are not regulated by any UK Government entity, although conditions
prohibiting undue discrimination are commonly contained in telecommunications
licenses (including those held by the Operating Companies and BT). In September
1997, OFTEL completed a review of cable operators' Telecommunications Act
licenses and made several modifications. The purpose of the exercise was to
review the licenses in the light of the progressive introduction of "slimline"
PTO licenses and the modifications made to Mercury's PTO license in 1996. It
also took into account a number of important regulatory developments such as the
need to implement the package of modifications for fair trading and to ensure
comparability with LDO PTO licenses, and to remove unnecessary restrictions and
obligations.
Indirect and Equal Access. One advantage cable operators have maintained in
marketing their telephony services has been their ability to offer direct access
to the system of another operator (i.e. Mercury), whose long distance charges
have historically been less than those charged by BT. At present, in most areas,
the only way in which a residential BT customer can choose to route calls over
the Mercury trunk network is by purchasing a special telephone or using an
indirect access through which it is possible to select the Mercury network in
preference to the BT network. The stated policy of the UK Government in the
Duopoly Review was to introduce true equal access, whereby all local telephony
systems would have to offer access to each fixed link trunk system without
discrimination. BT's and Mercury's licenses have been amended to enable OFTEL to
require them to make available equal access, either by pre-selection or on a
call-by-call basis, subject to, among other things, a cost-benefit study
indicating that the gains to consumers will outweigh the likely costs. A
cost-benefit study was conducted and OFTEL has concluded that the study does not
justify introducing such equal access arrangements. Under existing licenses, a
cable operator would not generally be required by OFTEL to introduce equal
access until it had acquired a market share of 25% of local exchange lines. Many
cable operators opposed the equal access proposals in the Duopoly Review in this
respect because equal access would reduce one of the current attractions of a
cable operator's telephony system. BT's willingness, however, to offer cable
operators interconnection on competitive terms potentially will enable cable
operators to offer equal access benefits to their customers on attractive terms.
The timing and terms of the introduction of equal access is unclear. However,
OFTEL stated in July 1996 that it considers the "well established operator"
threshold of 25% of customer connections in a relevant market to be a useful
guide in determining whether a non-dominant operator should, in the future, be
required to grant indirect access to other operators. This threshold would not
automatically mean that the operator would be required to grant indirect access,
but OFTEL would investigate the issue further in respect of that operator once
that threshold was reached.
In January 1998, BT announced that it was to begin a technical trial in London
with a provider of indirect phone calls and a mobile telecommunications company
under which those companies would be able to use BT's network to serve their own
customers. BT will supply and maintain customer phone lines in the trial area
for the two operators, carrying out installation and maintenance and providing
records of the calls made on those lines for charging purposes. BT would charge
the operators for services provided and for calls. The two operators will use
the lines to sell phone calls and services to their customers, under their own
branding of the service. They will set their own prices for that service,
together with their own billing and customer services. Customers would no longer
receive a BT bill and a separate bill from the other independent operator;
instead they will now receive a single bill from the independent operator.
Depending on the outcome of the trial, BT has said that a full national service
could be launched in the middle of 1998.
The European Commission has finalized proposals for the introduction, by January
1, 2000, of equal access by telecommunication operators with "significant market
power." If adopted, an Equal Access Directive will require the introduction of
carrier pre-selection whereby subscribers can choose an alternative operator to
convey their long distance calls to the one providing their local connection and
calls.
Telephone Number Portability. Business and residential telecommunications
customers changing their telephone services to a cable company or another
telecommunications provider previously had to change their telephone numbers. BT
did not offer customers telephone number portability until 1996, although its
PTO license has required this, subject to certain preconditions, since 1991. As
a result, some business customers have used their cable company or
telecommunications provider lines primarily for outbound telephone calls and
maintained their BT lines for inbound calls.
BT's PTO license was modified in July 1996 to incorporate a condition which
supports the implementation of number portability and in January 1997, the
Director General determined BT's costs in providing number portability and the
charges it can make to other operators to recover those costs. BT has reached
agreement with several cable companies on number portability. The absence of
number portability was a significant impediment to competition in the
telecommunications market. Its implementation is providing BT's competitors with
access to greater numbers of customers. The number portability modifications
made to BT's license related to the portability of numbers at a particular
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geographic address. In April 1997, OFTEL consulted on modifications to the
licenses of BT and other operators to implement number portability of
non-geographic numbers (e.g., freefone, premium rate services, etc.). Commercial
terms for number portability are now included in the BT standard interconnect
agreement.
Other Recent Developments
In December 1996, OFTEL published a consultative document on the practical
regulation of conditional access services for digital television. OFTEL has five
key objectives:
(i) To ensure that the control of conditional access technology is not
used to distort, restrict or prevent competition. This would be of
significance where a conditional access service provider has an
associated programming supply business and is also providing
conditional access services to its competitors.
(ii) To ensure that control of conditional access technology does not lead
to consumer choice being artificially constrained in relation to
consumers' choice of equipment or the range of services available via
that equipment.
(iii)To facilitate consumers being able to access services on more than one
delivery mechanism or switch between delivery mechanisms, without
having to incur unnecessary additional expense.
(iv) To facilitate consumer choice by ensuring ease of access to
information about the range of services available and ease of
selection of those services.
(v) To ensure control of proprietary conditional access technology is not
exploited anti-competitively (e.g. by excessive pricing for the use of
that technology).
The guidelines set out the approach OFTEL will take in regulating conditional
access systems. This includes, in particular, enforcing the conditions of the
Conditional Access Service Class and the Advances Television Standard
Regulations (the "Regulations"), which both came into force in January 1997.
The Regulations include requirements on:
o The offer of technical conditional access services to broadcasters "on
a fair, reasonable and non-discriminatory basis."
o The licensing on fair, reasonable and non-discriminatory terms of
industrial property rights in conditional access technology to
manufacturers of consumer equipment. This would prevent licensors from
including in the license agreements conditions that would prohibit or
discourage manufacturers of consumer decoder units from including a
common interface allowing connection with other conditional access
systems or means specific to another conditional access system.
o The provision for cost-effective trans-control by cable operators.
In February 1997, OFTEL issued a statement containing proposed measures designed
to promote competition in services over telecommunications networks and
addressing a number of issues of particular relevance to independent service
providers ("ISPs"). The measures include an updated classification of BT's
systems (or network services) business ("SB") and supplemental services (or
enhanced services) business ("SSB") (the importance of which is that this
classification underpins the prices that BT charges itself since BT's SSB must
pay the same for BT's network services as any ISP is required to) and additional
information to be published in BT's financial statements with respect to the
split between its SB and SSB. BT is being allowed greater flexibility to offer
lower prices to ISPs in order to promote competitively priced services to all
levels (although access to cost-based interconnection prices is largely to be
limited to operators installing networks). ISPs are now becoming entitled to
allocations of numbering capacity without having to have individual
telecommunications licenses.
In July 1997, the DTI and OFTEL issued a joint consultation paper on the
extension of the UK conditional access regulatory regime to non-broadcast and
digital non-television services. In October 1997, OFTEL published for
consultation the principles that it proposed to use when examining the prices
proposed by a conditional access provider.
- 14 -
<PAGE>
International Facilities Liberalization
In June 1996, the DTI invited applications for licenses to install and operate
telecommunications systems for the provision of all types of telecommunications
services between the UK and the rest of the world.
Since December 1996, over 60 new international facilities licenses have been
issued marking the removal of one of the few remaining barriers to full
competition in the provisioning of infrastructure and services in the UK. On
January 1, 1998, full competition in most of the European Union was introduced.
EMPLOYEES
Comcast, through Comcast UK Cable Partners Consulting, Inc. ("Comcast
Consulting"), a wholly owned subsidiary of Comcast U.K. Holdings, Inc.
("Holdings"), which is an indirect, wholly owned subsidiary of Comcast, provides
all administrative services to the Company and provides all management and
consulting services to the Operating Companies that the Company is obligated to
provide.
As of December 31, 1997, Teesside, Birmingham Cable, Cable London and Cambridge
Cable had approximately 390, 650, 520 and 450 employees, respectively. The
Company believes that the Operating Companies' relationships with their
employees are good.
ITEM 2 PROPERTIES
The Company does not own or lease any significant real or personal property
other than through its interests in the Operating Companies.
The Operating Companies own their cable and telephony plant and equipment and
generally own or lease, under long-term leases, the head-end and switching node
sites. The Company believes that the Operating Companies' facilities are
adequate to serve their existing customers.
ITEM 3 LEGAL PROCEEDINGS
The Company is subject to legal proceedings and claims which arise in the
ordinary course of its business. In the opinion of management, the amount of
ultimate liability with respect to these actions will not materially affect the
financial position, results of operations or liquidity of the Company.
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders, through a solicitation
of proxies or otherwise, during the fourth quarter of the year ended December
31, 1997.
- 15 -
<PAGE>
PART II
ITEM 5 MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER
MATTERS
The Class A Common Shares of the Company are traded in the over-the-counter
market and are included on Nasdaq under the symbol CMCAF. There is no
established public trading market for the Class B Common Shares of the Company.
The Class B Common Shares are convertible, on a share for share basis, into
Class A Common Shares. The following table sets forth, for the indicated
periods, the high and low sale price range of the Class A Common Shares as
furnished by Nasdaq.
Class A
High Low
1997
First Quarter.................. $14 1/8 $9 3/4
Second Quarter................. 13 10 1/2
Third Quarter.................. 12 1/4 9 1/8
Fourth Quarter................. 12 1/8 8 3/4
1996
First Quarter.................. $14 1/4 $11 1/2
Second Quarter................. 14 1/4 11 7/8
Third Quarter.................. 13 7/8 9 5/8
Fourth Quarter................. 14 10
The Company does not anticipate paying any cash dividends on its common shares
for the foreseeable future (see Item 7 - "Management's Discussion and Analysis
of Financial Condition and Results of Operations - Liquidity and Capital
Resources"). The Company is prohibited from paying dividends on the Class B
Common Shares without also paying pro rata dividends on the Class A Common
Shares. The Company has not paid cash dividends since inception. The Company's
11.20% Senior Discount Debentures, due 2007 and issued in November 1995, contain
restrictive covenants which limit the Company's ability to pay dividends.
The Class A Common Shares and Class B Common Shares vote together. Each record
holder of Class A Common Shares is entitled to one vote per share and each
record holder of Class B Common Shares is entitled to ten votes per share. In
the election of directors, Class A Common Shares and Class B Common Shares do
not have cumulative voting rights.
As of February 28, 1998, there were 32 record holders of the Company's Class A
Common Shares. Holdings, through its ownership of the Company's Class B Common
Shares, controls 77.6% of the total voting power of all of the outstanding
shares of the Company.
- 16 -
<PAGE>
ITEM 6 SELECTED FINANCIAL AND OTHER DATA
The following selected consolidated financial data have been derived from and
should be read in conjunction with the consolidated financial statements and
notes thereto included in Part II Item 8 of this Form 10-K.
The Company (4)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
(In thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Service income.............................(UK Pound)55,603 (UK Pound)31,358 (UK Pound)1,530 (UK Pound) (UK Pound)
Consulting fee income ..................... 1,059 1,070 1,313 1,356 1,248
Operating loss ............................ (22,604) (24,553) (11,809) (2,824) (1,124)
Equity in net losses of affiliates ........ (21,359) (18,432) (23,677) (16,289) (13,143)
Net loss .................................. (67,356) (40,575) (28,962) (16,266) (13,183)
Net loss per share (1) .................... (1.34) (.84) (0.70) (0.54) (0.50)
Balance Sheet Data:
At year end:
Total assets ......................... 445,854 484,370 431,889 254,739 95,239
Noncurrent liabilities ............... 247,970 216,027 207,978 9,106
Contributed capital .................. 359,049 359,049 287,810 287,863 127,162
Accumulated deficit .................. (187,373) (120,017) (79,442) (50,480) (34,214)
Other Data:
Operating income (loss) before depreciation
and amortization (3) ................... 2,984 (7,853) (8,760) (1,596) (558)
</TABLE>
See Notes to Selected Financial and Other Data on page 20.
- 17 -
<PAGE>
Birmingham Cable - Selected Consolidated Financial and Other Data
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
(In thousands)
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Service income.............................(UK Pound)67,166 (UK Pound)52,472 (UK Pound)39,004 (UK Pound)27,505 (UK Pound)18,345
Operating loss ............................ (15,825) (11,694) (11,345) (9,674) (7,864)
Net loss .................................. (30,826) (20,378) (14,279) (9,293) (8,967)
Balance Sheet Data:
At year end:
Total assets ......................... 260,035 325,646 331,589 160,044 119,018
Noncurrent liabilities ............... 165,413 188,863 185,864 6,222 4,989
Other Data:
Operating income (loss) before depreciation
and amortization (3) ................. 10,602 7,996 3,110 25 (2,217)
</TABLE>
Cable London - Selected Consolidated Financial and Other Data
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
(In thousands)
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Service income.............................(UK Pound)52,816 (UK Pound)40,091 (UK Pound)30,277 (UK Pound)21,830 (UK Pound)14,403
Operating loss ............................ (12,711) (13,906) (13,808) (10,524) (9,863)
Net loss .................................. (25,168) (21,241) (17,675) (11,354) (11,304)
Balance Sheet Data:
At year end:
Total assets ......................... 195,693 170,123 136,450 104,994 85,648
Noncurrent liabilities ............... 173,038 60,831 73,772 27,659 21,118
Other Data:
Operating income (loss) before depreciation
and amortization (3) ................. 7,029 956 (2,961) (3,531) (5,869)
</TABLE>
Cambridge Cable - Selected Consolidated Financial and Other Data (4)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
(In thousands)
<S> <C> <C> <C> <C>
Statement of Operations Data:
Service income............................. (UK Pound)6,401 (UK Pound)20,585 (UK Pound)12,064 (UK Pound)3,571
Operating loss ............................ (2,133) (12,838) (8,807) (7,437)
Net loss .................................. (4,419) (20,398) (12,223) (7,930)
Balance Sheet Data:
At year end:
Total assets ......................... 118,885 99,275 56,799
Noncurrent liabilities ............... 109,662 74,916 22,163
Other Data:
Operating income (loss) before depreciation
and amortization (3) ................. 35 (5,688) (4,171) (4,770)
</TABLE>
See Notes to Selected Financial and Other Data on page 20.
- 18 -
<PAGE>
Operating Companies - Proportionate Combined Selected Consolidated Financial and
Other Data
The following proportionate combined selected consolidated financial and other
data have been derived from the consolidated financial statements of the
Company, Birmingham Cable and Cable London, after giving effect to the Company's
ownership interests in each of the Operating Companies as of December 31, 1997.
As of December 31, 1997, the Company had a 27.5% interest in Birmingham Cable, a
50.0% interest in Cable London, a 100% interest in Cambridge Cable and a 100%
interest in Teesside. The Company believes that presentation of proportionate
combined selected consolidated financial data, although not in accordance with
US Generally Accepted Accounting Principles ("GAAP"), facilitates the
understanding and assessment of its operating performance since the Company
accounts for its interests in Birmingham Cable and Cable London under the equity
method. Prior to March 31, 1996, the Company accounted for its interest in
Cambridge Cable under the equity method (see Note 4 to Selected Financial and
Other Data on page 20). Beginning on March 31, 1996, the financial position and
results of operations of Cambridge Cable were consolidated with those of the
Company (see Note 4 to the Company's consolidated financial statements). The
financial position and results of operations of Teesside are consolidated with
those of the Company.
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
(In thousands, except homes passed and subscriber information)
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Service income.....................(UK Pound)100,462 (UK Pound)72,061 (UK Pound)47,968 (UK Pound)30,535 (UK Pound)15,812
----------------- ---------------- ---------------- ---------------- ----------------
Operating, selling, general
and administrative expenses... 89,051 74,733 60,633 37,096 24,125
Depreciation and amortization ..... 41,593 30,571 18,924 10,840 6,215
----------------- ---------------- ---------------- ---------------- ----------------
Operating loss .................... (30,182) (33,243) (31,589) (17,401) (14,528)
----------------- ---------------- ---------------- ---------------- ----------------
Interest expense, net ............. 20,367 15,172 10,160 3,726 1,517
----------------- ---------------- ---------------- ---------------- ----------------
Operating Companies' proportionate
net loss ..................... (50,549) (48,415) (41,749) (21,127) (16,045)
Reconciliation to the Company's
consolidated net loss (2) .... (16,807) 7,840 12,787 4,861 2,862
----------------- ---------------- ---------------- ---------------- ----------------
Company's consolidated net loss....((UK Pound)67,356) ((UK Pound)40,575) ((UK Pound)28,962) ((UK Pound)16,266) ((UK Pound)13,183)
================= ================ ================ ================ ================
Other Data:
Operating income (loss) before
depreciation and amortization (3). (UK Pound)11,411 ((UK Pound)2,672) ((UK Pound)12,665) ((UK Pound)6,561) ((UK Pound)8,313)
Homes passed (5) .................. 695,786 547,942 395,635 263,837 179,000
Cable subscribers (6) ............. 171,863 140,207 101,997 72,453 46,269
Telephony subscribers (7) ......... 237,415 168,569 108,602 67,160 31,770
</TABLE>
See Notes to Selected Financial and Other Data on page 20.
- 19 -
<PAGE>
Notes to Selected Financial and Other Data
(1) For 1993 and 1994, net loss per share has been presented on a pro forma
basis as if the restructuring of the Company's equity in September 1994 and
the conversion of the redeemable convertible preference shares issued in
connection with the acquisition of Teesside were outstanding for all
periods presented.
(2) Includes the effects of differences between the Company's ownership
percentages in the Operating Companies during the relevant periods and its
ownership percentages as of December 31, 1997, as well as net income
(losses) of the Company and its subsidiaries, other than Teesside and
Cambridge (subsequent to March 31, 1996).
(3) Operating income (loss) before depreciation and amortization is commonly
referred to in the Company's businesses as "operating cash flow (deficit)."
Operating cash flow (deficit) is a measure of a company's ability to
generate cash to service its obligations, including debt service
obligations, and to finance capital and other expenditures. In part, due to
the capital intensive nature of the Company's businesses and the resulting
significant level of non-cash depreciation expense and amortization
expense, operating cash flow (deficit) is frequently used as one of the
bases for comparing businesses in the Company's industries, although the
Company's measure of operating cash flow (deficit) may not be comparable to
similarly titled measures of other companies. Operating cash flow (deficit)
does not purport to represent net income or net cash provided by operating
activities, as those terms are defined under generally accepted accounting
principles, and should not be considered as an alternative to such
measurements as an indicator of the Company's performance.
(4) As a result of the SingTel Transaction (see Note 4 to the Company's
consolidated financial statements), the Company owns 100% of Cambridge
Cable and has consolidated the financial position and results of operations
of Cambridge Cable beginning on March 31, 1996. The 1996 results of
operations information for Cambridge Cable is for the three months ended
March 31, 1996.
(5) A home is deemed "passed" if it can be connected to the distribution system
without further extension of the transmission lines.
(6) A dwelling with one or more television sets connected to the system is
counted as one Cable Subscriber.
(7) A dwelling with one or more telephone lines connected to the system is
counted as one Telephony Subscriber.
- 20 -
<PAGE>
ITEM 7 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Overview
Comcast UK Cable Partners Limited and its subsidiaries (the "Company"), an
indirect controlled subsidiary of Comcast Corporation ("Comcast") (see Item 5 -
"Market for the Registrant's Common Equity and Related Shareholder Matters"),
was incorporated in 1992 to develop, construct, manage and operate the interests
of Comcast in the United Kingdom ("UK") cable and telecommunications industry.
As of December 31, 1997, the Company has interests in four operations (the
"Operating Companies"): Birmingham Cable Corporation Limited ("Birmingham
Cable"), in which the Company owns a 27.5% interest, Cable London PLC ("Cable
London"), in which the Company owns a 50.0% interest, Cambridge Holding Company
Limited ("Cambridge Cable"), in which the Company owns a 100% interest and two
companies holding the franchises for Darlington and Teesside, England
("Teesside"), in which the Company owns a 100% interest. On December 8, 1997,
the Company formed Comcast UK Holdings Limited ("UK Holdings") (a wholly owned
subsidiary incorporated in Bermuda) in order to secure a financing arrangement
to primarily fund capital expenditures and working capital requirements at
Cambridge Cable and Teesside (see "Liquidity and Capital Resources" below).
When build-out of the Operating Companies' systems is complete, these systems
will have the potential to serve approximately 1.6 million homes and the
businesses within their franchise areas. As of December 31, 1997, the Operating
Companies' systems passed more than 1,197,000 homes or approximately 75% of the
homes in their franchise areas and served more than 298,000 cable subscribers,
359,000 residential telephony subscribers and 11,000 business telephony
subscribers.
The Company accounts for its interests in Birmingham Cable and Cable London
under the equity method. Through March 31, 1996, the Company also accounted for
its interest in Cambridge Cable under the equity method (see Note 4 to the
Company's consolidated financial statements). Collectively, Birmingham Cable,
Cable London and Cambridge Cable are referred to herein as the "Equity
Investees" (which term excludes Cambridge Cable as of and subsequent to March
31, 1996).
General Developments of Business
Amalgamation with NTL
See Item 1 - Business -- "General Developments of Business."
Liquidity and Capital Resources
The Company
Historically, the Company has financed its cash requirements, including its
investments in the Equity Investees, through capital contributions from its
shareholders, as well as with the proceeds from the Company's initial public
offering of 15.0 million of its Class A Common Shares (net proceeds of $209.4
million or (UK Pound)132.6 million) in September 1994 and from the Company's
offering of its $517.3 million principal amount at maturity 11.20% Senior
Discount Debentures due 2007 (the "2007 Discount Debentures") (net proceeds of
$291.1 million or (UK Pound)186.9 million) in November 1995. Interest accretes
on the 2007 Discount Debentures at 11.20% per annum compounded semi-annually
from November 15, 1995 to November 15, 2000, after which date interest will be
paid in cash on each May 15 and November 15 through November 15, 2007. The 2007
Discount Debentures contain restrictive covenants which limit the Company's
ability to pay dividends. The Operating Companies are not expected to pay any
dividends or advances in the foreseeable future.
On December 23, 1997, UK Holdings entered into a loan agreement (the "UK
Holdings Agreement") with a consortium of banks to provide financing under a
credit facility (the "UK Holdings Credit Facility") up to a maximum of (UK
Pound)200.0 million. Under the terms of the UK Holdings Agreement, borrowings
under the UK Holdings Credit Facility are guaranteed by Teesside and Cambridge
Cable (see "The Operating Companies - Cambridge Cable - Teesside").
On January 14, 1998, UK Holdings borrowed (UK Pound)75.0 million under Tranche A
of the UK Holdings Credit Facility. Of this initial borrowing, (UK Pound)50.4
million was paid to the Company as a dividend and (UK Pound)17.8 million was
used to fund capital expenditures and working capital requirements at Cambridge
Cable and Teesside.
- 21 -
<PAGE>
Amounts available under the UK Holdings Credit Facility will be reduced each
quarter in varying amounts beginning March 31, 2000 and continuing through
December 31, 2000. The UK Holdings Credit Facility bears interest at a rate per
annum equal to the London Interbank Offered Rate ("LIBOR") plus 1/2% to 2 1/4%.
The UK Holdings Credit Facility contains restrictive covenants which limit UK
Holdings' ability to enter into arrangements for the acquisition and sale of
property and equipment, investments, mergers and the incurrence of additional
debt. Certain of these covenants require that certain financial ratios and cash
flow levels be maintained and contain certain restrictions on dividend payments.
The Company's right to receive consulting fee payments from Cambridge Cable and
Teesside has been subordinated to the banks under the UK Holdings Credit
Facility. In addition, the Company's shares in UK Holdings have been pledged to
secure the UK Holdings Credit Facility.
The consummation of the NTL Transaction will result in a change in control, as
defined in the UK Holdings Credit Facility. Upon a change in control, all
amounts outstanding under the UK Holdings Credit Facility will become
immediately due and payable.
Except for its working capital requirements, the Company's cash needs will
depend on management's investment decisions. Investment considerations include
(i) whether further capital contributions will be made to the Equity Investees,
(ii) whether the Operating Companies can obtain debt financing, (iii) whether
the Operating Companies will be able to generate positive operating cash flow,
(iv) the timing of the build-out of the Operating Companies' systems, and (v)
whether there may be future acquisitions and trades funded in cash or Company
shares. There are no agreements or negotiations for specific material
acquisitions currently pending.
Historically, the Company has made investments in the Equity Investees in
conjunction with proportionate investments by its strategic and financial
partners. The Company made capital contributions and advances to the Operating
Companies in the aggregate of (UK Pound)91.1 million, (UK Pound)92.1 million and
(UK Pound)71.4 million during the years ended December 31, 1997, 1996 and 1995,
respectively. Of these amounts, (UK Pound)8.7 million, (UK Pound)10.7 million
and (UK Pound)25.2 million relate to capital contributions and advances to the
Equity Investees during the years ended December 31, 1997, 1996 and 1995,
respectively. Although the Company is not contractually committed to make any
additional capital contributions or advances to either of the Equity Investees,
it currently intends to fund its share of the amounts necessary for capital
expenditures and to finance operating deficits. Failure to do so could dilute
the Company's ownership interests in the Equity Investees.
The Company estimates that the Operating Companies will require approximately
(UK Pound)146.0 million in 1998 to continue the build-out of their systems.
Management believes that the entire (UK Pound)146.0 million required will be
funded through drawdowns under currently outstanding credit facilities (subject
to compliance with certain financial and operating covenants). If such credit
facilities are not available for drawdown, the Company expects that its
strategic and financial partners in the Equity Investees will provide their
pro-rata share of any required fundings, although they are not contractually
obligated to do so. Thus, no assurance of such funding can be given. If the
Company's strategic and financial partners fail to provide such financing, the
Equity Investees will be required to seek additional funds elsewhere. Such
additional funds may come from the Company, from new strategic and financial
partners, from borrowings under existing or new credit facilities or from other
sources, although there can be no assurance that any such financing would be
available on acceptable terms and conditions. The Company and its strategic and
financial partners generally have veto rights over the Equity Investees' debt
financing decisions. Failure of any Operating Company to obtain financing
necessary to complete the build-out of its system could result in loss of its
cable franchises and licenses.
The Company's ability to meet its long-term liquidity and capital requirements
is contingent upon the Operating Companies' ability to generate positive
operating cash flow and obtain external financing, although there can be no
assurance that any such financing will be obtained on acceptable terms and
conditions. The Company believes that its existing cash and cash equivalents
will be sufficient to fund the Company's required capital contributions and
advances to Birmingham Cable and Cable London and borrowings under the UK
Holdings Credit Facility will be sufficient to fund development and construction
costs for Cambridge Cable and Teesside throughout 1998.
The Company is exposed to market risk including changes in foreign currency
exchange rates. To manage the volatility relating to this exposure, the Company
enters into various derivative transactions pursuant to the Company's policies
in areas such as counterparty exposure and hedging practices. Positions are
monitored using techniques including market value and sensitivity analyses. The
Company does not hold or issue any derivative financial instruments for trading
purposes and is not a party to leveraged instruments. The credit risks
associated with the Company's derivative financial instruments are controlled
through the evaluation and monitoring of the creditworthiness of the
counterparties. Although
- 22 -
<PAGE>
the Company may be exposed to losses in the event of nonperformance by the
counterparties, the Company does not expect such losses, if any to be
significant.
The Company has entered into certain foreign exchange option contracts ("FX
Options") as a normal part of its foreign currency risk management efforts.
During 1995, the Company entered into certain foreign exchange put option
contracts ("FX Puts") which may be settled only on November 16, 2000. These FX
Puts are used to limit the Company's exposure to the risk that the eventual cash
outflows related to net monetary liabilities denominated in currencies other
than its functional currency (the UK Pound Sterling or "UK Pound") (principally
the 2007 Discount Debentures) are adversely affected by changes in exchange
rates. As of December 31, 1997 and 1996, the Company had (UK Pound)250.0 million
notional amount of FX Puts to purchase United States ("US") dollars at an
exchange rate of $1.35 per (UK Pound)1.00 (the "Ratio"). The FX Puts provide a
hedge, to the extent the exchange rate falls below the Ratio, against the
Company's net monetary liabilities denominated in US dollars since gains and
losses realized on the FX Puts are offset against foreign exchange gains or
losses realized on the underlying net liabilities. Premiums paid for the FX Puts
of (UK Pound)13.9 million are included in foreign exchange put options and other
in the Company's consolidated balance sheet, net of related amortization. These
premiums are being amortized over the terms of the related contracts of five
years. As of December 31, 1997 and 1996, the FX Puts had carrying values of (UK
Pound)8.0 million and (UK Pound)10.7 million, respectively. The estimated fair
value of the FX Puts was (UK Pound)3.2 million as of both December 31, 1997 and
1996. The difference between the carrying amount and the estimated fair value of
the FX Puts was not significant as of December 31, 1995.
In 1995, in order to reduce hedging costs, the Company sold foreign exchange
call option contracts ("FX Calls") to exchange (UK Pound)250.0 million notional
amount and received (UK Pound)3.4 million. These contracts may only be settled
on their expiration dates. Of these contracts, (UK Pound)200.0 million notional
amount, with an exchange ratio of $1.70 per (UK Pound)1.00, expired unexercised
in November 1996 while the remaining contract, with a (UK Pound)50.0 million
notional amount and an exchange ratio of $1.62 per (UK Pound)1.00, has a
settlement date in November 2000. In the fourth quarter of 1996, in order to
continue to reduce hedging costs, the Company sold additional FX Calls for (UK
Pound)2.1 million, to exchange (UK Pound)200.0 million notional amount at an
average exchange ratio of $1.75 per (UK Pound)1.00. These contracts expired
unexercised in the fourth quarter of 1997. The FX Calls are marked-to-market on
a current basis in the Company's consolidated statement of operations.
As of December 31, 1997 and 1996, the estimated fair value of the liabilities
related to the FX Calls, as recorded in the Company's consolidated balance
sheet, was (UK Pound)2.7 million and (UK Pound)7.2 million, respectively.
Changes in fair value between measurement dates relating to the FX Calls
resulted in exchange gains of (UK Pound)4.5 million during the year ended
December 31, 1997 and exchange losses of (UK Pound)1.3 million during the year
ended December 31, 1996 in the Company's consolidated statement of operations.
There were not significant exchange gains or losses relating to these contracts
for the year ended December 31, 1995.
The table set forth below summarizes the fair values and contract terms of
financial instruments, subject to foreign currency exchange rate risk,
maintained by the Company ((UK Pound) in millions):
<TABLE>
<CAPTION>
Expected Fair Value at
Maturity 2007 12/31/97
<S> <C> <C>
On Balance Sheet Financial Instruments
(UK Pound)UK Functional Currency:
Long-term debt (denominated in $US) at accreted value........... (UK Pound)229.2 (UK Pound)253.1
Average interest rate....................................... 11.20%
Expected Fair Value at
Maturity 2000 12/31/97 (1)
Foreign Exchange Rate Derivatives
(UK Pound)UK Functional Currency:
FX Puts
Contract amount............................................. (UK Pound)250.0 (UK Pound)3.2
Exchange rate ($US/(UK Pound)UK)............................ 1.35
FX Calls
Contract amount............................................. (UK Pound)50.0 ((UK Pound)2.7)
Exchange rate ($US/(UK Pound)UK)............................ 1.62
- ----------------
<FN>
(1) The estimated fair value approximates the proceeds (costs) to settle the
outstanding contracts.
</FN>
</TABLE>
- 23 -
<PAGE>
Year 2000 Issue
The Year 2000 Issue is the result of computer programs being written using two
digits rather than four to define the applicable year. Certain of the Company's
and the Operating Companies' computer programs that have date-sensitive software
may recognize a date using "00" as the year 1900 rather than the year 2000 (the
"Year 2000 Issue"). If this situation occurs, the potential exists for computer
system failure or miscalculations by computer programs, which could cause
disruption of operations.
Based on an inventory conducted in 1997, the Company and the Operating Companies
have identified computer systems that will require modification or replacement
so that they will properly utilize dates beyond December 31, 1999. The Company
presently believes that with modifications to existing software and conversions
to new software, the Year 2000 Issue can be mitigated. However, if such
modifications and conversions are not made, or are not completed within an
adequate time frame, the Year 2000 Issue could have a material impact on the
operations of the Company and/or the Operating Companies.
The Company and the Operating Companies have initiated communications with all
of their significant software suppliers and service bureaus to determine their
plans for remediating the Year 2000 Issue in their software which the Company or
the Operating Companies use or rely upon. The Company's estimate to complete the
remediation plan includes the estimated time associated with mitigating the Year
2000 Issue for third party software. However, there can be no guarantee that the
systems of other companies on which the Company or the Operating Companies rely
will be converted on a timely basis, or that a failure to convert by another
company would not have material adverse effect on the Company and/or the
Operating Companies.
The Company and the Operating Companies continue to use both internal and
external resources to reprogram or replace the software for Year 2000
modifications. Management of the Company will also continue to periodically
report the progress of its Year 2000 remediation plan to the Audit Committee of
the Company's board of directors. The Company and the Operating Companies plan
to complete the Year 2000 mitigation in 1999. The costs directly attributable to
the Year 2000 Issue are not expected to have a material effect on the Company's
or the Operating Companies' results of operations.
The costs of the project and the date on which the Company and the Operating
Companies plan to complete the Year 2000 modifications and replacements are
based on management's best estimates, which were derived using assumptions of
future events including the continued availability of resources and the
reliability of third party modification plans. However, there can be no
guarantee that these estimates will be achieved and actual results could differ
materially from those plans. Specific factors that might cause such material
differences include, but are not limited to, the availability and cost of
personnel with appropriate necessary skills, the ability to locate and correct
all relevant computer code and similar uncertainties.
The Operating Companies
The following is a discussion of the liquidity and capital resources of each of
the Operating Companies. Such financial information has not been adjusted for
the Company's proportionate ownership percentages in the Operating Companies.
Birmingham Cable. Historically, Birmingham Cable's primary sources of funding
have been capital contributions and loans from the Company and the Company's
strategic and financial partners, and cash from the issuance of Birmingham
Cable's preference shares (see below).
In February 1995, a subsidiary of Birmingham Cable issued 175,000 cumulative (UK
Pound)1.00 redeemable five year term preference shares for a paid up value of
(UK Pound)175.0 million. Also in February 1995, Birmingham Cable entered into a
(UK Pound)175.0 million five year revolving credit facility (the "Birmingham
Facility") which provided for conversion into a five year term loan on March 31,
2000. In March 1997, the terms of the Birmingham Facility were amended to extend
the maturity of the term loan to December 31, 2005 and to amend the required
cash flow levels (as defined) and certain other terms. Interest rates on the
Birmingham Facility are at LIBOR plus 5/8% to 2 1/4%.
In July 1997, the preference shareholder exercised its option to require
Birmingham Cable to purchase its shareholding. Birmingham Cable funded the
redemption of the preference shares with the proceeds from the Birmingham
Facility and restricted cash and settled its five year (UK Pound)175.0 million
interest rate exchange agreement with Barclays Bank PLC. The balance of the
Birmingham Facility will be used, subject to certain restrictions, for capital
expenditures and working capital requirements relating to the build-out of its
systems.
- 24 -
<PAGE>
The Birmingham Facility contains restrictive covenants which limit Birmingham
Cable's ability to enter into arrangements for the acquisition and sale of
property and equipment, investments, mergers and the incurrence of additional
debt. Certain of these covenants require that certain minimum build
requirements, financial ratios and cash flow levels be maintained and contain
restrictions on dividend payments. Birmingham Cable's three principal
shareholders' (including the Company) right to receive consulting fee payments
from Birmingham Cable has been subordinated to the banks under the Birmingham
Facility. The payment of consulting fees is restricted until Birmingham Cable
meets certain financial ratio tests under the Birmingham Facility. Birmingham
Cable has pledged the shares of its material subsidiaries to secure the
Birmingham Facility. Upon a change of control, all amounts due under the
Birmingham Facility become immediately due and payable. The consummation of the
NTL Transaction will not result in a change of control as defined in the
Birmingham Facility.
Birmingham Cable enters into interest rate exchange agreements ("Swaps") as a
normal part of its risk management efforts to limit its exposure to adverse
fluctuations in interest rates. Using Swaps, Birmingham Cable agrees to
exchange, at specified intervals, the difference between fixed and variable
interest amounts calculated by reference to an agreed upon notional amount. In
conjunction with the Birmingham Facility, a subsidiary of Birmingham Cable and
Barclays Bank PLC entered into a five year (UK Pound)175.0 million Swap, whereby
the subsidiary receives fixed interest at a rate of 8.83% and pays floating rate
interest at the six month LIBOR. The (UK Pound)175.0 million Swap was settled in
July 1997 along with redemption of the preference shares (see above). In
addition, a subsidiary of Birmingham Cable entered into a second series of five
year Swaps with three banks. Under the agreements, the subsidiary pays fixed
rate interest at 9.20% and receives floating rate interest at six month LIBOR,
based upon the outstanding notional amount of the Swaps. As of December 31, 1997
and 1996, the notional amount outstanding on the second series of Swaps was (UK
Pound)149.0 million and (UK Pound)106.0 million, respectively, and increased to
(UK Pound)160.0 million on January 2, 1998. While Swaps represent an integral
part of Birmingham Cable's interest rate risk management program, their
incremental effect on interest expense for the years ended December 31, 1997,
1996 and 1995 was not significant.
The Company estimates that approximately (UK Pound)22.0 million will be required
in 1998 to continue development and construction of Birmingham Cable's
cable/telephony network. The Company expects that such funds will be provided by
borrowings under the Birmingham Facility.
Cable London. Historically, Cable London's primary sources of funding have been
capital contributions and loans from the Company and the Company's strategic and
financial partner. In June 1995, Cable London entered into a (UK Pound)60.0
million revolving credit facility (the "London Facility") with various banks. In
April 1997, the amount available under the London Facility was increased to (UK
Pound)65.0 million. In May 1997, Cable London entered into a (UK Pound)170.0
million revolving credit facility (the "London Revolver") with various banks,
which converts into a five year term loan on June 30, 2001. Interest rates on
the London Revolver are at LIBOR plus 1/2% to 2 3/8%. In May 1997, Cable London
repaid all amounts outstanding under the London Facility with proceeds from
borrowings under the London Revolver. The balance of the London Revolver will be
used, subject to certain restrictions, for capital expenditures and working
capital requirements relating to the build-out of its systems.
The London Revolver contains restrictive covenants which limit Cable London's
ability to enter into arrangements for the acquisition and sale of property and
equipment, investments, mergers and the incurrence of additional debt. Certain
of these covenants require that certain financial ratios and cash flow levels be
maintained and contain certain restrictions on dividend payments. The Company's
right to receive consulting fee payments from Cable London has been subordinated
to the banks under the London Revolver. The payment of consulting fees is
restricted until Cable London meets certain financial ratio tests under the
London Revolver. In addition, the Company's shares in Cable London have been
pledged to secure the London Revolver. Upon a change of control, all amounts due
under the London Revolver become immediately due and payable. The consummation
of the NTL Transaction will not result in a change of control as defined in the
London Revolver.
Cable London enters into Swaps and interest rate collar agreements ("Collars")
as a normal part of its risk management efforts to limit its exposure to adverse
fluctuations in interest rates. Using Swaps, Cable London agrees to exchange, at
specified intervals, the difference between fixed and variable interest amounts
calculated by reference to an agreed upon notional amount. Collars limit Cable
London's exposure to and benefits from interest rate fluctuations on variable
rate debt to within a certain range of interest rates. In June 1997, Cable
London entered into a series of four year interest Swaps with three banks. Under
the agreements, Cable London pays fixed rate interest at 7.34% and receives
floating rate interest at three month LIBOR, based upon the outstanding notional
amount of the Swaps. As of December 31, 1997, the notional amount outstanding on
the Swaps was (UK Pound)44.5 million and increased to (UK Pound)49.5 million on
January 7, 1998. Also in June 1997, Cable London entered into a Collar which
limits the interest rate on the notional amount to between 6%
- 25 -
<PAGE>
and 9%. As of December 31, 1997, the notional amount outstanding on the Collar
was (UK Pound)22.3 million and increased to (UK Pound)24.8 million on January 7,
1998. While Swaps and Collars represent an integral part of Cable London's
interest rate risk management program, their incremental effect on interest
expense for the year ended December 31, 1997 was not significant.
The Company estimates that approximately (UK Pound)38.0 million will be required
in 1998 to continue development and construction of Cable London's
cable/telephony network. The Company expects that such funds will be provided by
borrowings under the London Revolver.
Cambridge Cable. Prior to the SingTel Transaction (see Note 4 to the Company's
consolidated financial statements), Cambridge Cable's primary sources of funding
have been capital contributions and loans from the Company and the Company's
strategic and financial partner. The Company estimates that approximately (UK
Pound)41.0 million will be required in 1998 to continue development and
construction of Cambridge Cable's cable/telephony network. The Company expects
that such funds will be provided by borrowings under the UK Holdings Credit
Facility.
Teesside. Historically, Teesside's primary source of funding has been capital
contributions from the Company. The Company estimates that approximately (UK
Pound)45.0 million will be required in 1998 to continue development and
construction of Teesside's cable/telephony network. The Company expects that
such funds will be provided by borrowings under the UK Holdings Credit Facility.
Statement of Cash Flows
Cash and cash equivalents decreased (UK Pound)25.9 million as of December 31,
1997 from December 31, 1996, decreased (UK Pound)98.9 million as of December 31,
1996 from December 31, 1995 and increased (UK Pound)62.1 million as of December
31, 1995 from December 31, 1994. Changes in cash and cash equivalents resulted
from cash flows from operating, financing and investing activities which are
explained below.
Net cash provided by (used in) operating activities amounted to (UK Pound)5.7
million, ((UK Pound)3.0) million and (UK Pound)491,000 for the years ended
December 31, 1997, 1996 and 1995, respectively. The change in net cash provided
by (used in) operating activities in 1997 as compared to 1996 is principally due
to the increase in the Company's operating income before depreciation and
amortization and changes in working capital as a result of the timing of
receipts and disbursements. The changes in net cash provided by (used in)
operating activities in 1996 and 1995 are due primarily to changes in working
capital as a result of the timing of receipts and disbursements.
Net cash (used in) provided by financing activities, which includes the
issuances of securities as well as borrowings, was ((UK Pound)1.6) million, (UK
Pound)414,000 and (UK Pound)176.0 million for the years ended December 31, 1997,
1996 and 1995, respectively. During 1995, the Company received proceeds of (UK
Pound)192.5 million in connection with its offering of the 2007 Discount
Debentures and paid premiums of (UK Pound)13.9 million in connection with the
purchase of the FX Puts.
Net cash used in investing activities was (UK Pound)30.0 million, (UK Pound)96.3
million and (UK Pound)114.3 million for the years ended December 31, 1997, 1996,
and 1995, respectively. During 1997, net cash used in investing activities
includes capital expenditures of (UK Pound)82.1 million and capital
contributions and loans to affiliates of (UK Pound)8.7 million, offset by
proceeds from the sales of short-term investments of (UK Pound)61.5 million.
During 1996, net cash used in investing activities includes the acquisition of
Cambridge Cable of (UK Pound)10.4 million, net of cash acquired, capital
expenditures of (UK Pound)70.6 million and capital contributions and loans to
affiliates of (UK Pound)10.7 million. During 1995, net cash used in investing
activities includes capital expenditures of (UK Pound)45.3 million, capital
contributions and loans to affiliates of (UK Pound)25.8 million and purchases of
short-term investments of (UK Pound)43.1 million.
- 26 -
<PAGE>
Results of Operations
The Company
Summarized consolidated financial information for the Company for the three
years ended December 31, 1997 is as follows (in thousands, "NM" denotes
percentage is not meaningful):
<TABLE>
<CAPTION>
Year Ended
December 31, Increase/(Decrease)
1997 1996 (UK Pound) %
<S> <C> <C> <C> <C>
Revenues (UK Pound)56,662 (UK Pound)32,428 (UK Pound)24,234 74.7%
Operating, selling, general and administrative expenses 50,474 37,284 13,190 35.4
Management fees 3,204 2,997 207 6.9
------------------ ------------------
Operating income (loss) before depreciation and
amortization (1) 2,984 (7,853) 10,837 NM
Depreciation and amortization 25,588 16,700 8,888 53.2
------------------ ------------------
Operating loss (22,604) (24,553) (1,949) (7.9)
------------------ ------------------
Interest expense 25,243 23,627 1,616 6.8
Investment income (7,259) (12,555) (5,296) (42.2)
Equity in net losses of affiliates 21,359 18,432 2,927 15.9
Exchange losses (gains) and other 5,409 (13,482) 18,891 NM
------------------ ------------------
Net loss ((UK Pound)67,356) ((UK Pound)40,575) (UK Pound)26,781 66.0%
================== ==================
Year Ended
December 31, Increase/(Decrease)
1996 1995 (UK Pound) %
Revenues (UK Pound)32,428 (UK Pound)2,843 (UK Pound)29,585 NM
Operating, selling, general and administrative expenses 37,284 8,498 28,786 NM
Management fees 2,997 3,105 (108) (3.5)
------------------ ------------------
Operating loss before depreciation and
amortization (1) (7,853) (8,760) (907) (10.4)
Depreciation and amortization 16,700 3,049 13,651 NM
------------------ ------------------
Operating loss (24,553) (11,809) 12,744 NM
------------------ ------------------
Interest expense 23,627 3,539 20,088 NM
Investment income (12,555) (11,758) 797 6.8
Equity in net losses of affiliates 18,432 23,677 (5,245) (22.2)
Exchange (gains) losses and other (13,482) 1,695 (15,177) NM
------------------ ------------------
Net loss ((UK Pound)40,575) ((UK Pound)28,962) (UK Pound)11,613 40.1%
================== ==================
<FN>
- ------------
(1) Operating income (loss) before depreciation and amortization is commonly
referred to in the Company's businesses as "operating cash flow (deficit)."
Operating cash flow (deficit) is a measure of a company's ability to
generate cash to service its obligations, including debt service
obligations, and to finance capital and other expenditures. In part due to
the capital intensive nature of the Company's businesses and the resulting
significant level of non-cash depreciation expense and amortization
expense, operating cash flow (deficit) is frequently used as one of the
bases for comparing businesses in the Company's industries, although the
Company's measure of operating cash flow (deficit) may not be comparable to
similarly titled measures of other companies. Operating cash flow (deficit)
does not purport to represent net income or net cash provided by operating
activities, as those terms are defined under generally accepted accounting
principles, and should not be considered as an alternative to such
measurements as an indicator of the Company's performance. See "Statement
of Cash Flows" above for a discussion of net cash provided by (used in)
operating activities.
</FN>
</TABLE>
The Company recognized net losses of (UK Pound)67.4 million, (UK Pound)40.6
million and (UK Pound)29.0 million for the years ended December 31, 1997, 1996
and 1995, respectively, representing increases of (UK Pound)26.8 million from
1996 to 1997 and (UK Pound)11.6 million from 1995 to 1996. The increase in the
Company's net loss from 1996 to 1997 is due to the effects of the SingTel
Transaction which resulted in the consolidation of the results of operations of
Cambridge Cable beginning on March 31, 1996, decreases in investment income due
to the effects of lower average cash, cash equivalents and short-term investment
- 27 -
<PAGE>
balances, the impact of fluctuations in the valuation of the UK Pound on the
2007 Discount Debentures, which are denominated in US Dollars, and the Company
recognizing its proportionate share of the Equity Investees' net losses. The
increase in the Company's net loss from 1995 to 1996 is due to interest expense
on the 2007 Discount Debentures, the effects of the continuing construction of
Teesside's cable/telephony network and the effects of the SingTel Transaction.
Substantially all of the increases in service income, operating expenses,
selling, general and administrative expenses, and depreciation and amortization
expense from 1996 to 1997 and 1995 to 1996 are attributable to the effects of
the SingTel Transaction and the effects of the continued development of
Teesside's and Cambridge Cable's operations and increased business activity
resulting from the growth in the number of subscribers in their respective
franchise areas.
Comcast U.K. Consulting, Inc. ("UK Consulting"), a wholly owned subsidiary of
the Company, earns consulting fee income under consulting agreements with the
Equity Investees. The consulting fee income is generally based on a percentage
of gross revenues or a fixed amount per dwelling unit in the Equity Investees'
franchise areas.
Management fee expense is incurred under agreements between the Company on the
one hand, and Comcast and Comcast UK Cable Partners Consulting, Inc. ("Comcast
Consulting"), an indirect wholly owned subsidiary of Comcast, on the other,
whereby Comcast and Comcast Consulting provide consulting services to the Equity
Investees on behalf of the Company and management services to the Company. Such
management fees are based on Comcast's and Comcast Consulting's cost of
providing such services.
Interest expense for the years ended December 31, 1997, 1996 and 1995 was (UK
Pound)25.2 million, (UK Pound)23.6 million and (UK Pound)3.5 million,
respectively, representing increases of (UK Pound)1.6 million from 1996 to 1997
and (UK Pound)20.1 million from 1995 to 1996. The increase from 1996 to 1997 is
primarily attributable to the compounding of interest on the 2007 Discount
Debentures and the effects of foreign currency exchange rate fluctuations. The
increase from 1995 to 1996 is primarily attributable to interest expense on the
2007 Discount Debentures issued in November 1995.
Investment income for the years ended December 31, 1997, 1996 and 1995 was (UK
Pound)7.3 million, (UK Pound)12.6 million and (UK Pound)11.8 million,
respectively, representing a decrease of (UK Pound)5.3 million from 1996 to 1997
and an increase of (UK Pound)797,000 from 1995 to 1996. The decrease from 1996
to 1997 is primarily attributable to decreases in the average cash, cash
equivalents and short-term investments balances held by the Company during 1997
as compared to 1996 and the effects of the SingTel Transaction. The increase
from 1995 to 1996 is primarily attributable to the increase in the average cash,
cash equivalents and short-term investments balances held by the Company during
1996 as compared to 1995, primarily as a result of the proceeds from the
offering of the 2007 Discount Debentures in November 1995 and the proceeds from
the Company's initial public offering in September 1994.
Equity in net losses of affiliates for the years ended December 31, 1997, 1996
and 1995 was (UK Pound)21.4 million, (UK Pound)18.4 million and (UK Pound)23.7
million, respectively, representing an increase of (UK Pound)3.0 million from
1996 to 1997 and a decrease of (UK Pound)5.3 million from 1995 to 1996. The
increase from 1996 to 1997 is attributable to increases in the net losses of
Birmingham Cable and Cable London, offset by the effects of the SingTel
Transaction. The decrease from 1995 to 1996 is attributable to the consolidation
of Cambridge Cable effective March 31, 1996, partially offset by the effects of
increases in the net losses of Birmingham Cable and Cable London.
Exchange losses (gains) and other for the years ended December 31, 1997, 1996
and 1995 were (UK Pound)5.4 million, ((UK Pound)13.5) million and (UK Pound)1.7
million, respectively, representing changes of (UK Pound)18.9 million from 1996
to 1997 and (UK Pound)15.2 million from 1995 to 1996. These changes primarily
result from the impact of fluctuations in the valuation of the UK Pound on the
2007 Discount Debentures, which are denominated in US Dollars, and on the
Company's FX Calls and on cash held in US Dollars. The Company's results of
operations will continue to be affected by exchange rate fluctuations.
- 28 -
<PAGE>
The Operating Companies
Summarized proportionate combined financial information for the Operating
Companies for the three years ended December 31, 1997 is as follows (in
thousands, "NM" denotes percentage is not meaningful):
<TABLE>
<CAPTION>
Year Ended
December 31, Increase/(Decrease)
1997 1996 (UK Pound) %
<S> <C> <C> <C> <C>
Service income (UK Pound)100,462 (UK Pound)72,061 (UK Pound)28,401 39.4%
Operating, selling, general and administrative
expenses 89,051 74,733 14,318 19.2
----------------- -----------------
Operating income (loss) before depreciation and
amortization (a) 11,411 (2,672) 14,083 NM
Depreciation and amortization 41,593 30,571 11,022 36.1
----------------- -----------------
Operating loss (30,182) (33,243) (3,061) (9.2)
----------------- -----------------
Interest expense 21,644 18,023 3,621 20.1
Investment income (1,277) (2,851) (1,574) (55.2)
----------------- -----------------
Net loss ((UK Pound)50,549) ((UK Pound)48,415) (UK Pound)2,134 4.4%
================= =================
Year Ended
December 31, Increase/(Decrease)
1996 1995 (UK Pound) %
Service income (UK Pound)72,061 (UK Pound)47,968 (UK Pound)24,093 50.2%
Operating, selling, general and administrative
expenses 74,733 60,633 14,100 23.3
----------------- -----------------
Operating loss before depreciation and
amortization (a) (2,672) (12,665) (9,993) (78.9)
Depreciation and amortization 30,571 18,924 11,647 61.5
----------------- -----------------
Operating loss (33,243) (31,589) 1,654 5.2
----------------- -----------------
Interest expense 18,023 13,807 4,216 30.5
Investment income (2,851) (3,647) (796) (21.8)
----------------- -----------------
Net loss ((UK Pound)48,415) ((UK Pound)41,749) (UK Pound)6,666 16.0%
================= =================
- -------------
<FN>
(a) - See Note (1) on page 27.
</FN>
</TABLE>
Due to the similar nature of their operations, the following discussion with
respect to the Operating Companies' results of operations for the years ended
December 31, 1997, 1996 and 1995 is based on their proportionate combined
results of operations. Such proportionate combined results of operations have
been derived from the financial statements of the Company and the Equity
Investees, after giving effect to the Company's ownership interests in each of
the Operating Companies as of December 31, 1997. The Company believes that
presentation of proportionate combined financial data, although not in
accordance with generally accepted accounting principles, facilitates the
understanding and assessment of its operating performance since the Company
accounts for its interests in Birmingham Cable, Cable London and Cambridge Cable
(through March 31, 1996) under the equity method. The results of operations of
Teesside and Cambridge Cable (subsequent to March 31, 1996) are consolidated
with those of the Company.
Proportionate combined service income was (UK Pound)100.5 million, (UK
Pound)72.1 million and (UK Pound)48.0 million for the years ended December 31,
1997, 1996 and 1995, respectively, representing increases of (UK Pound)28.4
million from 1996 to 1997 and (UK Pound)24.1 million from 1995 to 1996.
Substantially all of the growth in service income during these periods was due
to increases in the number of cable communications and telephony subscribers,
primarily as a result of additional homes passed. Approximately one-half of the
Operating Companies' service income for the years ended December 31, 1997, 1996
and 1995 is derived from monthly subscription charges and approximately one-half
of their service income for these periods is derived from usage charges.
Proportionate combined operating, selling, general and administrative expenses
were (UK Pound)89.0 million, (UK Pound)74.7 million and (UK Pound)60.6 million
for the years ended December 31, 1997, 1996 and 1995, respectively, representing
increases of (UK Pound)14.3 million from 1996 to 1997 and (UK Pound)14.1 million
from 1995 to 1996. Substantially all of the increases were attributable to the
continued development of Teesside's and Cambridge Cable's operations and
increased business activity resulting from the growth in the number of
subscribers and development of the Operating Companies' franchise areas.
- 29 -
<PAGE>
The Operating Companies account for costs and expenses applicable to the
construction and operation of their cable telecommunications systems under the
provisions of Statement of Financial Accounting Standards ("SFAS") No. 51,
"Financial Reporting by Cable Television Companies." Under SFAS No. 51, during
the period while a system is partially under construction and partially in
service (the "Prematurity Period"), costs of telecommunications plant, including
materials, direct labor and construction overhead are capitalized.
Subscriber-related costs and general and administrative costs are expensed as
incurred. Costs incurred in anticipation of servicing a fully operating system
that will not vary regardless of the number of subscribers are partially
expensed and partially capitalized based upon the percentage of average actual
or estimated subscribers, whichever is greater, to the total number of
subscribers expected at the end of the Prematurity Period (the "Fraction").
During the Prematurity Period, depreciation and amortization of system assets is
determined by multiplying the depreciation and amortization of the total
capitalized system assets expected at the end of the Prematurity Period by the
Fraction. At the end of the Prematurity Period, depreciation and amortization of
system assets is based on the remaining undepreciated cost at that date.
Proportionate combined depreciation and amortization expense was (UK Pound)41.6
million, (UK Pound)30.6 million and (UK Pound)18.9 million for the years ended
December 31, 1997, 1996 and 1995, respectively, representing increases of (UK
Pound)11.0 million from 1996 to 1997 and (UK Pound)11.7 million from 1995 to
1996. These increases were due to certain of the Operating Companies' discrete
build areas ending their Prematurity Periods as set out under SFAS No. 51, as
well as an increase in the percentage used to calculate depreciation expense as
a result of an increased number of subscribers in those discrete franchise areas
remaining in their Prematurity Period.
Proportionate combined interest expense was (UK Pound)21.6 million, (UK
Pound)18.0 million and (UK Pound)13.8 million for the years ended December 31,
1997, 1996 and 1995, respectively, representing increases of (UK Pound)3.6
million from 1996 to 1997 and (UK Pound)4.2 million from 1995 to 1996. The
increases were primarily attributable to additional loans from shareholders and
borrowings under credit facilities.
Proportionate combined investment income was (UK Pound)1.3 million, (UK
Pound)2.9 million and (UK Pound)3.6 million for the years ended December 31,
1997, 1996 and 1995, respectively, representing decreases of (UK Pound)1.6
million from 1996 to 1997 and (UK Pound)796,000 from 1995 to 1996. The decreases
were attributable to a decrease in the average cash, cash equivalents and
restricted cash balances held by the Operating Companies during the respective
periods.
- 30 -
<PAGE>
ITEM 8 FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEPENDENT AUDITORS' REPORT
Board of Directors and Shareholders
Comcast UK Cable Partners Limited
We have audited the accompanying consolidated balance sheet of Comcast UK Cable
Partners Limited (a company incorporated in Bermuda) and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements of
operations, shareholders' equity and of cash flows for each of the three years
in the period ended December 31, 1997. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Comcast UK Cable Partners Limited
and subsidiaries as of December 31, 1997 and 1996, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1997 in conformity with accounting principles generally accepted in
the United States of America.
Deloitte & Touche LLP
Philadelphia, Pennsylvania
February 27, 1998
- 31 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(in (UK Pound)000's, except share data)
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents ..................................(UK Pound)37,372 (UK Pound)63,314
Short-term investments ..................................... 61,466
Accounts receivable, less allowance for doubtful accounts
of (UK Pound)2,598 and (UK Pound)1,338 .................. 4,255 2,922
Other current assets ....................................... 5,419 5,359
----------------- -----------------
Total current assets .................................... 47,046 133,061
----------------- -----------------
INVESTMENTS IN AFFILIATES ...................................... 61,363 69,472
----------------- -----------------
PROPERTY AND EQUIPMENT ......................................... 315,702 232,112
Accumulated depreciation ................................... (33,000) (13,765)
----------------- -----------------
Property and equipment, net ................................ 282,702 218,347
----------------- -----------------
DEFERRED CHARGES ............................................... 60,770 60,867
Accumulated amortization ................................... (13,985) (8,379)
----------------- -----------------
Deferred charges, net ...................................... 46,785 52,488
----------------- -----------------
FOREIGN EXCHANGE PUT OPTIONS AND OTHER, net .................... 7,958 11,002
----------------- -----------------
(UK Pound)445,854 (UK Pound)484,370
================= =================
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable and accrued expenses ......................(UK Pound)23,605 (UK Pound)23,086
Current portion of long-term debt .......................... 1,683 1,463
Foreign exchange call options .............................. 4,086
Due to affiliates .......................................... 920 676
----------------- -----------------
Total current liabilities ............................... 26,208 29,311
----------------- -----------------
LONG-TERM DEBT, less current portion ........................... 234,010 202,626
----------------- -----------------
FOREIGN EXCHANGE CALL OPTIONS .................................. 2,688 3,079
----------------- -----------------
LONG-TERM DEBT, due to shareholder ............................. 11,272 10,322
----------------- -----------------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY
Preferred shares, (UK Pound).01 par value - authorized,
10,000,000 shares; issued none
Class A common shares, (UK Pound).01 par value - authorized,
50,000,000 shares; issued, 37,231,997 ................... 372 372
Class B common shares, (UK Pound).01 par value - authorized,
50,000,000 shares; issued, 12,872,605 .................. 129 129
Additional capital ......................................... 358,548 358,548
Accumulated deficit ........................................ (187,373) (120,017)
----------------- -----------------
Total shareholders' equity .............................. 171,676 239,032
----------------- -----------------
(UK Pound)445,854 (UK Pound)484,370
================= =================
</TABLE>
See notes to consolidated financial statements
- 32 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
(Amounts in (UK Pound)000's, except per share data)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
REVENUES
<S> <C> <C> <C>
Service income......................................... (UK Pound)55,603 (UK Pound)31,358 (UK Pound)1,530
Consulting fee income.................................. 1,059 1,070 1,313
---------------- ---------------- ---------------
56,662 32,428 2,843
---------------- ---------------- ---------------
COSTS AND EXPENSES
Operating.............................................. 19,624 12,211 683
Selling, general and administrative.................... 30,850 25,073 7,815
Management fees........................................ 3,204 2,997 3,105
Depreciation and amortization.......................... 25,588 16,700 3,049
---------------- ---------------- ---------------
79,266 56,981 14,652
---------------- ---------------- ---------------
OPERATING LOSS............................................ (22,604) (24,553) (11,809)
OTHER (INCOME) EXPENSE
Interest expense....................................... 25,243 23,627 3,539
Investment income...................................... (7,259) (12,555) (11,758)
Equity in net losses of affiliates..................... 21,359 18,432 23,677
Exchange losses (gains) and other...................... 5,409 (13,482) 1,695
---------------- ---------------- ---------------
44,752 16,022 17,153
---------------- ---------------- ---------------
NET LOSS..................................................((UK Pound)67,356) ((UK Pound)40,575) ((UK Pound)28,962)
================= ================= =================
NET LOSS PER SHARE........................................ ((UK Pound)1.34) ((UK Pound).84) ((UK Pound).70)
================= ================= =================
WEIGHTED AVERAGE NUMBER OF COMMON SHARES
OUTSTANDING............................................ 50,105 48,216 41,245
================= ================= =================
</TABLE>
See notes to consolidated financial statements.
- 33 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net loss...............................................((UK Pound)67,356) ((UK Pound)40,575) ((UK Pound)28,962)
Adjustments to reconcile net loss to net cash provided
by (used in) operating activities:
Depreciation and amortization........................ 25,588 16,700 3,049
Amortization on foreign exchange contracts........... 2,770 2,752 (75)
Non-cash interest expense............................ 24,684 23,209 3,539
Non-cash investment income........................... (2,521) (2,854) (5,016)
Exchange losses (gains).............................. 2,852 (18,857) 944
Equity in net losses of affiliates................... 21,359 18,432 23,677
Other................................................ 991 (199) 619
----------------- ----------------- -----------------
8,367 (1,392) (2,225)
Increase in accounts receivable, other
current assets and other........................... (3,447) (1,154) (2,658)
Increase in accounts payable and accrued expenses.... 519 1,045 10,002
Increase (decrease) in due to affiliates............. 244 (1,548) (4,628)
----------------- ----------------- -----------------
Net cash provided by (used in) operating
activities................................ 5,683 (3,049) 491
----------------- ----------------- -----------------
FINANCING ACTIVITIES
Proceeds from borrowings............................... 192,542
Repayments of debt..................................... (1,633) (1,711)
Debt acquisition costs................................. (6,089)
Purchase of foreign exchange put options............... (13,855)
Proceeds from sales of foreign exchange call options... 2,125 3,415
Other.................................................. (53)
----------------- ----------------- -----------------
Net cash (used in) provided by financing
activities................................ (1,633) 414 175,960
----------------- ----------------- -----------------
INVESTING ACTIVITIES
Acquisition, net of cash acquired...................... (10,373)
Proceeds from sales (purchases) of short-term
investments, net..................................... 61,466 (4,226) (43,141)
Capital contributions and loans to affiliates.......... (8,713) (10,667) (25,829)
Capital expenditures................................... (82,125) (70,624) (45,308)
Additions to deferred charges.......................... (620) (392) (59)
----------------- ----------------- -----------------
Net cash used in investing activities............ (29,992) (96,282) (114,337)
----------------- ----------------- -----------------
(DECREASE) INCREASE IN CASH AND CASH
EQUIVALENTS............................................ (25,942) (98,917) 62,114
CASH AND CASH EQUIVALENTS, beginning of year.............. 63,314 162,231 100,117
----------------- ----------------- -----------------
CASH AND CASH EQUIVALENTS, end of year.................... (UK Pound)37,372 (UK Pound)63,314 (UK Pound)162,231
================= ================= =================
</TABLE>
See notes to consolidated financial statements.
- 34 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(in thousands)
<TABLE>
<CAPTION>
A Common B Common Additional Accumulated
Shares Amount Shares Amount Capital Deficit Total
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1995...... 28,372 (UK Pound)284 12,873 (UK Pound)129 (UK Pound)287,450 ((UK Pound)50,480)(UK Pound)237,383
Net loss.................... (28,962) (28,962)
Other....................... (53) (53)
------ ------------- ------ ------------- ----------------- ----------------- ----------------
BALANCE, DECEMBER 31, 1995.... 28,372 284 12,873 129 287,397 (79,442) 208,368
Net loss.................... (40,575) (40,575)
Shares issued in connection
with SingTel Transaction.. 8,860 88 71,151 71,239
------ ------------- ------ ------------- ----------------- ----------------- ----------------
BALANCE, DECEMBER 31, 1996.... 37,232 372 12,873 129 358,548 (120,017) 239,032
Net loss.................... (67,356) (67,356)
------ ------------- ------ ------------- ----------------- ----------------- ----------------
BALANCE, DECEMBER 31, 1997.... 37,232 (UK Pound)372 12,873 (UK Pound)129 (UK Pound)358,548 ((UK Pound)187,373)(UK Pound)171,676
====== ============= ====== ============= ================= ================= ================
</TABLE>
See notes to consolidated financial statements.
- 35 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
1. BUSINESS
Comcast UK Cable Partners Limited and subsidiaries (the "Company"), a
Bermuda company incorporated in 1992, was formed to develop, construct,
manage and operate the interests of Comcast Corporation ("Comcast") in the
United Kingdom ("UK") cable and telecommunications industry. The Company is
a controlled subsidiary of Comcast U.K. Holdings, Inc. ("Holdings"), a
Delaware corporation indirectly wholly owned by Comcast. As of December 31,
1997, the Company has interests in four operations (the "Operating
Companies"): Birmingham Cable Corporation Limited ("Birmingham Cable"), in
which the Company owns a 27.5% interest, Cable London PLC ("Cable London"),
in which the Company owns a 50.0% interest, Cambridge Holding Company
Limited ("Cambridge Cable"), in which the Company owns a 100% interest and
two companies holding the franchises for Darlington and Teesside, England
("Teesside"), in which the Company owns a 100% interest. The Company also
owns a 100% interest in Comcast UK Holdings Limited ("UK Holdings"), a
company incorporated in Bermuda in December 1997.
On February 4, 1998, the Company entered into a definitive agreement to
amalgamate (the "NTL Transaction") with a wholly owned Bermuda subsidiary
of NTL Incorporated ("NTL"). NTL is an alternative telecommunications
company in the UK and is listed on Nasdaq. The NTL Transaction is expected
to close in 1998, subject to, among other things, the receipt of required
Bermuda and UK regulatory approvals, the approval of the Company's and
NTL's shareholders, the consent of the Company's and NTL's bondholders, the
consent of certain NTL bank lenders and other customary closing matters.
Comcast, through Holdings, is the sole holder of the multiple-voting Class
B Common Shares of the Company and has agreed to vote for the transaction,
assuring its approval by the Company's shareholders. Upon consummation of
the NTL Transaction, the Company would become a wholly owned subsidiary of
NTL.
Except in the circumstances described below, the Company's shareholders
will receive 0.3745 shares of NTL common stock for each of the Company's
Class A Common Shares or Class B Common Shares. If the average closing
price of the NTL common stock for a specified period of time prior to the
Company's shareholders meeting to approve the NTL Transaction (the "Average
Price") is less than $26.70, the Company will have the option to terminate
the NTL Transaction, subject to the right of NTL to adjust the exchange
ratio such that one share of the Company's Class A Common Shares or Class B
Common Shares will be exchanged for a number of shares of NTL common stock
equal to $10.00 (based on the Average Price).
Pursuant to existing arrangements between the Company and Telewest
Communications plc ("Telewest"), a co-owner of interests in Cable London
and Birmingham Cable, Telewest has certain rights (the "Telewest Rights")
to acquire either or both of the Company's interests in these systems as a
result of the NTL Transaction. However, as described in the following
paragraphs, the consummation of the NTL Transaction is not dependent on the
resolution of the Telewest Rights.
If the Telewest Rights have been exercised prior to the closing of the NTL
Transaction, the Company's shareholders may receive (at the option of NTL),
in lieu of a portion of the consideration allocable to the interest subject
to the exercised Telewest Rights, the per share proceeds from the sale of
the interest to Telewest (net of taxes on gain on sale), payable in cash or
shares of NTL common stock valued at the greater of $30.00 per share or the
Average Price at closing (the "Exercise Consideration").
Similarly, if at closing either of the Telewest Rights have not been
exercised and have not been waived or otherwise expired, the Company's
shareholders may receive (at the option of NTL), shares of a new class of
NTL preferred stock equal to a portion of the consideration allocable to
the interest subject to the unexercised Telewest Rights. Any shares of NTL
preferred stock would have the same voting and dividend rights as shares of
NTL common stock, would be subject to redemption as described below, and
would be expected to be listed for trading on Nasdaq. If following closing
the Telewest Rights are exercised, the NTL preferred stock will be redeemed
for the Exercise Consideration (based on the Average Price at the time of
exercise). If the Telewest Rights are resolved without being exercised, the
NTL preferred stock will be redeemed for NTL common stock on a one-for-one
basis.
- 36 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Of the consideration to be received by the Company's shareholders in the
NTL Transaction, the parties have allocated 31% to the Company's interest
in Cable London and 17% to the Company's interest in Birmingham Cable.
However, if either or both of the Telewest Rights are exercised, the actual
consideration to be received by the Company's shareholders may be
materially different from the portion of the consideration (the "allocable
portion") which has been allocated by the parties to the Company's
respective interests in Cable London and Birmingham Cable, depending on,
among other things, the value of these interests, as finally determined,
whether NTL exercises its option to deliver the Exercise Consideration in
lieu of the allocable portion and, the amount of any taxes payable by the
Company on the sale of these interests.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Accounting
Subsidiaries of the Company maintain their books and records in accordance
with accounting principles generally accepted in the UK. The consolidated
financial statements have been prepared in accordance with generally
accepted accounting principles as practiced in the United States ("US") and
are stated in UK pounds sterling ("UK Pound"). There were no significant
differences between accounting principles followed for UK purposes and
generally accepted accounting principles practiced in the US. The UK Pound
exchange rate as of December 31, 1997 and 1996 was US $1.65 and US $1.71,
respectively.
Basis of Consolidation
The consolidated financial statements include the accounts of the Company
and all wholly owned subsidiaries. All significant intercompany accounts
and transactions among the consolidated entities have been eliminated.
Management's Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Fair Values
The estimated fair value amounts presented in these notes to consolidated
financial statements have been determined by the Company using available
market information and appropriate methodologies. However, considerable
judgment is required in interpreting market data to develop the estimates
of fair value. The estimates presented herein are not necessarily
indicative of the amounts that the Company could realize in a current
market exchange. The use of different market assumptions and/or estimation
methodologies may have a material effect on the estimated fair value
amounts. Such fair value estimates are based on pertinent information
available to management as of December 31, 1997 and 1996, and have not been
comprehensively revalued for purposes of these consolidated financial
statements since such dates. A reasonable estimate of the amounts due to
affiliates and long-term debt due to shareholder is not practicable to
obtain because of the related party nature of these items and the lack of
quoted market prices.
Cash Equivalents and Short-term Investments
Cash equivalents consist principally of commercial paper, time deposits and
money market funds with maturities of three months or less when purchased.
Short-term investments as of December 31, 1996 consist principally of
commercial paper and corporate floating rate notes with maturities greater
than three months when purchased. The carrying amounts of the Company's
cash equivalents and short-term investments, classified as available for
sale securities, approximate their fair values.
Investments in Affiliates
Investments in entities in which the Company has the ability to exercise
significant influence over the operating and financial policies of the
investee are accounted for under the equity method. Equity method
investments are recorded at original cost and adjusted periodically to
recognize the Company's proportionate share of the investees' net income or
losses after the date of investment, additional contributions made and
dividends received. The differences between the Company's recorded
investments and its proportionate interests in the book value of the
investees' net
- 37 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
assets are being amortized to equity in net losses of affiliates over the
remaining original lives of the related franchises of eight years.
Prematurity Period
The Company accounts for costs, expenses and revenues applicable to the
construction and operation of its cable telecommunications systems in
Teesside and Cambridge Cable under the provisions of Statement of Financial
Accounting Standards ("SFAS") No. 51, "Financial Reporting by Cable
Television Companies."
Under SFAS No. 51, during the period while the systems are partially under
construction and partially in service (the "Prematurity Period"), costs of
cable telecommunications plant, including materials, direct labor and
construction overhead are capitalized. Subscriber-related costs and general
and administrative costs are expensed as incurred. Costs incurred in
anticipation of servicing a fully operating system that will not vary
regardless of the number of subscribers are partially expensed and
partially capitalized, based upon the percentage of average actual or
estimated subscribers, whichever is greater, to the total number of
subscribers expected at the end of the Prematurity Period (the "Fraction").
During the Prematurity Period, depreciation and amortization of system
assets is determined by multiplying the depreciation and amortization of
the total capitalized system assets expected at the end of the Prematurity
Period by the Fraction. At the end of the Prematurity Period, depreciation
and amortization of system assets is based on the remaining undepreciated
cost at that date.
As of December 31, 1997, two of the Company's five franchise areas which
are under construction have completed their Prematurity Period. The
remaining Prematurity Periods are expected to terminate at various dates in
1998 and 1999.
Property and Equipment
Property and equipment, which consists principally of system assets, is
shown at historical cost less accumulated depreciation. Improvements that
extend asset lives are capitalized; other repairs and maintenance charges
are expensed as incurred. The cost and related accumulated depreciation
applicable to assets sold or retired are removed from the accounts and the
gain or loss on disposition is recognized as a component of depreciation
expense.
System assets
Prior to the Prematurity Period, no depreciation is provided on system
assets. During the Prematurity Period, depreciation is provided in
accordance with SFAS No. 51.
Depreciation of system assets is provided by the straight-line method over
estimated useful lives as follows:
Plant 15-40 years
Network 15 years
Subscriber equipment 6-10 years
Switch 10 years
Computers 4 years
Non-system assets
Depreciation of non-system assets is provided by the straight-line method
over estimated useful lives as follows:
Buildings 40 years
Fixtures, fittings and equipment 5 years
Vehicles 4 years
Computers 4 years
- 38 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Leased Assets
Assets held under capital leases are treated as if they had been purchased
outright and the corresponding liability is included in long-term debt.
Capital lease payments include principal and interest, with the interest
portion being expensed. Payments on operating leases are expensed on a
straight-line basis over the lease term.
Deferred Charges
Deferred charges consist primarily of franchise acquisition costs
attributable to obtaining, developing and maintaining the franchise
licenses of Teesside and Cambridge Cable, debt acquisition costs relating
to the sale of approximately $517.3 million principal amount at maturity of
the Company's 11.20% Senior Discount Debentures Due 2007 (the "2007
Discount Debentures" - see Note 7) and goodwill arising from the SingTel
Transaction (see Note 4). Franchise acquisition costs are being amortized
on a straight-line basis over the remaining original lives of the related
franchises of 12 to 15 years. Debt acquisition costs are being amortized on
a straight-line basis over the term of the 2007 Discount Debentures of 12
years. Goodwill is being amortized on a straight-line basis over the
remaining original lives of the related franchises of 11 years.
Valuation of Long-Lived Assets
The Company periodically evaluates the recoverability of its long-lived
assets, including property and equipment and deferred charges, using
objective methodologies. Such methodologies include evaluations based on
the cash flows generated by the underlying assets or other determinants of
fair value.
Revenue Recognition
Service income is recognized as service is provided. Credit risk is managed
by disconnecting services to subscribers who are delinquent.
Stock-Based Compensation
Effective January 1, 1996, the Company adopted the provisions of SFAS No.
123, "Accounting for Stock-Based Compensation," which encourages, but does
not require, companies to record compensation cost for stock-based
compensation plans at fair value. The Company has elected to continue to
account for stock-based compensation in accordance with Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees," and related interpretations, as permitted by SFAS No. 123.
Compensation expense for stock options is measured as the excess, if any,
of the quoted market price of the Company's stock at the date of grant over
the amount an employee must pay to acquire the stock. Compensation expense
for stock appreciation rights is recorded annually based on changes in
quoted market prices of the Company's stock or other determinants of fair
value at the end of the year (see Note 8).
Income Taxes
The Company is exempt from US federal, state and local income taxes. At the
present time, no income, profit, capital or capital gains taxes are levied
in Bermuda and, accordingly, no provision for such taxes has been recorded
by the Company. In the event that such taxes are levied, the Company has
received an undertaking from the Bermuda Government exempting it from all
such taxes until March 2016.
The Company's wholly owned subsidiaries recognize deferred tax assets and
liabilities for temporary differences between the financial reporting basis
and the tax basis of their assets and liabilities and expected benefits of
utilizing net operating loss carryforwards. The impact on deferred taxes of
changes in tax rates and laws, if any, applied to the years during which
temporary differences are expected to be settled, are reflected in the
financial statements in the period of enactment.
Derivative Financial Instruments
The Company uses derivative financial instruments, principally foreign
exchange option contracts ("FX Options"), to manage its exposure to
fluctuations in foreign currency exchange rates. Written FX Options are
marked-to-market on a current basis in the Company's consolidated statement
of operations (see Note 6).
- 39 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Those instruments that have been entered into by the Company to hedge
exposure to foreign currency exchange rate risks are periodically examined
by the Company to ensure that the instruments are matched with underlying
liabilities, reduce the Company's risks relating to foreign currency
exchange rates, and, through market value and sensitivity analysis,
maintain a high correlation to the underlying value of the hedged item. For
those instruments that do not meet the above criteria, variations in their
fair value are marked-to-market on a current basis in the Company's
consolidated statement of operations.
The Company does not hold or issue any derivative financial instruments for
trading purposes and is not a party to leveraged instruments (see Notes 6
and 7). The credit risks associated with the Company's derivative financial
instruments are controlled through the evaluation and monitoring of the
creditworthiness of the counterparties. Although the Company may be exposed
to losses in the event of nonperformance by the counterparties, the Company
does not expect such losses, if any, to be significant.
Net Loss Per Share
In February 1997, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 128, "Earnings per Share," which was adopted by the Company
effective for the year ended December 31, 1997, as required by the
statement. For the years ended December 31, 1997, 1996 and 1995, the
Company's potential common shares have an antidilutive effect on the loss
per share and, therefore, have not been used in determining the total
weighted average number of common shares outstanding. Diluted loss per
share for 1997, 1996 and 1995 is antidilutive and, therefore, has not been
presented.
Reclassifications
Certain reclassifications have been made to the prior years' consolidated
financial statements to conform to those classifications used in 1997.
3. TEESSIDE ACQUISITION
In June 1994, the Company acquired all of the outstanding shares of two
companies that owned Teesside, which comprise an area containing
approximately 254,000 homes. The construction of Teesside's cable
telecommunications network commenced in the third quarter of 1994. Teesside
added its initial cable and telephony subscribers in June 1995.
4. SINGTEL TRANSACTION
In March 1996, the Company completed the acquisition (the "SingTel
Transaction") of Singapore Telecom International Pte. Limited's ("Singapore
Telecom") 50% interest in Cambridge Cable, pursuant to the terms of a Share
Exchange Agreement executed by the parties in December 1995. In exchange
for Singapore Telecom's 50% interest in Cambridge Cable and certain loans
made to Cambridge Cable, with accrued interest thereon, the Company issued
approximately 8.9 million of its Class A Common Shares and paid
approximately (UK Pound)11.8 million to Singapore Telecom. The Company
accounted for the SingTel Transaction under the purchase method. As a
result of the SingTel Transaction, the Company owns 100% of Cambridge Cable
and Cambridge Cable was consolidated with the Company effective March 31,
1996.
- 40 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
The following unaudited pro forma information for the years ended December
31, 1996 and 1995 has been presented as if the SingTel Transaction had
occurred on January 1, 1995. This unaudited pro forma information is based
on historical results of operations adjusted for acquisition costs and, in
the opinion of management, is not necessarily indicative of what results
would have been had the Company owned 100% of Cambridge Cable since January
1, 1995 (in thousands, except per share data).
<TABLE>
<CAPTION>
Year Ended December 31,
1996 1995
<S> <C> <C>
Revenues........................................ (UK Pound)38,651 (UK Pound)22,859
Net loss........................................ (42,300) (37,616)
Net loss per share.............................. (.84) (.75)
</TABLE>
5. INVESTMENTS IN AFFILIATES
The Company has historically invested in three affiliates (the "Equity
Investees," which term excludes Cambridge Cable as of, and subsequent to
March 31, 1996 - see Note 4): Birmingham Cable, Cable London and Cambridge
Cable. The Equity Investees operate integrated cable communications,
residential telephony and business telecommunications systems in their
respective major metropolitan areas under exclusive cable television
licenses and non-exclusive telecommunications licenses. As of December 31,
1997, the Company's ownership interest in the Equity Investees is as
follows:
Birmingham Cable................................27.5%
Cable London....................................50.0%
The Company also has a 16.4% interest in Cable Programme Partners-1 Limited
Partnership ("CPP-1") which previously developed and distributed cable
programming in the UK. During 1995, CPP-1 sold its only channel and has
wound down its operations to a minimal level of activity. The carrying
value of the Company's investment in CPP-1 has been reduced to zero and the
Company has no future funding commitments to CPP-1.
Included in investments in affiliates as of December 31, 1997 and 1996, are
loans to Cable London of (UK Pound)28.5 million and (UK Pound)22.5 million
and accrued interest of (UK Pound)6.0 million and (UK Pound)3.6 million,
respectively. The loans accrue interest at a rate of 2% above the published
base lending rate of Barclays Bank PLC (9.25% effective rate as of December
31, 1997) and are subordinate to Cable London's revolving bank credit
facility. Of these loans, (UK Pound)21.0 million as of December 31, 1997
and 1996 are convertible into ordinary shares of Cable London at a per
share conversion price of (UK Pound)2.00. Also included in investments in
affiliates as of December 31, 1997 are loans to Birmingham Cable of (UK
Pound)1.9 million and accrued interest of (UK Pound)133,000. The Birmingham
Cable loans accrue interest at a fixed rate of 7.80% and are subordinate to
Birmingham Cable's credit facility. Loans to Cambridge Cable and related
accrued interest have been eliminated in consolidation subsequent to the
SingTel Transaction (see Note 4).
In February 1995, a subsidiary of Birmingham Cable issued 175,000
cumulative (UK Pound)1.00 redeemable five year term preference shares for a
paid up value of (UK Pound)175.0 million. Also in February 1995, Birmingham
Cable entered into a (UK Pound)175.0 million five year revolving credit
facility (the "Birmingham Facility") which provided for conversion into a
five year term loan on March 31, 2000. In March 1997, the terms of the
Birmingham Facility were amended to extend the maturity of the term loan to
December 31, 2005 and to amend the required cash flow levels (as defined)
and certain other terms. Interest rates on the Birmingham Facility are at
the London Interbank Offered Rate ("LIBOR") plus 5/8% to 2 1/4%.
In July 1997, the preference shareholder exercised its option to require
Birmingham Cable to purchase its shareholding. Birmingham Cable funded the
redemption of the preference shares with the proceeds from the Birmingham
Facility and restricted cash and settled its five year (UK Pound)175.0
million interest rate exchange agreement with Barclays Bank PLC. The
balance of the Birmingham Facility will be used, subject to certain
restrictions, for capital expenditures and working capital requirements
relating to the build-out of its systems. The preference shares had an
effective dividend rate, including Advanced Corporation Tax ("ACT"), of
8.00%.
- 41 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
The Birmingham Facility contains restrictive covenants which limit
Birmingham Cable's ability to enter into arrangements for the acquisition
and sale of property and equipment, investments, mergers and the incurrence
of additional debt. Certain of these covenants require that certain minimum
build requirements, financial ratios and cash flow levels be maintained and
contain restrictions on dividend payments. Birmingham Cable's three
principal shareholders' (including the Company) right to receive consulting
fee payments from Birmingham Cable has been subordinated to the banks under
the Birmingham Facility. The payment of consulting fees is restricted until
Birmingham Cable meets certain financial ratio tests under the Birmingham
Facility. Birmingham Cable has pledged the shares of its material
subsidiaries to secure the Birmingham Facility. Upon a change of control,
all amounts due under the Birmingham Facility become immediately due and
payable. The consummation of the NTL Transaction will not result in a
change of control as defined in the Birmingham Facility.
In May 1997, Cable London entered into a (UK Pound)170.0 million revolving
credit facility (the "London Revolver") with various banks, which converts
into a five year term loan on June 30, 2001. Interest rates on the London
Revolver are at LIBOR plus 1/2% to 2 3/8%. In May 1997, Cable London repaid
all amounts outstanding under its existing credit facility with proceeds
from borrowings under the London Revolver. The balance of the London
Revolver will be used, subject to certain restrictions, for capital
expenditures and working capital requirements relating to the build-out of
its systems.
The London Revolver contains restrictive covenants which limit Cable
London's ability to enter into arrangements for the acquisition and sale of
property and equipment, investments, mergers and the incurrence of
additional debt. Certain of these covenants require that certain financial
ratios and cash flow levels be maintained and contain certain restrictions
on dividend payments. The Company's right to receive consulting fee
payments from Cable London has been subordinated to the banks under the
London Revolver. The payment of consulting fees is restricted until Cable
London meets certain financial ratio tests under the London Revolver. In
addition, the Company's shares in Cable London have been pledged to secure
the London Revolver. Upon a change of control, all amounts due under the
London Revolver become immediately due and payable. The consummation of the
NTL Transaction will not result in a change of control as defined in the
London Revolver.
Although the Company is not contractually committed to make any additional
capital contributions or advances to any of the Equity Investees, it
currently intends to fund its share of the amounts necessary for capital
expenditures and to finance operating deficits. Failure to do so could
dilute the Company's ownership interests in the Equity Investees.
- 42 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Summarized financial information for affiliates accounted for under the
equity method for 1997, 1996 and 1995, is as follows:
<TABLE>
<CAPTION>
Birmingham Cable Cambridge
Cable London Cable (1) CPP-1 (2) Combined
(UK Pound)000 (UK Pound)000 (UK Pound)000 (UK Pound)000 (UK Pound)000
<S> <C> <C> <C> <C> <C>
YEAR ENDED DECEMBER 31, 1997
Results of operations
Service income................... (UK Pound)67,166 (UK Pound)52,816 (UK Pound) (UK Pound) (UK Pound)119,982
Operating, selling, general and
administrative expenses........ (56,564) (45,787) (102,351)
Depreciation and amortization.... (26,427) (19,740) (46,167)
Operating loss................... (15,825) (12,711) (28,536)
Net loss......................... (30,826) (25,168) (55,994)
Company's equity in net loss..... (8,616) (12,743) (21,359)
AT DECEMBER 31, 1997
Financial position
Current assets................... 11,424 10,340 21,764
Noncurrent assets................ 248,611 185,353 433,964
Current liabilities.............. 22,293 22,902 45,195
Noncurrent liabilities........... 165,413 173,038 338,451
YEAR ENDED DECEMBER 31, 1996
Results of operations
Service income................... 52,472 40,091 6,401 98,964
Operating, selling, general and
administrative expenses........ (44,476) (39,135) (6,366) (89,977)
Depreciation and amortization.... (19,690) (14,862) (2,168) (36,720)
Operating loss................... (11,694) (13,906) (2,133) (27,733)
Net loss......................... (20,378) (21,241) (4,419) (46,038)
Company's equity in net loss..... (5,671) (10,551) (2,210) (18,432)
AT DECEMBER 31, 1996
Financial position
Current assets................... 70,531 10,217 80,748
Noncurrent assets................ 255,115 159,906 415,021
Current liabilities.............. 33,628 85,183 118,811
Noncurrent liabilities........... 188,863 60,831 249,694
YEAR ENDED DECEMBER 31, 1995
Results of operations
Service income................... 39,004 30,277 20,585 1,088 90,954
Operating, selling, general and
administrative expenses........ (35,894) (33,238) (26,273) (5,673) (101,078)
Depreciation and amortization.... (14,455) (10,847) (7,150) (34) (32,486)
Operating loss................... (11,345) (13,808) (12,838) (4,619) (42,610)
Net loss......................... (14,279) (17,675) (20,398) (5,388) (57,740)
Company's equity in net loss..... (3,922) (8,657) (10,200) (898) (23,677)
<FN>
- ---------------
(1) 1996 results of operations information for Cambridge Cable is for the
three months ended March 31, 1996 (see Note 4).
(2) 1995 results of operations information for CPP-1 is for the six months
ended June 30, 1995.
</FN>
</TABLE>
- 43 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
6. FOREIGN CURRENCY RISK MANAGEMENT
The Company is exposed to market risk including changes in foreign currency
exchange rates. To manage the volatility relating to this exposure, the
Company enters into various derivative transactions pursuant to the
Company's policies in areas such as counterparty exposure and hedging
practices. Positions are monitored using techniques including market value
and sensitivity analyses.
The Company has entered into certain FX Options as a normal part of its
foreign currency risk management efforts. During 1995, the Company entered
into certain foreign exchange put option contracts ("FX Puts") which may be
settled only on November 16, 2000. These FX Puts are used to limit the
Company's exposure to the risk that the eventual cash outflows related to
net monetary liabilities denominated in currencies other than its
functional currency (the UK Pound) (principally the 2007 Discount
Debentures - see Note 7) are adversely affected by changes in exchange
rates. As of December 31, 1997 and 1996, the Company had (UK Pound)250.0
million notional amount of FX Puts to purchase US dollars at an exchange
rate of $1.35 per (UK Pound)1.00 (the "Ratio"). The FX Puts provide a
hedge, to the extent the exchange rate falls below the Ratio, against the
Company's net monetary liabilities denominated in US dollars since gains
and losses realized on the FX Puts are offset against foreign exchange
gains or losses realized on the underlying net liabilities. Premiums paid
for the FX Puts of (UK Pound)13.9 million are included in foreign exchange
put options and other in the Company's consolidated balance sheet, net of
related amortization. These premiums are being amortized over the terms of
the related contracts of five years. As of December 31, 1997 and 1996, the
FX Puts had carrying values of (UK Pound)8.0 million and (UK Pound)10.7
million, respectively. The estimated fair value of the FX Puts was (UK
Pound)3.2 million as of both December 31, 1997 and 1996. The difference
between the carrying amount and the estimated fair value of the FX Puts was
not significant as of December 31, 1995.
In 1995, in order to reduce hedging costs, the Company sold foreign
exchange call option contracts ("FX Calls") to exchange (UK Pound)250.0
million notional amount and received (UK Pound)3.4 million. These contracts
may only be settled on their expiration dates. Of these contracts, (UK
Pound)200.0 million notional amount, with an exchange ratio of $1.70 per
(UK Pound)1.00, expired unexercised in November 1996 while the remaining
contract, with a (UK Pound)50.0 million notional amount and an exchange
ratio of $1.62 per (UK Pound)1.00, has a settlement date in November 2000.
In the fourth quarter of 1996, in order to continue to reduce hedging
costs, the Company sold additional FX Calls for (UK Pound)2.1 million, to
exchange (UK Pound)200.0 million notional amount at an average exchange
ratio of $1.75 per (UK Pound)1.00. These contracts expired unexercised in
the fourth quarter of 1997. The FX Calls are marked-to-market on a current
basis in the Company's consolidated statement of operations.
As of December 31, 1997 and 1996, the estimated fair value of the
liabilities related to the FX Calls, as recorded in the Company's
consolidated balance sheet, was (UK Pound)2.7 million and (UK Pound)7.2
million, respectively. Changes in fair value between measurement dates
relating to the FX Calls resulted in exchange gains of (UK Pound)4.5
million during the year ended December 31, 1997 and exchange losses of (UK
Pound)1.3 million during the year ended December 31, 1996 in the Company's
consolidated statement of operations. There were not significant exchange
gains or losses relating to these contracts for the year ended December 31,
1995.
7. LONG-TERM DEBT
2007 Discount Debentures
In November 1995, the Company received net proceeds of approximately $291.1
million ((UK Pound)186.9 million) from the sale of its 2007 Discount
Debentures in a public offering ($517.3 million principal at maturity).
Interest accretes on the 2007 Discount Debentures at 11.20% per annum
compounded semi-annually from November 15, 1995 to November 15, 2000, after
which date interest will be paid in cash on each May 15 and November 15
through November 15, 2007. The accreted value of the 2007 Discount
Debentures was (UK Pound)229.2 million and (UK Pound)198.1 million as of
December 31, 1997 and 1996, respectively.
The 2007 Discount Debentures contain restrictive covenants which limit the
Company's ability to enter into arrangements for the sale of assets,
mergers, the incurrence of additional debt and the payment of dividends.
The
- 44 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Company was in compliance with such restrictive covenants as of December
31, 1997. Consummation of the NTL Transaction (see Note 1) is subject to
consent of the Company's bondholders.
UK Holdings Credit Facility
On December 23, 1997, UK Holdings entered into a loan agreement (the "UK
Holdings Agreement") with a consortium of banks to provide financing under
a credit facility (the "UK Holdings Credit Facility") up to a maximum of
(UK Pound)200.0 million. Under the terms of the UK Holdings Agreement,
borrowings under the UK Holdings Credit Facility are guaranteed by Teesside
and Cambridge Cable.
On January 14, 1998, UK Holdings borrowed (UK Pound)75.0 million under
Tranche A of the UK Holdings Credit Facility. Of this initial borrowing,
(UK Pound)50.4 million was paid to the Company as a dividend and (UK
Pound)17.8 million was used to fund capital expenditures and working
capital requirements at Cambridge Cable and Teesside. Amounts available
under the UK Holdings Credit Facility will be reduced each quarter in
varying amounts beginning March 31, 2000 and continuing through December
31, 2000. The UK Holdings Credit Facility bears interest at a rate per
annum equal to LIBOR plus 1/2% to 2 1/4%.
The UK Holdings Credit Facility contains restrictive covenants which limit
UK Holdings' ability to enter into arrangements for the acquisition and
sale of property and equipment, investments, mergers and the incurrence of
additional debt. Certain of these covenants require that certain financial
ratios and cash flow levels be maintained and contain certain restrictions
on dividend payments. The Company's right to receive consulting fee
payments from Cambridge Cable and Teesside has been subordinated to the
banks under the UK Holdings Credit Facility. In addition, the Company's
shares in UK Holdings have been pledged to secure the UK Holdings Credit
Facility.
The consummation of the NTL Transaction will result in a change in control,
as defined in the UK Holdings Credit Facility. Upon a change in control,
all amounts outstanding under the UK Holdings Credit Facility will become
immediately due and payable.
Other
As of December 31, 1997 and 1996, Cambridge Cable has two outstanding bank
loans totaling (UK Pound)505,000 and (UK Pound)533,000, respectively, which
are included in long-term debt. These bank loans are secured by Cambridge
Cable's land and buildings in Cambridge and Bishop Stortford and are
payable in quarterly installments through April 2000 and bear interest at a
weighted average fixed rate of 9.35%. Also included in long-term debt are
capital lease obligations of Cambridge Cable and Teesside (see Note 12).
Maturities of long-term debt outstanding, including long-term debt, due to
shareholder (see Note 9), as of December 31, 1997 for the four years after
1998 are as follows (in (UK Pound)000's):
1999 (UK Pound)12,658
2000 665
2001 528
2002 498
The Company's long-term debt, excluding long-term debt due to shareholder,
had estimated fair values of (UK Pound)259.6 million and (UK Pound)219.7
million as of December 31, 1997 and 1996, respectively. The estimated fair
value of the Company's publicly traded debt is based on quoted market
prices for that debt. Interest rates that are currently available to the
Company for issuance of debt with similar terms and remaining maturities
are used to estimate fair value for debt issues for which quoted market
prices are not available.
8. STOCK OPTION/SAR PLANS
The Company implemented a Stock Appreciation Rights ("SARs") plan during
1995 for certain outside directors under which the terms of the SARs
granted are determined by the Compensation Committee of the Board of
Directors (the "SAR Plan"). Under the SAR Plan, eligible participants are
entitled to receive a cash payment from the Company equal to 100% of the
excess, if any, of the fair market value of a share of the Company's Class
A
- 45 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Common Shares at the time of exercise over the fair market value of such a
share at the grant date. Under the SAR Plan, a total of 50,000 SARs may be
granted. The SARs have a term of ten years from the date of grant and are
immediately exercisable. No SARs were granted in 1997. A total of 6,000 and
15,000 SARs were granted in 1996 and 1995, respectively and 14,000 SARs
were outstanding at December 31, 1997, all exercisable. The fair value of
the Company's Class A Common Stock at the grant date of the SARs was $12.63
and $16.25 for 1996 and 1995 grants, respectively. Compensation expense
recorded during the year ended December 31, 1996 was not significant. No
compensation expense was recognized during the years ended December 31,
1997 and December 31, 1995 as the exercise price of the SARs was not less
then the fair value of a share of the Company's Class A Common Shares.
The Company implemented a qualified stock option plan during 1995 for
certain employees, officers and directors, under which the option prices
and other terms are determined by the Compensation Committee of the Board
of Directors (the "Option Plan"). Under the Option Plan, not more than
250,000 of the Company's Class A Common Shares may be issued pursuant to
the plan upon exercise of qualified stock options. All options must be
granted within ten years from the date of adoption of the Option Plan, with
options becoming exercisable over four years from the date of grant. A
total of 20,250 options, with an exercise price of $12.63, were granted in
1996 and are outstanding (none exercisable) at December 31, 1997. No
options were granted in 1997 or 1995. No compensation expense has been
recognized under the Option Plan as the exercise price of the grants was
not less than the fair market value of the shares at the grant date. The
fair value of the options granted in 1996 was not significant.
9. RELATED PARTY TRANSACTIONS
Comcast U.K. Consulting, Inc. ("UK Consulting"), a wholly owned subsidiary
of the Company, earns consulting fee income under consulting agreements
with the Equity Investees. The consulting fee income is generally based on
a percentage of gross revenues or a fixed amount per dwelling unit in the
Equity Investees' franchise areas.
The Company's right to receive consulting fee payments from Birmingham
Cable and Cable London has been subordinated to the banks under their
credit facilities. Accordingly, a portion of these fees have been
classified as long-term receivables and are included in investments in
affiliates in the Company's consolidated balance sheet. In addition, the
Company's shares in Cable London have been pledged to secure amounts
outstanding under the London Revolver.
Management fee expense is incurred under agreements between the Company on
the one hand, and Comcast, the Company's controlling shareholder, and
Comcast UK Cable Partners Consulting, Inc. ("Comcast Consulting"), an
indirect wholly owned subsidiary of Comcast, on the other, whereby Comcast
and Comcast Consulting provide consulting services to the Equity Investees
on behalf of the Company and management services to the Company. Such
management fees are based on Comcast's and Comcast Consulting's cost of
providing such services. As of December 31, 1997 and 1996, due to
affiliates consists primarily of this management fee and operating expenses
paid by Comcast and its affiliates on behalf of the Company.
Investment income includes (UK Pound)2.5 million, (UK Pound)2.9 million and
(UK Pound)5.0 million of interest income in 1997, 1996 and 1995,
respectively, relating to the loans to Birmingham Cable, Cable London and
Cambridge Cable described in Note 5.
Long-term debt, due to shareholder consists of 9% Subordinated Notes
payable to Holdings (the "Notes") which are due in 1999. During the years
ended December 31, 1997, 1996 and 1995, interest expense on the Notes was
(UK Pound)950,000, (UK Pound)870,000 and (UK Pound)800,000, respectively.
In management's opinion, the foregoing transactions were entered into on
terms no more or less favorable than those with non-affiliated parties.
10. INCOME TAXES
The Company's wholly owned subsidiaries have a deferred tax asset arising
from the carryforward of net operating losses and the differences between
the book and tax basis of property. However, a valuation allowance has been
recorded to fully reserve the deferred tax asset as its realization is
uncertain.
- 46 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Significant components of deferred income taxes are as follows (in (UK
Pound)000's):
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
Net operating loss carryforwards
(carried forward indefinitely)............................ (UK Pound)14,382 (UK Pound)13,485
Differences between book and tax
basis of property......................................... 7,959 1,024
Other....................................................... 321 170
Less: Valuation allowance................................... (22,662) (14,679)
---------------- ----------------
(UK Pound) (UK Pound)
================ ================
</TABLE>
11. STATEMENT OF CASH FLOWS - SUPPLEMENTAL INFORMATION
The Company made cash payments for interest of approximately (UK
Pound)559,000 and (UK Pound)418,000 during the years ended December 31,
1997 and 1996, respectively. There were no cash interest payments made
during the year ended December 31, 1995.
The Company's wholly owned subsidiaries incurred capital lease obligations
of (UK Pound)2.1 million, (UK Pound)1.2 million and (UK Pound)490,000
during the years ended December 31, 1997, 1996 and 1995, respectively.
12. COMMITMENTS AND CONTINGENCIES
Certain of the Company's facilities and equipment are held under operating
or capital leases which expire through 2008.
A summary of assets held under capital lease are as follows (in (UK
Pound)000's):
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
Land, buildings and equipment............................... (UK Pound)10,735 (UK Pound)8,605
Less: Accumulated depreciation.............................. (3,165) (834)
---------------- ---------------
(UK Pound) 7,570 (UK Pound)7,771
================ ===============
</TABLE>
Future minimum rental payments under lease commitments with an initial or
remaining term of more than one year of December 31, 1997 are as follows
(in (UK Pound)000's):
<TABLE>
<CAPTION>
Capital Operating
leases leases
<S> <C> <C>
1998........................................................ (UK Pound)2,191 (UK Pound)1,580
1999........................................................ 1,753 969
2000........................................................ 902 283
2001........................................................ 706 63
2002........................................................ 629 63
Thereafter.................................................. 1,731 36
--------------- ---------------
Total minimum rental commitments............................ (UK Pound)7,912 (UK Pound)2,994
===============
Less: Amount representing interest.......................... (1,874)
---------------
Present value of minimum rental commitments................. 6,038
Less: Current portion of capital lease obligations.......... (1,660)
---------------
Long-term portion of capital lease obligations.............. (UK Pound)4,378
===============
</TABLE>
- 47 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Concluded)
Operating lease expense for the years ended December 31, 1997, 1996 and
1995 was (UK Pound)1.7 million, (UK Pound)1.5 million and (UK
Pound)328,000, respectively.
The Company is subject to legal proceedings and claims which arise in the
ordinary course of its business. In the opinion of management, the amount
of ultimate liability with respect to these actions will not materially
affect the financial position, results of operations or liquidity of the
Company.
13. QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
<TABLE>
<CAPTION>
First Second Third Fourth Total
Quarter Quarter (1) Quarter Quarter (2) Year
((UK Pound)000, except per share data)
1997
<S> <C> <C> <C> <C> <C>
Revenues............................. (UK Pound)12,351 (UK Pound)13,350 (UK Pound)14,241 (UK Pound)16,720 (UK Pound)56,662
Operating loss....................... (6,543) (6,364) (5,679) (4,018) (22,604)
Equity in net losses of affiliates... (5,152) (5,162) (5,195) (5,850) (21,359)
Net loss............................. (20,540) (13,108) (20,682) (13,026) (67,356)
Net loss per share................... (.41) (.26) (.41) (.26) (1.34)
1996
Revenues............................. (UK Pound)2,334 (UK Pound)9,452 (UK Pound)10,090 (UK Pound)10,552 (UK Pound)32,428
Operating loss....................... (3,765) (6,128) (7,398) (7,262) (24,553)
Equity in net losses of affiliates... (5,698) (3,942) (4,166) (4,626) (18,432)
Net loss............................. (11,987) (11,292) (14,571) (2,725) (40,575)
Net loss per share................... (.28) (.22) (.30) (.04) (.84)
- ---------------
<FN>
(1) The Company began consolidating Cambridge Cable effective March 31, 1996.
(2) The fourth quarter of 1996 net loss includes (UK Pound)12.9 million of
foreign currency exchange rate gains resulting from fluctuations in the
foreign currency exchange rate.
</FN>
</TABLE>
- 48 -
<PAGE>
INDEPENDENT AUDITORS' REPORT
Board of Directors and Shareholders
Birmingham Cable Corporation Limited
We have audited the accompanying consolidated balance sheet of Birmingham Cable
Corporation Limited (a company incorporated in the United Kingdom) and
subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of operations, shareholders' equity and of cash flows for each of the
three years in the period ended December 31, 1997. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Birmingham Cable Corporation
Limited and subsidiaries as of December 31, 1997 and 1996, and the results of
their operations and their cash flows for each of the three years in the period
ended December 31, 1997 in conformity with accounting principles generally
accepted in the United States of America.
Deloitte & Touche
Birmingham, England
February 27, 1998 (March 16, 1998 as to Note 3)
- 49 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(in (UK Pound)000's, except share data)
<TABLE>
<CAPTION>
December 31,
1997 1996
ASSETS
CURRENT ASSETS
<S> <C> <C>
Cash and cash equivalents..................................... (UK Pound)2,254 (UK Pound)7,689
Restricted cash............................................... 53,000
Accounts receivable, less allowance for doubtful accounts of
(UK Pound)4,834 and (UK Pound)2,360........................ 6,326 4,809
Interest receivable........................................... 2,016
Other current assets.......................................... 2,844 3,017
----------------- -----------------
Total current assets.................................... 11,424 70,531
----------------- -----------------
RESTRICTED CASH................................................... 22,000
----------------- -----------------
PROPERTY AND EQUIPMENT............................................ 310,111 269,665
Accumulated depreciation...................................... (74,214) (49,961)
----------------- -----------------
Property and equipment, net................................... 235,897 219,704
----------------- -----------------
DEFERRED CHARGES.................................................. 18,112 16,890
Accumulated amortization...................................... (5,398) (3,479)
----------------- -----------------
Deferred charges, net......................................... 12,714 13,411
----------------- -----------------
(UK Pound)260,035 (UK Pound)325,646
================= =================
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable and accrued expenses......................... (UK Pound)18,997 (UK Pound)24,381
Accrued interest.............................................. 1,611 7,398
Current portion of capital lease obligations.................. 1,685 1,849
----------------- -----------------
Total current liabilities............................... 22,293 33,628
----------------- -----------------
LONG-TERM DEBT.................................................... 140,000
----------------- -----------------
CAPITAL LEASE OBLIGATIONS, less current portion................... 13,539 11,625
----------------- -----------------
LONG-TERM DEBT, due to shareholders............................... 7,492
----------------- -----------------
OTHER LIABILITIES................................................. 4,382 2,238
----------------- -----------------
COMMITMENTS AND CONTINGENCIES
PREFERENCE SHARES................................................. 175,000
----------------- -----------------
SHAREHOLDERS' EQUITY
Ordinary shares, (UK Pound)1.00 par value - authorized, 60,000,000
shares; issued, 51,073,486................................. 51,073 51,073
Additional capital............................................ 112,399 112,399
Accumulated deficit........................................... (91,143) (60,317)
----------------- -----------------
Total shareholders' equity.............................. 72,329 103,155
----------------- -----------------
(UK Pound)260,035 (UK Pound)325,646
================= =================
</TABLE>
See notes to consolidated financial statements.
- 50 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
SERVICE INCOME............................................(UK Pound)67,166 (UK Pound)52,472 (UK Pound)39,004
---------------- ---------------- ----------------
COSTS AND EXPENSES
Operating ............................................. 28,942 20,912 16,358
Selling, general and administrative.................... 27,622 23,564 19,536
Depreciation and amortization.......................... 26,427 19,690 14,455
---------------- ---------------- ----------------
82,991 64,166 50,349
---------------- ---------------- ----------------
OPERATING LOSS............................................ (15,825) (11,694) (11,345)
INTEREST EXPENSE.......................................... 17,500 17,202 13,993
INVESTMENT INCOME......................................... (2,499) (8,518) (11,059)
---------------- ---------------- ----------------
NET LOSS.................................................((UK Pound)30,826)((UK Pound)20,378)((UK Pound)14,279)
================ ================= ================
</TABLE>
See notes to consolidated financial statements.
- 51 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net loss.................................................... ((UK Pound)30,826) ((UK Pound)20,378) ((UK Pound)14,279)
Adjustments to reconcile net loss to net cash (used in)
provided by operating activities:
Depreciation and amortization ............................ 26,427 19,690 14,455
Non-cash interest expense ................................ 492
----------------- ----------------- -----------------
(3,907) (688) 176
Decrease (increase) in accounts receivable,
interest receivable and other current assets ........... 672 4,939 (7,438)
(Decrease) increase in accounts payable and
accrued expenses, accrued interest and other liabilities (9,027) 10,559 6,469
----------------- ----------------- -----------------
Net cash (used in) provided by operating activities .. (12,262) 14,810 (793)
----------------- ----------------- -----------------
FINANCING ACTIVITIES
Proceeds from borrowings ................................... 140,000 175,000
Loans from shareholders .................................... 7,000
Debt acquisition costs ..................................... (2,977)
Redemption of preference shares ............................ (175,000)
Repayment of capital leases ................................ (2,316) (1,161) (220)
----------------- ----------------- -----------------
Net cash (used in) provided by financing activities .. (30,316) (1,161) 171,803
----------------- ----------------- -----------------
INVESTING ACTIVITIES
Restricted cash ............................................ 75,000 39,000 (114,000)
Capital expenditures ....................................... (36,635) (56,492) (47,999)
Deferred charges ........................................... (1,222) (991) (601)
----------------- ----------------- -----------------
Net cash provided by (used in) investing activities .. 37,143 (18,483) (162,600)
----------------- ----------------- -----------------
(DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS .............. (5,435) (4,834) 8,410
CASH AND CASH EQUIVALENTS, beginning of year .................. 7,689 12,523 4,113
----------------- ----------------- -----------------
CASH AND CASH EQUIVALENTS, end of year......................... (UK Pound)2,254 (UK Pound)7,689 (UK Pound)12,523
================= ================= =================
</TABLE>
See notes to consolidated financial statements.
- 52 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Ordinary Additional Accumulated
Shares Capital Deficit Total
<S> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1995..................... (UK Pound)51,073 (UK Pound)112,399 ((UK Pound)25,660) (UK Pound)137,812
Net loss................................ (14,279) (14,279)
---------------- ----------------- ----------------- -----------------
BALANCE, DECEMBER 31, 1995................... 51,073 112,399 (39,939) 123,533
Net loss................................ (20,378) (20,378)
---------------- ----------------- ----------------- -----------------
BALANCE, DECEMBER 31, 1996................... 51,073 112,399 (60,317) 103,155
Net loss................................ (30,826) (30,826)
---------------- ----------------- ----------------- -----------------
BALANCE, DECEMBER 31, 1997................... (UK Pound)51,073 (UK Pound)112,399 ((UK Pound)91,143) (UK Pound)72,329
================ ================= ================ ================
</TABLE>
See notes to consolidated financial statements.
- 53 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
1. BUSINESS
Birmingham Cable Corporation Limited, a company incorporated in the United
Kingdom ("UK"), and subsidiaries (the "Company") is principally engaged in
the development, construction, management and operation of cable
telecommunications systems. The Company holds two franchises in
Birmingham/Solihull and Wythall, England.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Accounting
The Company maintains its books and records in accordance with accounting
principles generally accepted in the UK. The consolidated financial
statements have been prepared in accordance with generally accepted
accounting principles as practiced in the United States ("US") and are
stated in UK pounds sterling ("UK Pound"). There were no significant
differences between accounting principles followed for UK purposes and
generally accepted accounting principles practiced in the US. The UK Pound
exchange rate as of December 31, 1997 and 1996 was US $1.65 and US $1.71,
respectively.
Basis of Consolidation
The consolidated financial statements include the accounts of the Company
and all wholly owned subsidiaries. All significant intercompany accounts
and transactions among the consolidated entities have been eliminated.
Management's Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Fair Values
The estimated fair value amounts presented in these notes to consolidated
financial statements have been determined by the Company using available
market information and appropriate methodologies. However, considerable
judgment is required in interpreting market data to develop the estimates
of fair value. The estimates presented herein are not necessarily
indicative of the amounts that the Company could realize in a current
market exchange. The use of different market assumptions and/or estimation
methodologies may have a material effect on the estimated fair value
amounts. Such fair value estimates are based on pertinent information
available to management as of December 31, 1997 and 1996, and have not been
comprehensively revalued for purposes of these consolidated financial
statements since such dates.
Cash, Cash Equivalents and Restricted Cash
Cash, cash equivalents and restricted cash as of December 31, 1996 included
cash held on deposit as part of a (UK Pound)175.0 million financing
arrangement entered into by the Company in 1995. In July 1997 this
arrangement was restructured and the restricted cash was used, together
with proceeds from the Birmingham Facility, to redeem the preference shares
(see Note 3).
Prematurity Period
The Company accounts for costs, expenses and revenues applicable to the
construction and operation of its cable telecommunications systems under
the provisions of Statement of Financial Accounting Standards ("SFAS") No.
51, "Financial Reporting by Cable Television Companies."
Under SFAS No. 51, during the period while the systems are partially under
construction and partially in service (the "Prematurity Period"), costs of
cable telecommunications plant, including materials, direct labor and
construction overhead are capitalized. Subscriber-related costs and general
and administrative costs are expensed as incurred. Costs incurred in
anticipation of servicing a fully operating system that will not vary
regardless of the number of subscribers are partially expensed and
partially capitalized, based upon the percentage of average actual
- 54 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
or estimated subscribers, whichever is greater, to the total number of
subscribers expected at the end of the Prematurity Period (the "Fraction").
During the Prematurity Period, depreciation and amortization of system
assets is determined by multiplying the depreciation and amortization of
the total capitalized system assets expected at the end of the Prematurity
Period by the Fraction. At the end of the Prematurity Period, depreciation
and amortization of system assets is based on the remaining undepreciated
cost at that date.
As of December 31, 1997, all of the Company's seven discrete build areas
have completed their Prematurity Period.
Property and Equipment
Property and equipment, which consists principally of system assets, is
shown at historical cost less accumulated depreciation. Improvements that
extend asset lives are capitalized; other repairs and maintenance charges
are expensed as incurred. The cost and related accumulated depreciation
applicable to assets sold or retired are removed from the accounts and the
gain or loss on disposition is recognized as a component of depreciation
expense.
System assets
Prior to the Prematurity Period, no depreciation is provided on system
assets. During the Prematurity Period, depreciation is provided in
accordance with SFAS No. 51.
Depreciation of system assets is provided by the straight-line method over
estimated useful lives as follows:
Plant 15-40 years
Network 15 years
Subscriber equipment 6-10 years
Switch 10 years
Computers 4 years
Non-system assets
Depreciation of non-system assets is provided by the straight-line method
over estimated useful lives as follows:
Buildings 40 years
Leasehold buildings term of lease
Fixtures, fittings and equipment 5 years
Computers 4 years
Vehicles 4 years
Leased Assets
Assets held under capital leases are treated as if they had been purchased
outright and the corresponding liability is included in capital lease
obligations. Capital lease payments include principal and interest, with
the interest portion being expensed. Payments on operating leases are
expensed on a straight-line basis over the lease term.
Deferred Charges
Deferred charges consist primarily of franchise acquisition and development
costs directly attributable to obtaining, developing and maintaining the
franchise licenses. Franchise acquisition and development costs have been
allocated evenly between each build area and are amortized, by build area,
on a straight-line basis, over the lives of the franchises of 15 to 23
years.
Valuation of Long-Lived Assets
The Company periodically evaluates the recoverability of its long-lived
assets, including property and equipment and deferred charges, using
objective methodologies. Such methodologies include evaluations based on
the cash flows generated by the underlying assets or other determinants of
fair value.
- 55 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Revenue Recognition
Service income is recognized as service is provided. Credit risk is managed
by disconnecting services to subscribers who are delinquent.
Income Taxes
The Company recognizes deferred tax assets and liabilities for temporary
differences between the financial reporting basis and the tax basis of the
Company's assets and liabilities and expected benefits of utilizing net
operating loss carryforwards. The impact on deferred taxes of changes in
tax rates and laws, if any, applied to the years during which temporary
differences are expected to be settled, are reflected in the financial
statements in the period of enactment.
Derivative Financial Instruments
The Company uses interest rate exchange agreements ("Swaps"), to manage its
exposure to fluctuations in interest rates. Swaps are matched with either
fixed or variable rate debt and periodic cash payments are accrued on a
settlement basis as an adjustment to interest expense.
Those instruments that have been entered into by the Company to hedge
exposure to interest rate risks are periodically examined by the Company to
ensure that the instruments are matched with underlying liabilities, reduce
the Company's risks relating to interest rates and, through market value
and sensitivity analysis, maintain a high correlation to the interest
expense or underlying value of the hedged item.
The Company does not hold or issue any derivative financial instruments for
trading purposes and is not a party to any leveraged instruments (see Note
3). The credit risks associated with the Company's derivative financial
instruments are controlled through the evaluation and monitoring of the
creditworthiness of the counterparties. Although the Company may be exposed
to losses in the event of nonperformance by the counterparties, the Company
does not expect such losses, if any, to be significant.
Reclassifications
Certain reclassifications have been made to the prior years' consolidated
financial statements to conform to those classifications used in 1997.
3. LONG-TERM DEBT AND PREFERENCE SHARES
In February 1995, a subsidiary of the Company issued 175,000 cumulative (UK
Pound)1.00 redeemable five year term preference shares for a paid up value
of (UK Pound)175.0 million. Also in February 1995, the Company entered into
a (UK Pound)175.0 million five year revolving credit facility (the
"Birmingham Facility") which provided for conversion into a five year term
loan on March 31, 2000. In March 1997, the terms of the Birmingham Facility
were amended to extend the maturity of the term loan to December 31, 2005
and to amend the required cash flow levels (as defined) and certain other
terms. Interest rates on the Birmingham Facility are at the London
Interbank Offered Rate ("LIBOR") plus 5/8% to 2 1/4%.
In July 1997, the preference shareholder exercised its option to require
the Company to purchase its shareholding. The Company funded the redemption
of the preference shares with the proceeds from the Birmingham Facility and
restricted cash and settled its five year (UK Pound)175.0 million interest
rate exchange agreement with Barclays Bank PLC. The balance of the
Birmingham Facility will be used, subject to certain restrictions, for
capital expenditures and working capital requirements relating to the
build-out of its systems. The preference shares had an effective dividend
rate, including Advanced Corporation Tax ("ACT"), of 8.00%.
The Birmingham Facility contains restrictive covenants which limit the
Company's ability to enter into arrangements for the acquisition and sale
of property and equipment, investments, mergers and the incurrence of
additional debt. Certain of these covenants require that certain minimum
build requirements, financial ratios and cash flow levels be maintained and
contain restrictions on dividend payments. The Company's three principal
shareholders' right to receive consulting fee payments from the Company has
been subordinated to the banks under the Birmingham Facility. The payment
of consulting fees is restricted until the Company meets certain financial
ratio tests under the
- 56 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Birmingham Facility. The Company has pledged the shares of its material
subsidiaries to secure the Birmingham Facility. Upon a change of control,
all amounts due under the Birmingham Facility become immediately due and
payable. On February 4, 1998, Comcast UK Cable Partners Limited ("Comcast
UK"), one the Company's principal shareholders, entered into a definitive
agreement to amalgamate (the "NTL Transaction") with a wholly owned
subsidiary of NTL Incorporated. The consummation of the NTL Transaction
will not result in a change of control as defined in the Birmingham
Facility.
The Company enters into Swaps as a normal part of its risk management
efforts to limit its exposure to adverse fluctuations in interest rates.
Using Swaps, the Company agrees to exchange, at specified intervals, the
difference between fixed and variable interest amounts calculated by
reference to an agreed upon notional amount. In conjunction with the
Birmingham Facility, a subsidiary of the Company and Barclays Bank PLC
entered into a five year (UK Pound)175.0 million Swap, whereby the
subsidiary receives fixed interest at a rate of 8.83% and pays floating
rate interest at the six month LIBOR. The (UK Pound)175.0 million Swap was
settled in July 1997 along with the redemption of the preference shares
(see above). In addition, a subsidiary of the Company entered into a second
series of five year Swaps with three banks. Under the agreements, the
subsidiary pays fixed rate interest at 9.20% and receives floating rate
interest at six month LIBOR, based upon the outstanding notional amount of
the Swaps. As of December 31, 1997 and 1996, the notional amount
outstanding on the second series of Swaps was (UK Pound)149.0 million and
(UK Pound)106.0 million, respectively, and increased to (UK Pound)160.0
million on January 2, 1998. The notional amounts of interest rate
agreements are used to measure interest to be paid or received and do not
represent the amount of exposure to credit loss. While Swaps represent an
integral part of the Company's interest rate risk management program, their
incremental effect on interest expense for the years ended December 31,
1997, 1996 and 1995 was not significant. The estimated amount to settle the
Company's Swaps was a liability of (UK Pound)7.5 million and a receivable
of (UK Pound)168,000 as of December 31, 1997 and 1996, respectively.
On March 16, 1998, the Company's shareholders loaned (UK Pound)7.0 million
to the Company in the form of Junior Subordinated Debt, as defined in the
Birmingham Facility. The proceeds from this borrowing were used to settle
the Swaps described above. Additionally, on March 16, 1998 a subsidiary of
the Company entered into a (UK Pound)160.0 million notional amount two year
Swap with three banks. Under the terms of this Swap, the subsidiary pays
fixed rate interest at 7.23% and receives floating rate interest at six
month LIBOR, based upon the notional amount.
Maturities of long-term debt outstanding as of December 31, 1997 for the
four years after 1998 are as follows ((UK Pound)000's):
1999 (UK Pound)
2000 7,000
2001 14,000
2002 21,000
The differences between the carrying amounts and estimated fair value of
the Company's long-term debt was not significant as of December 31, 1997
and 1996. Interest rates that are currently available to the Company for
debt with similar terms and remaining maturities are used to estimate fair
value for debt issues for which quoted market prices are not available.
4. LONG-TERM DEBT, DUE TO SHAREHOLDERS
As of December 31, 1997, the Company had outstanding loans from
shareholders of (UK Pound)7.0 million and accrued interest thereon of (UK
Pound)492,000. The loans from shareholders bear interest at a fixed rate of
7.8% and are payable on demand. Under the terms of the Birmingham Facility,
however, principal and interest on the loans from shareholders cannot be
paid until the Birmingham Facility is repaid. Thus, the loans from
shareholders and accrued interest thereon have been classified as long-term
in the Company's consolidated balance sheet. A reasonable estimate of the
fair value of the loans from shareholders is not practicable to obtain
because of the related party nature of these items and the lack of quoted
market prices.
- 57 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
5. RELATED PARTY TRANSACTIONS
The Company has consulting agreements with Comcast U.K. Consulting, Inc.
("Comcast Consulting") and Telewest Communications Group Ltd., subsidiaries
of two of the Company's principal shareholders, Comcast UK and Telewest
Communications plc ("Telewest"), respectively. The Company also has a
consulting agreement with General Cable, the Company's other principal
shareholder. The Company pays a fee to Telewest each year as a contribution
to the operating expenses and capital expenditures of Telewest's Network
Service Center, which provides telephony support to the Company. The
Company has a telephony interconnect agreement with Telewest, whereby
certain telephony traffic is routed via Telewest. These interconnect costs
are included in "other" below.
A summary of related party charges included in the Company's consolidated
financial statements is as follows (in (UK Pound)000's):
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Consulting fees (UK Pound)1,511 (UK Pound)1,326 (UK Pound)1,070
Network Service Center fees 711 814 680
Other 1,151 109 6
--------------- --------------- ---------------
(UK Pound)3,373 (UK Pound)2,249 (UK Pound)1,756
=============== =============== ===============
</TABLE>
As of December 31, 1997 and 1996, accounts payable and accrued expenses
include (UK Pound)1.4 million and (UK Pound)2.3 million, respectively,
payable to the Company's three principal shareholders, principally for
consulting fees and normal operating expenses paid by the shareholders and
their affiliates on behalf of the Company. As of December 31, 1997 and
1996, other long-term liabilities includes (UK Pound)3.9 million and (UK
Pound)1.3 million, respectively, of consulting fees payable to the
Company's three principal shareholders as payment is restricted under the
Birmingham Facility.
In management's opinion, the foregoing transactions were entered into on
terms no more or less favorable than those with non-affiliated third
parties.
6. INCOME TAXES
The Company has a deferred tax asset arising from the carryforward of net
operating losses and the differences between the book and tax basis of
property. However, a valuation allowance has been recorded to fully reserve
the deferred tax asset as its realization is uncertain.
Significant components of the Company's deferred income taxes are as
follows (in (UK Pound)000's):
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
Net operating loss carryforwards (carried forward indefinitely).............. (UK Pound)3,253 (UK Pound)3,218
Differences between book and tax basis of property........................... 7,880 6,916
Less: Valuation allowance.................................................... (11,133) (10,134)
--------------- --------------
(UK Pound) (UK Pound)
=============== ==============
</TABLE>
- 58 -
<PAGE>
BIRMINGHAM CABLE CORPORATION LIMITED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Concluded)
In connection with the Birmingham Facility and the related preference share
arrangement (see Note 3), the Company is obligated to pay ACT on all
preference share dividends. Related ACT for 1997, 1996 and 1995 was (UK
Pound)1.4 million, (UK Pound)2.8 million and (UK Pound)2.5 million,
respectively, and has been classified as a component of interest expense in
the Company's consolidated statement of operations. ACT may be carried
forward indefinitely to offset potential future tax liabilities of the
Company.
7. STATEMENT OF CASH FLOWS - SUPPLEMENTAL INFORMATION
The Company made cash payments for interest and preferred stock dividends
of approximately (UK Pound)43.0 million, (UK Pound)31.2 million and (UK
Pound)11.3 million during the years ended December 31, 1997, 1996 and 1995,
respectively.
The Company incurred capital lease obligations of (UK Pound)4.1 million,
(UK Pound)5.0 million and (UK Pound)4.6 million during the years ended
December 31, 1997, 1996 and 1995, respectively.
8. COMMITMENTS AND CONTINGENCIES
Certain of the Company's facilities and equipment are held under operating
or capital leases which expire through 2007.
A summary of assets held under capital leases are as follows (in (UK
Pound)000's):
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
System, fixtures, fittings, equipment and vehicles.......... (UK Pound)18,991 (UK Pound)14,925
Less: Accumulated depreciation.............................. (5,779) (3,556)
---------------- ---------------
(UK Pound)13,212 (UK Pound)11,369
================ ===============
</TABLE>
Future minimum rental payments under lease commitments with an initial or
remaining term of more than one year as of December 31, 1997 are as follows
(in (UK Pound)000's):
<TABLE>
<CAPTION>
Capital Operating
leases leases
<S> <C> <C>
1998........................................................ (UK Pound)2,699 (UK Pound)156
1999........................................................ 2,801 156
2000........................................................ 2,778 156
2001........................................................ 2,300 157
2002........................................................ 1,719 154
Thereafter.................................................. 7,710 1,805
--------------- --------------
Total minimum rental commitments............................ 20,007 (UK Pound)2,584
==============
Less: Amount representing interest.......................... (4,783)
---------------
Present value of minimum rental commitments................. 15,224
Less: Current portion of capital lease obligations.......... (1,685)
---------------
Long-term portion of capital lease obligations.............. (UK Pound)13,539
===============
</TABLE>
Operating lease expense for the years ended December 31, 1997, 1996 and
1995 was (UK Pound)169,000, (UK Pound)428,000 and (UK Pound)947,000,
respectively.
Included within accounts payable and accrued expenses and other long-term
liabilities as of December 31, 1997 and 1996 is (UK Pound)570,000 and (UK
Pound)665,000, respectively, which represents the obligation incurred by
the Company in connection with the termination of a contractual obligation
under an agreement with the local authority to service and maintain the
Company's satellite master antenna television installations in the
franchise area. This liability is noninterest bearing and will be
discharged by the payment of (UK Pound)95,000 annually through 2003. The
effect of discounting the liability is not significant to the Company's
financial position or results of operations.
- 59 -
<PAGE>
INDEPENDENT AUDITORS' REPORT
Board of Directors and Shareholders
Cable London PLC
We have audited the accompanying consolidated balance sheet of Cable London PLC
(a company incorporated in the United Kingdom) and subsidiaries as of December
31, 1997 and 1996, and the related consolidated statements of operations,
shareholders' (deficiency) equity and of cash flows for each of the three years
in the period ended December 31, 1997. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Cable London PLC and subsidiaries
as of December 31, 1997 and 1996, and the results of their operations and their
cash flows for each of the three years in the period ended December 31, 1997. in
conformity with accounting principles generally accepted in the United States of
America.
Deloitte & Touche
London, England
February 27, 1998
- 60 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(in (UK Pound)000's, except share data)
<TABLE>
<CAPTION>
December 31,
1997 1996
ASSETS
CURRENT ASSETS
<S> <C> <C>
Cash.......................................................... (UK Pound)2,718 (UK Pound)3,213
Accounts receivable, less allowance for doubtful accounts of
(UK Pound)1,762 and (UK Pound)1,465........................ 4,792 3,670
Other current assets.......................................... 2,830 3,334
--------------- ----------------
Total current assets.................................... 10,340 10,217
--------------- ----------------
PROPERTY AND EQUIPMENT............................................ 235,786 192,630
Accumulated depreciation...................................... (55,292) (36,480)
--------------- ----------------
Property and equipment, net................................... 180,494 156,150
--------------- ----------------
DEFERRED CHARGES.................................................. 8,073 6,986
Accumulated amortization...................................... (3,214) (3,230)
--------------- ----------------
Deferred charges, net......................................... 4,859 3,756
--------------- ----------------
(UK Pound)195,693 (UK Pound)170,123
================ ================
LIABILITIES AND SHAREHOLDERS' (DEFICIENCY) EQUITY
CURRENT LIABILITIES
Accounts payable and accrued expenses......................... (UK Pound)19,972 (UK Pound)21,705
Other current liabilities..................................... 2,172 3,117
Current portion of long-term debt and capital lease obligations 758 60,361
--------------- ----------------
Total current liabilities............................... 22,902 85,183
--------------- ----------------
LONG-TERM DEBT, less current portion.............................. 89,727 718
--------------- ----------------
CAPITAL LEASE OBLIGATIONS, less current portion................... 11,751 7,869
--------------- ----------------
CONVERTIBLE DEBT AND LOANS FROM SHAREHOLDERS...................... 69,017 52,244
--------------- ----------------
OTHER LIABILITIES................................................. 2,543
--------------- ----------------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' (DEFICIENCY) EQUITY
Ordinary shares, (UK Pound).10 par value - authorized,
100,000,000 shares; issued, 55,572,916 and 55,125,690....... 5,557 5,513
Additional capital............................................ 97,254 96,486
Accumulated deficit........................................... (103,058) (77,890)
--------------- ----------------
Total shareholders' (deficiency) equity................. (247) 24,109
--------------- ----------------
(UK Pound)195,693 (UK Pound)170,123
================ ================
</TABLE>
See notes to consolidated financial statements.
- 61 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
SERVICE INCOME............................................(UK Pound)52,816 (UK Pound)40,091 (UK Pound)30,277
----------------- ----------------- -----------------
COSTS AND EXPENSES
Operating.............................................. 22,084 17,978 14,622
Selling, general and administrative.................... 23,703 21,157 18,616
Depreciation and amortization.......................... 19,740 14,862 10,847
----------------- ----------------- -----------------
65,527 53,997 44,085
----------------- ----------------- -----------------
OPERATING LOSS............................................ (12,711) (13,906) (13,808)
INTEREST EXPENSE.......................................... 12,692 7,556 4,133
INVESTMENT INCOME......................................... (235) (221) (266)
----------------- ----------------- -----------------
NET LOSS.................................................((UK Pound)25,168)((UK Pound)21,241)((UK Pound)17,675)
================= ================= =================
</TABLE>
See notes to consolidated financial statements.
- 62 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net loss...................................................((UK Pound)25,168) ((UK Pound)21,241) ((UK Pound)17,675)
Adjustments to reconcile net loss to net cash
(used in) provided by operating activities:
Depreciation and amortization ........................... 19,740 14,862 10,847
Non-cash interest expense ............................... 4,773 3,355 3,311
--------------- --------------- ---------------
(655) (3,024) (3,517)
Increase in accounts receivable and
other current assets .................................. (618) (2,428) (214)
(Decrease) increase in accounts payable
and accrued expenses, other current liabilities
and other liabilities .................................. (135) 7,508 3,992
--------------- --------------- ---------------
Net cash (used in) provided by operating activities.. (1,408) 2,056 261
--------------- --------------- ---------------
FINANCING ACTIVITIES
Proceeds from borrowings .................................. 94,029 40,000 38,000
Debt acquisition costs .................................... (1,704) (493)
Loans from shareholders ................................... 12,000 3,000
Repayments of debt ........................................ (65,031) (33) (30)
Repayment of capital leases ............................... (537) (21)
Issuances of shares ....................................... 812
--------------- --------------- ---------------
Net cash provided by financing activities ........... 39,569 42,946 37,477
--------------- --------------- ---------------
INVESTING ACTIVITIES
Capital expenditures ...................................... (38,656) (46,082) (36,780)
Deferred charges and other ................................ (834)
--------------- --------------- ---------------
Net cash used in investing activities ............... (38,656) (46,082) (37,614)
--------------- --------------- ---------------
(DECREASE) INCREASE IN CASH .................................. (495) (1,080) 124
CASH, beginning of year ...................................... 3,213 4,293 4,169
--------------- --------------- ---------------
CASH, end of year............................................. (UK Pound)2,718 (UK Pound)3,213 (UK Pound)4,293
=============== =============== ===============
</TABLE>
See notes to consolidated financial statements.
- 63 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREHOLDERS' (DEFICIENCY) EQUITY
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Ordinary Additional Accumulated
Shares Capital Deficit Total
<S> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1995..................... (UK Pound)5,513 (UK Pound)96,486 ((UK Pound)38,974) (UK Pound)63,025
Net loss................................ (17,675) (17,675)
-------------- --------------- ----------------- -------------
BALANCE, DECEMBER 31, 1995................... 5,513 96,486 (56,649) 45,350
Net loss................................ (21,241) (21,241)
-------------- --------------- ----------------- -------------
BALANCE, DECEMBER 31, 1996................... 5,513 96,486 (77,890) 24,109
Shares issued........................... 44 768 812
Net loss................................ (25,168) (25,168)
-------------- --------------- ----------------- -------------
BALANCE, DECEMBER 31, 1997................... (UK Pound)5,557 (UK Pound)97,254 ((UK Pound)103,058) ((UK Pound)247)
============== =============== ================= =============
</TABLE>
See notes to consolidated financial statements.
- 64 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
1. BUSINESS
Cable London PLC, a company incorporated in the United Kingdom ("UK"), and
subsidiaries (the "Company") is principally engaged in the development,
construction, management and operation of cable telecommunications systems.
The Company holds four franchises covering Camden, Haringey,
Hackney/Islington and Enfield, England.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Accounting
The Company maintains its books and records in accordance with accounting
principles generally accepted in the UK. The consolidated financial
statements have been prepared in accordance with generally accepted
accounting principles as practiced in the United States ("US") and are
stated in UK pounds sterling ("UK Pound"). There were no significant
differences between accounting principles followed for UK purposes and
generally accepted accounting principles practiced in the US. The UK Pound
exchange rate as of December 31, 1997 and 1996 was US $1.65 and US $1.71,
respectively.
Basis of Consolidation
The consolidated financial statements include the accounts of the Company
and all wholly owned subsidiaries. All significant intercompany accounts
and transactions among the consolidated entities have been eliminated.
Management's Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Fair Values
The estimated fair value amounts presented in these notes to consolidated
financial statements have been determined by the Company using available
market information and appropriate methodologies. However, considerable
judgment is required in interpreting market data to develop the estimates
of fair value. The estimates presented herein are not necessarily
indicative of the amounts that the Company could realize in a current
market exchange. The use of different market assumptions and/or estimation
methodologies may have a material effect on the estimated fair value
amounts. Such fair value estimates are based on pertinent information
available to management as of December 31, 1997 and 1996, and have not been
comprehensively revalued for purposes of these consolidated financial
statements since such dates.
Prematurity Period
The Company accounts for costs, expenses and revenues applicable to the
construction and operation of its cable telecommunications systems under
the provisions of Statement of Financial Accounting Standards ("SFAS") No.
51, "Financial Reporting by Cable Television Companies."
Under SFAS No. 51, during the period while the systems are partially under
construction and partially in service (the "Prematurity Period"), costs of
cable telecommunications plant, including materials, direct labor and
construction overhead are capitalized. Subscriber-related costs and general
and administrative costs are expensed as incurred. Costs incurred in
anticipation of servicing a fully operating system that will not vary
regardless of the number of subscribers are partially expensed and
partially capitalized, based on the percentage of average actual or
estimated subscribers, whichever is greater, to the total number of
subscribers expected at the end of the Prematurity Period (the "Fraction").
During the Prematurity Period, depreciation and amortization of system
assets is determined by multiplying the depreciation and amortization of
the total capitalized system assets expected at the end of the Prematurity
Period by the Fraction. At the end of the Prematurity Period, depreciation
and amortization of system assets is based on the remaining undepreciated
cost at that date.
- 65 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
As of December 31, 1997, three of the Company's four franchise areas have
completed their Prematurity Period. The remaining Prematurity Period is
expected to terminate in 1998.
Property and Equipment
Property and equipment, which consists principally of system assets, is
shown at historical cost less accumulated depreciation. Improvements that
extend asset lives are capitalized; other repairs and maintenance charges
are expensed as incurred. The cost and related accumulated depreciation
applicable to assets sold or retired are removed from the accounts and the
gain or loss on disposition is recognized as a component of depreciation
expense.
System assets
Prior to the Prematurity Period, no depreciation is provided on system
assets. During the Prematurity Period, depreciation is provided in
accordance with SFAS No. 51.
Depreciation of system assets is provided by the straight-line method over
estimated useful lives as follows:
Plant 40 years
Network 15 years
Subscriber equipment 6-8 years
Switch 10 years
Computers 4 years
Non-system assets
Depreciation of non-system assets is provided by the straight-line method
over estimated useful lives as follows:
Leased buildings 40 years
Fixtures, fittings and equipment 5 years
Computers 4 years
Vehicles 3 years
Leased Assets
Assets held under capital leases are treated as if they had been purchased
outright and the corresponding liability is included in capital lease
obligations. Capital lease payments include principal and interest, with
the interest portion being expensed. Payments on operating leases are
expensed on a straight-line basis over the lease term.
Deferred Charges
Deferred charges consist primarily of franchise acquisition and development
costs directly attributable to obtaining, developing and maintaining the
franchise licenses and debt acquisition costs incurred by the Company in
entering into the London Revolver (see Note 3). Franchise acquisition and
development costs are being amortized on a straight-line basis over periods
from two to fifteen years. Debt acquisition costs are being amortized on a
straight-line basis over the term of the London Revolver of nine years.
Valuation of Long-Lived Assets
The Company periodically evaluates the recoverability of its long-lived
assets, including property and equipment and deferred charges, using
objective methodologies. Such methodologies include evaluations based on
the cash flows generated by the underlying assets or other determinants of
fair value.
Revenue Recognition
Service income is recognized as service is provided. Credit risk is managed
by disconnecting services to subscribers who are delinquent.
Income Taxes
The Company recognizes deferred tax assets and liabilities for temporary
differences between the financial reporting basis and the tax basis of the
Company's assets and liabilities and expected benefits of utilizing net
operating loss carryforwards. The impact on deferred taxes of changes in
tax rates and laws, if any, applied to the years during
- 66 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
which temporary differences are expected to be settled, are reflected in
the financial statements in the period of enactment.
Derivative Financial Instruments
The Company uses derivative financial instruments, including interest rate
exchange agreements ("Swaps") and interest rate collar agreements
("Collars"), to manage its exposure to fluctuations in interest rates.
Swaps and Collars are matched with either fixed or variable rate debt and
periodic cash payments are accrued on a settlement basis as an adjustment
to interest expense.
Those instruments that have been entered into by the Company to hedge
exposure to interest rate risks are periodically examined by the Company to
ensure that the instruments are matched with underlying liabilities, reduce
the Company's risks relating to interest rates and, through market value
and sensitivity analysis, maintain a high correlation to the interest
expense or underlying value of the hedged item.
The Company does not hold or issue any derivative financial instruments for
trading purposes and is not a party to leveraged instruments (see Note 3).
The credit risks associated with the Company's derivative financial
instruments are controlled through the evaluation and monitoring of the
creditworthiness of the counterparties. Although the Company may be exposed
to losses in the event of nonperformance by the counterparties, the Company
does not expect such losses, if any, to be significant.
Reclassifications
Certain reclassifications have been made to the prior years' consolidated
financial statements to conform to those classifications used in 1997.
3. LONG-TERM DEBT
In June 1995, the Company entered into a (UK Pound)60.0 million revolving
credit facility (the "London Facility") with various banks. The London
Facility had a two year term and an interest rate at the London Interbank
Offered Rate ("LIBOR") plus 2 1/2%. In April 1997, the amount available
under the London Facility was increased to (UK Pound)65.0 million.
In May 1997, the Company entered into a (UK Pound)170.0 million revolving
credit facility (the "London Revolver") with various banks, which converts
into a five year term loan on June 30, 2001. Interest rates on the London
Revolver are at LIBOR plus 1/2% to 2 3/8%. In May 1997, the Company repaid
all amounts outstanding under the London Facility with proceeds from
borrowings under the London Revolver. The balance of the London Revolver
will be used, subject to certain restrictions, for capital expenditures and
working capital requirements relating to the build-out of its systems.
The London Revolver contains restrictive covenants which limit the
Company's ability to enter into arrangements for the acquisition and sale
of property and equipment, investments, mergers and the incurrence of
additional debt. Certain of these covenants require that certain financial
ratios and cash flow levels be maintained and contain certain restrictions
on dividend payments. The Company's two principal shareholders' rights to
receive consulting fee payments from the Company has been subordinated to
the banks under the London Revolver. The payment of consulting fees is
restricted until the Company meets certain financial ratio tests under the
London Revolver. In addition, the Company's two principal shareholders'
shares in the Company have been pledged to secure the London Revolver. Upon
a change of control, all amounts due under the London Revolver become
immediately due and payable. On February 4, 1998, Comcast UK Cable Partners
Limited ("Comcast UK"), one the Company's principal shareholders, entered
into a definitive agreement to amalgamate (the "NTL Transaction") with a
wholly owned subsidiary of NTL Incorporated. The consummation of the NTL
Transaction will not result in a change of control as defined in the London
Revolver.
- 67 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
The Company enters into Swaps and Collars as a normal part of its risk
management efforts to limit its exposure to adverse fluctuations in
interest rates. Using Swaps, the Company agrees to exchange, at specified
intervals, the difference between fixed and variable interest amounts
calculated by reference to an agreed upon notional amount. Collars limit
the Company's exposure to and benefits from interest rate fluctuations on
variable rate debt to within a certain range of interest rates. In June
1997, the Company entered into a series of four year interest Swaps with
three banks. Under the agreements, the Company pays fixed rate interest at
7.34% and receives floating rate interest at three month LIBOR, based upon
the outstanding notional amount of the Swaps. As of December 31, 1997, the
notional amount outstanding on the Swaps was (UK Pound)44.5 million and
increased to (UK Pound)49.5 million on January 7, 1998. Also in June 1997,
the Company entered into a Collar which limits the interest rate on the
notional amount to between 6% and 9%. As of December 31, 1997, the notional
amount outstanding on the Collar was (UK Pound)22.3 million and increased
to (UK Pound)24.8 million on January 7, 1998. The notional amounts of
interest rate agreements and interest rate collar agreements are used to
measure interest to be paid or received and do not represent the amount of
exposure to credit loss. While Swaps and Collars represent an integral part
of the Company's interest rate risk management program, their incremental
effect on interest expense for the year ended December 31, 1997 was not
significant. The estimated amount to settle the Company's Swaps and Collar
was (UK Pound)1.5 million as of December 31, 1997.
Also included in long-term debt is a mortgage note payable with an
outstanding balance of (UK Pound)753,000 and (UK Pound)755,000 as of
December 31, 1997 and 1996, respectively, payable in monthly installments
through 2002 which is secured by property of the Company. The mortgage note
bears interest at a fixed rate of 9.79%.
Maturities of long-term debt outstanding as of December 31, 1997 for the
four years after 1998 are as follows ((UK Pound)000's):
1999 (UK Pound)
2000
2001 2,225
2002 8,900
The differences between the carrying amounts and estimated fair value of
the Company's long-term debt was not significant as of December 31, 1997
and 1996. Interest rates that are currently available to the Company for
debt with similar terms and remaining maturities are used to estimate fair
value for debt issues for which quoted market prices are not available.
4. CONVERTIBLE DEBT AND LOANS FROM SHAREHOLDERS
As of December 31, 1997 and 1996, the Company had outstanding convertible
debt due to shareholders of (UK Pound)42.0 million and outstanding loans
from shareholders of (UK Pound)15.0 million and (UK Pound)3.0 million,
respectively. The convertible debt and loans from shareholders bear
interest at 2% above the base lending rate of Barclays Bank PLC (9.25%
effective rate as of December 31, 1997) and are payable on demand. Accrued
interest on the convertible debt and loans from shareholders is (UK
Pound)12.0 million and (UK Pound)7.2 million as of December 31, 1997 and
1996, respectively. Under the terms of the London Revolver, principal and
interest on the convertible debt and loans from shareholders cannot be paid
until the London Revolver is repaid. Accordingly, the convertible debt,
loans from shareholders and accrued interest thereon has been classified as
long-term convertible debt and other in the Company's consolidated balance
sheet. The convertible debt, along with accrued interest thereon, is
convertible into the Company's ordinary shares at (UK Pound)2.00 per share.
Interest expense on the convertible debt and loans from shareholders was
(UK Pound)4.8 million, (UK Pound)3.3 million and (UK Pound)3.2 million
during the years ended December 31, 1997, 1996 and 1995, respectively. A
reasonable estimate of the convertible debt and loans from shareholders is
not practicable to obtain because of the related party nature of these
items and the lack of quoted market prices.
- 68 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
5. RELATED PARTY TRANSACTIONS
The Company has consulting agreements with Comcast U.K. Consulting, Inc.
("Comcast Consulting") and Telewest Communications Group Ltd., subsidiaries
of the Company's two principal shareholders, Comcast UK and Telewest
Communications plc ("Telewest"), respectively. The Company pays a fee to
Telewest each year as a contribution to the operating expenses and capital
expenditures of Telewest's Network Service Center, which provides telephony
support to the Company.
A summary of related party charges included in the Company's consolidated
financial statements is as follows (in (UK Pound)000's):
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Consulting fees (UK Pound)1,077 (UK Pound)790 (UK Pound) 962
Network Service Center fees 521 639 503
Other 355 125 33
-------------- -------------- --------------
(UK Pound)1,953 (UK Pound)1,554 (UK Pound)1,498
============== ============== ==============
</TABLE>
As of December 31, 1997 and 1996, accounts payable and accrued expenses
include (UK Pound)176,000 million and (UK Pound)1.6 million, respectively,
payable to the Company's two principal shareholders, principally for
consulting fees and normal operating expenses paid by the shareholders and
their affiliates on behalf of the Company. As of December 31, 1997 other
long-term liabilities includes (UK Pound)2.5 million of consulting fees and
interest payable to the Company's two principal shareholders as payment is
restricted under the London Revolver.
In management's opinion, the foregoing transactions were entered into on
terms no more or less favorable than those with non-affiliated third
parties.
6. INCOME TAXES
The Company has a deferred tax asset arising from the carryforward of net
operating losses and the differences between the book and tax basis of
property. However, a valuation allowance has been recorded to fully reserve
the deferred tax asset as its realization is uncertain.
Significant components of the Company's deferred income taxes are as
follows (in (UK Pound)000's):
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
Net operating loss carryforwards (carried forward indefinitely).............. (UK Pound)17,692 (UK Pound)15,852
Differences between book and tax basis of property........................... 10,426 7,329
Other........................................................................ (459) (756)
Less: Valuation allowance.................................................... (27,659) (22,425)
--------------- ---------------
(UK Pound) (UK Pound)
=============== ===============
</TABLE>
7. STATEMENT OF CASH FLOWS - SUPPLEMENTAL INFORMATION
The Company made cash payments for interest of approximately (UK Pound)7.4
million, (UK Pound)3.7 million and (UK Pound)691,000 during the years ended
December 31, 1997, 1996 and 1995, respectively.
The Company incurred capital lease obligations of (UK Pound)4.8 million,
(UK Pound)1.5 million and (UK Pound)3.9 million during the years ended
December 31, 1997, 1996 and 1995, respectively.
- 69 -
<PAGE>
CABLE LONDON PLC AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Concluded)
8. COMMITMENTS AND CONTINGENCIES
Certain of the Company's facilities and equipment are held under operating
or capital leases which expire through 2007.
A summary of assets held under capital leases are as follows (in (UK
Pound)000's):
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
System, fixtures, fittings, equipment and vehicles.......... (UK Pound)13,040 (UK Pound)8,219
Less: Accumulated depreciation.............................. (2,836) (1,523)
--------------- --------------
(UK Pound)10,204 (UK Pound)6,696
=============== ==============
</TABLE>
Future minimum rental payments under lease commitments with an initial or
remaining term of more than one year as of December 31, 1997 are as follows
(in (UK Pound)000's):
<TABLE>
<CAPTION>
Capital Operating
leases leases
<S> <C> <C>
1998........................................................ (UK Pound)1,550 (UK Pound)902
1999........................................................ 2,036 496
2000........................................................ 2,078 181
2001........................................................ 2,313 148
2002........................................................ 1,457 146
Thereafter.................................................. 7,727 955
--------------- --------------
Total minimum rental commitments............................ 17,161 (UK Pound)2,828
==============
Less: Amount representing interest.......................... (4,678)
---------------
Present value of minimum rental commitments................. 12,483
Less: Current portion of capital lease obligations.......... (732)
---------------
Long-term portion of capital lease obligations.............. (UK Pound)11,751
===============
</TABLE>
Operating lease expense for the years ended December 31, 1997, 1996 and
1995 was (UK Pound)919,000, (UK Pound)1.2 million and (UK Pound)1.1
million, respectively.
- 70 -
<PAGE>
ITEM 9 CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10 DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The Company has no executive officers. Certain officers of Comcast Consulting,
however, are deemed by the Company to be executive officers of the Company (the
"Designated Executive Officers") for purposes of US federal securities laws. The
current term of office of each of the officers expires at the first meeting of
the Board of Directors of the Company following the next Annual Meeting of
Shareholders, or as soon thereafter as each of their successors is duly elected
and qualified.
The following sets forth certain information about the Designated Executive
Officers and Directors of the Company and their ages and designated positions as
of February 28, 1998:
Ralph J. Roberts, 77, was elected as Chairman of the Board of Directors of the
Company in September 1994. Mr. Roberts has served as a Director and Chairman of
the Board of Directors of Comcast for more than five years. Mr. Roberts devotes
a major portion of his time to the business and affairs of Comcast. Mr. Roberts
has been the President and a Director of Sural Corporation ("Sural"), a
privately-held investment company and Comcast's largest shareholder, for more
than five years. Mr. Roberts is the father of Brian L. Roberts.
Julian A. Brodsky, 64, was elected to the Board of Directors of the Company in
September 1992. Mr. Brodsky has served as a Director and Vice Chairman of the
Board of Directors of Comcast for more than five years. Mr. Brodsky devotes a
major portion of his time to the business and affairs of Comcast. Mr. Brodsky
presently serves as the Treasurer and a Director of Sural. Mr. Brodsky is also a
Director of RBB Fund, Inc.
Brian L. Roberts, 38, was elected to the Board of Directors of the Company in
September 1992 and was elected President in August 1995. Mr. Roberts has served
as President and a Director of Comcast for more than five years. Mr. Roberts
devotes a major portion of his time to the business and affairs of Comcast. Mr.
Roberts presently serves as Vice President and a Director of Sural. Mr. Roberts
has sole voting power over stock representing a majority of voting power of all
Sural stock and, therefore, effectively controls Comcast and its subsidiaries.
Mr. Roberts is also a Director of At Home Corporation. Mr. Roberts is a son of
Mr. Ralph J. Roberts.
Lawrence S. Smith, 50, was elected to the Board of Directors in September 1994.
Mr. Smith was designated Executive Vice President of the Company in June 1996
and Senior Vice President-Accounting and Administration of the Company from
September 1994 to June 1996. Mr. Smith has served as Executive Vice President of
Comcast since December 1995 and as Senior Vice President-Accounting and
Administration of Comcast for more than five years prior to December 1995. Mr.
Smith is the Principal Accounting Officer of the Company and Comcast. Mr. Smith
devotes a major portion of his time to the business and affairs of Comcast. Mr.
Smith is also a Director of Teleport Communications Group, Inc. and is a
Partnership Board Representative of Sprint Spectrum Holding Company, L.P.
John R. Alchin, 49, was elected to the Board of Directors and designated Senior
Vice President and Treasurer of the Company in September 1994. Mr. Alchin has
served as Treasurer and Senior Vice President of Comcast for more than five
years. Mr. Alchin is the Principal Financial Officer of the Company and Comcast.
Mr. Alchin devotes a major portion of his time to the business and affairs of
Comcast. Mr. Alchin is also a Director of Teleport Communications Group, Inc.
Stanley L. Wang, 57, was designated Senior Vice President of the Company in
September 1992. Mr. Wang has served as Senior Vice President, Secretary and
General Counsel of Comcast for more than five years. Mr. Wang devotes a major
portion of his time to the business and affairs of Comcast.
Jonathan Perry, 58, was elected to the Board of Directors of the Company in
September 1994. Since February 1992, Mr. Perry has been the Executive Chairman
of National Home Loans Holding plc - Residential Mortgage Lender. From 1990 to
1992, Mr. Perry served as Chairman and Chief Executive of Ogilvy Adams &
Rinehart Limited. From 1988 to 1990,
- 71 -
<PAGE>
Mr. Perry formed and headed an independent corporate finance company, Perry &
Associates, which provided financial advice to a selected number of domestic and
international companies. From 1966 to 1988, Mr. Perry served in various
positions at Morgan Grenfell Group plc.
Howard H. Newman, 50, was elected to the Board of Directors of the Company in
December 1992. Mr. Newman has served as Managing Director of E.M. Warburg,
Pincus & Co., LLC since 1987. Mr. Newman is a Director of ADVO, Inc., Cox
Insurance Holdings, Plc., Newfield Exploration Company and RenaissanceRe
Holdings Ltd.
Jeffrey A. Harris, 42, was elected to the Board of Directors of the Company in
December 1992. Mr. Harris has served as Managing Director of E.M. Warburg,
Pincus & Co., LLC since 1988. Mr. Harris is a Director of Newfield Exploration
Company, Knoll, Inc., and several privately held companies.
H. Brian Thompson, 58, was elected to the Board of Directors of the Company in
September 1994. Mr. Thompson has been Chairman of the Board of Directors and
Chief Executive Officer of LCI International, Inc. since July 1991. Mr. Thompson
previously served as Executive Vice President of MCI Communications Corporation
("MCI") and held various other senior management positions at MCI from 1981 to
1991. Mr. Thompson is a Director of Microdyne Corporation and Golden Books
Family Entertainment Inc.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
requires the Company's executive officers and directors and persons who own more
than ten percent of a registered class of the Company's equity securities
(collectively, the "reporting persons") to file reports of ownership and changes
in ownership with the Securities and Exchange Commission and to furnish the
Company with copies of these reports. Based on the Company's review of the
copies of these reports received by it, and written representations received
from reporting persons, the Company believes that all filings required to be
made by the reporting persons during the year ended December 31, 1997 were made
on a timely basis.
ITEM 11 EXECUTIVE COMPENSATION
Compensation of Directors
Directors of the Company who are not employees of Comcast, Warburg, Pincus
Investors, L.P. ("Warburg Pincus") or their respective affiliates are entitled
to receive a fee of $20,000 per year, $1,500 per Board of Directors meeting
attended, $1,000 per committee meeting attended not in conjunction with a Board
of Directors meeting and $2,000 per year for serving as Chairperson of a
committee. The Company reimburses all directors for expenses incurred in
performing their duties as directors.
Compensation of Designated Executive Officers
The Company does not employ any of its Designated Executive Officers, nor does
it compensate them for their services.
Comcast, through Comcast Consulting, provides all administrative services to the
Company and provides management and consulting services to the Operating
Companies.
The Company pays Comcast and Comcast Consulting for providing management,
administrative and other services to the Company and its subsidiaries and
investees pursuant to various management agreements. Total management fees
incurred during the years ended December 31, 1997, 1996 and 1995 were (UK
Pound)3.2 million, (UK Pound)3.0 million and (UK Pound)3.1 million,
respectively.
ITEM 12 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Principal Shareholders
The following table sets forth certain information regarding the holdings of
each shareholder who was known to the Company to be the beneficial owner, as
defined in Rule 13d-3 of the Exchange Act, of more than 5% of the Company's
Class A Common Shares or Class B Common Shares at the close of business on
February 28, 1998. So far as is known
- 72 -
<PAGE>
to the Company, the persons named in the table below as beneficially owning the
shares set forth therein have sole voting power and sole investment power with
respect to such shares, unless otherwise indicated.
<TABLE>
<CAPTION>
Amount Percent Percent
Name and Address of Beneficially of of
Title of Class Beneficial Owner(1) Owned Class Vote
<S> <C> <C> <C> <C>
Class A Common Shares Snyder Capital Management, L.P.(2) 3,433,200 9.2% 2.1%
350 California Street, Suite 1460
San Francisco, CA 94104
Warburg, Pincus Investors, L.P.(3) 10,235,744 27.5% 6.2%
E.M. Warburg, Pincus & Co., LLC
Warburg, Pincus & Co.
466 Lexington Avenue
New York, NY 10017
Class B Common Shares Comcast U.K. Holdings, Inc.(4)(5) 12,872,605 100.0% 77.6%
1500 Market Street
35th Floor
Philadelphia, PA 19102-2148
- ---------------
<FN>
(1) "Beneficial ownership" is defined pursuant to regulations promulgated by
the Securities and Exchange Commission as having or sharing, directly or
indirectly, voting power and/or investment power, which includes the power
to dispose or direct the disposition of the Class A Common Shares or Class
B Common Shares indicated.
(2) The information contained in this table with respect to Snyder Capital
Management, L.P., Snyder Capital Management, Inc. and Alan Barry Snyder
(collectively, "Snyder") is based upon a filing made on Schedule 13G by
Snyder, setting forth information as of February 19, 1998. The Schedule 13G
indicates that Snyder has shared dispositive power as to 3,208,900 shares,
shared voting power as to 2,976,400 shares, and sole voting and dispositive
power as to 224,300 shares.
(3) Warburg, Pincus & Co., a New York general partnership ("WP"), is the sole
general partner of Warburg Pincus, a Delaware limited partnership. E.M.
Warburg, Pincus & Co., LLC, a New York limited liability company ("EMW
LLC"), manages Warburg Pincus. The members of EMW LLC are substantially the
same as the partners of WP. Lionel I. Pincus is the managing partner of WP
and the managing member of EMW LLC and may be deemed to control both WP and
EMW LLC. WP, as the sole general partner of Warburg Pincus, has a 20%
interest in the profits of Warburg Pincus. Messrs. Howard H. Newman and
Jeffrey A. Harris, directors of the Company, are Managing Directors and
members of EMW LLC and general partners of WP. As such, Messrs. Newman and
Harris each may be deemed to have an indirect pecuniary interest (within
the meaning of Rule 16a-1 under the Exchange Act) in an indeterminate
portion of the Class A Common Shares beneficially owned by Warburg Pincus
and WP. Each of Messrs. Newman and Harris disclaims beneficial ownership of
such Class A Common Shares within the meaning of Rule 13d-3 under the
Exchange Act.
(4) Each record holder of Class B Common Shares is entitled to ten votes per
share which constitutes approximately 77.6% of the total voting power of
all outstanding Common Shares of the Company. The 12,872,605 Class B Common
Shares are convertible into Class A Common Shares on a one-for-one basis.
100% of the Class B Common Shares, if converted to Class A Common Shares,
would represent approximately 25.7% of the voting power of Class A Common
Shares.
(5) Comcast U.K. Holdings, Inc. is a direct wholly owned subsidiary of Comcast
International Holdings, Inc. ("CIH"). CIH is a direct wholly owned
subsidiary of Comcast. At February 28, 1998, Sural owned 1,845,037 shares
of Comcast's Class A Common Stock and was the sole owner of Comcast's Class
B Common Stock outstanding. Mr. Brian L. Roberts, President and a director
of Comcast has sole voting power over stock representing a majority of
voting power of all Sural stock. Pursuant to Rule 13d-3 of the Exchange
Act, Mr. Roberts is deemed to be the beneficial owner of Comcast's Class A
Common Stock owned by Sural. Mr. Robert's beneficial ownership also
includes 2,705 shares of Comcast's Class A Common Stock owned directly and
1,356 shares of Comcast's Class A Common Stock owned by his wife, as to
which shares he disclaims beneficial ownership. Furthermore, pursuant to
Rule 13d-3 of the Exchange Act, Mr. Roberts is deemed to be the beneficial
owner of Comcast's Class B Common Stock owned by Sural. Since each share of
Comcast's Class B Common Stock is entitled to fifteen votes, the shares of
Comcast's Class A Common Stock and Comcast's Class B Common Stock owned by
Sural constitute approximately 82% of the voting power of the two classes
of Comcast's voting common stock combined. Comcast's Class B Common Stock
is convertible on a share-for-share basis into Comcast's Class A Common
Stock or Comcast's Class A Special Common Stock. If Sural were to convert
Comcast's Class B Common Stock that it
- 73 -
<PAGE>
beneficially owns into Comcast's Class A Common Stock, Mr. Roberts would
beneficially own 10,635,348 shares of Comcast's Class A Common Stock
(approximately 26% of Comcast's Class A Common Stock).
</FN>
</TABLE>
Security Ownership of Management
The following table sets forth certain information regarding the Class A Common
Shares beneficially owned by each director and Designated Executive Officer of
the Company who owns shares, and by all directors and Designated Executive
Officers of the Company as a group, at the close of business on January 31,
1998. Each of the persons named in the table below as beneficially owning the
shares set forth therein has sole voting power and sole investment power with
respect to such shares, unless otherwise indicated.
<TABLE>
<CAPTION>
Amount Beneficially
Name of Beneficial Owner Owned Percent of Class
<S> <C> <C>
John R. Alchin.......................................................... 2,000 (1)
Julian A. Brodsky....................................................... 1,000 (1)
Brian L. Roberts........................................................ 1,000 (1)
Ralph J. Roberts........................................................ 5,000 (1)
H. Brian Thompson....................................................... 1,000 (1)
All directors and Designated Executive Officers, as a
group (10 persons)................................................ 10,000 (1)
- ---------------
<FN>
(1) Less than one percent of the class.
</FN>
</TABLE>
The following table sets forth certain information regarding Comcast's Class A
Common Stock (one vote per share, par value $1.00 per share) and Comcast's Class
A Special Common Stock (generally non-voting, par value $1.00 per share)
beneficially owned by each director and Designated Executive Officer of the
Company who owns shares, and by all directors and Designated Executive Officers
of the Company as a group, at the close of business on January 31, 1998. Each of
the persons named in the table below as beneficially owning the shares set forth
therein has sole voting power and sole investment power with respect to such
shares, unless otherwise indicated.
<TABLE>
<CAPTION>
Amount Beneficially Owned(1) Percent of Class(1)
Class A Class A
Name of Beneficial Owner Class A Special Class B Class A Special Class B
<S> <C> <C> <C> <C> <C> <C>
John R. Alchin............... - 301,280(3) - (2) (2) (2)
Julian A. Brodsky............ 280,559(4) 2,076,640 - (2) (2) (2)
Brian L. Roberts............. 1,849,098(5)(6) 5,916,166(7)(8) 8,786,250(9) 5.8% 1.9% 100.0%
Ralph J. Roberts............. 319,070 5,475,505(10) 658,125 1.0% 1.7% 7.0%
Lawrence S. Smith............ - 358,448 - (2) (2) (2)
All directors and Designated
Executive Officers, as a group
(10 persons)............... 2,489,618 14,322,182 9,444,375 7.8% 4.4% 100.0%
(4)(5)(6) (3)(7)(8)(10)(11) (9)
- ---------------
<FN>
(1) With respect to each beneficial owner, the shares issuable upon exercise
of his currently exercisable options and options exercisable within 60
days of January 31, 1998 are deemed to be outstanding for the purpose of
computing the percentage of the class of common stock owned. Includes the
following shares of Comcast's Class A Special and Class B common stock for
which the named individuals, and all directors and Designated Executive
Officers as a group hold currently exercisable options or options
exercisable within 60 days of January 31, 1998: Mr. Alchin, 214,796 shares
and none; Mr. Brodsky, 1,186,568 shares and none; Mr. Brian L. Roberts,
487,832 shares and none; Mr. Ralph J. Roberts, 4,695,458 and 658,125
shares; Mr. Smith, 317,681 shares and none; and all directors and
Designated Executive Officers as a group, 7,042,050 and 658,125 shares.
(2) Less than one percent of the applicable class.
(3) Includes 15 shares of Class A Special Common Stock owned in the Comcast
Corporation Retirement-Investment Plan, as to which shares he disclaims
beneficial ownership.
- 74 -
<PAGE>
(4) Includes 33,431 shares of Class A Common Stock owned by a charitable
foundation of which he and members of his family are directors and
officers, as to which shares he disclaims beneficial ownership.
(5) Includes 1,845,037 shares of Class A Common Stock owned by Sural. See
"Principal Shareholders" note (5) for further discussion.
(6) Includes 1,356 shares of Class A Common Stock owned by his wife, as to
which shares he disclaims beneficial ownership.
(7) Includes 5,315,772 shares of Class A Special Common Stock owned by Sural.
See "Principal Shareholders" note (5) for further discussion.
(8) Includes 678 shares of Class A Special Common Stock owned by his wife,
21,024 shares owned in the Comcast Corporation Retirement-Investment Plan,
and 10,000 shares owned by a charitable foundation of which he and his
wife are directors and officers, as to all of which shares he disclaims
beneficial ownership.
(9) Includes 8,786,250 shares of Class B Common Stock owned by Sural. See
"Principal Shareholders" note (5) for further discussion.
(10) Includes 10,000 shares of Class A Special Common Stock owned by a
charitable foundation of which he and his wife are trustees and as to
which shares he disclaims beneficial ownership.
(11) Includes 15 shares of Class A Special Common Stock owned by a Designated
Executive Officer other than those named above in the Comcast Corporation
Retirement-Investment Plan, as to which shares beneficial ownership is
disclaimed.
</FN>
</TABLE>
ITEM 13 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
See "Executive Compensation - Compensation of Designated Executive Officers."
- 75 -
<PAGE>
PART IV
ITEM 14 EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following financial statements are included in Part II, Item 8:
Comcast UK Cable Partners Limited and Subsidiaries
Independent Auditors' Report...................................31
Consolidated Balance Sheet--December 31, 1997 and 1996.........32
Consolidated Statement of Operations--Years
Ended December 31, 1997, 1996 and 1995........................33
Consolidated Statement of Cash Flows--Years
Ended December 31, 1997, 1996 and 1995........................34
Consolidated Statement of Shareholders'
Equity--Years Ended December 31, 1997, 1996 and 1995..........35
Notes to Consolidated Financial Statements.....................36
Birmingham Cable Corporation Limited and Subsidiaries
Independent Auditors' Report...................................49
Consolidated Balance Sheet--December 31, 1997 and 1996.........50
Consolidated Statement of Operations--Years
Ended December 31, 1997, 1996 and 1995........................51
Consolidated Statement of Cash Flows--Years
Ended December 31, 1997, 1996 and 1995........................52
Consolidated Statement of Shareholders'
Equity--Years Ended December 31, 1997, 1996 and 1995..........53
Notes to Consolidated Financial Statements.....................54
Cable London PLC and Subsidiaries
Independent Auditors' Report...................................60
Consolidated Balance Sheet--December 31, 1997 and 1996.........61
Consolidated Statement of Operations--Years
Ended December 31, 1997, 1996 and 1995........................62
Consolidated Statement of Cash Flows--Years
Ended December 31, 1997, 1996 and 1995........................63
Consolidated Statement of Shareholders' (Deficiency)
Equity--Years Ended December 31, 1997, 1996 and 1995..........64
Notes to Consolidated Financial Statements.....................65
(b) (i) The following financial statement schedules required to be filed
by Items 8 and 14(d) of Form 10-K are included in Part IV:
Schedule I - Condensed Financial Information of Registrant
Unconsolidated (Parent Only)
Schedule II - Valuation and Qualifying Accounts
All other schedules are omitted because they are not applicable,
not required or the required information is included in the
consolidated financial statements or notes thereto.
(c) Reports on Form 8-K.
(i) The Company filed a Current Report on Form 8-K under Item 1 on
October 27, 1997 relating to the change in control of the
Registrant.
(d) Exhibits required to be filed by Item 601 of Regulation S-K:
2.l* Reorganization Agreement, dated 19 September 1994, among
Warburg, Pincus Investors, L.P., Bankers Trust Investments
PLC ("Bankers Trust"), Comcast Corporation ("Comcast"),
Comcast U.K. Holdings, Inc., ("Holdings"), the Company and
UK Cable Partners Limited ("UKCPL").
- 76 -
<PAGE>
2.2z Agreement and Plan of Amalgamation dated 4 February 1998
among NTL Incorporated, NTL (Bermuda) Limited and the
Company.
3(i)+ Memorandum of Association of the Company.
3(ii)+ Bye-laws of the Company.
4.l+ Form of Certificate for Class A Common Shares, par value (UK
Pound)0.01 per share.
4.2* Indenture dated as of 15 November 1995, between the Company
and Bank of Montreal Trust Company, as Trustee, in respect
of the Company's 11.20% Senior Discount Debentures Due 2007
(the "2007 Debentures").
4.2ax Form of certificate of the 2007 Debentures (included in
Exhibit 4.2).
10.1+ Subscription and Contribution Agreement, dated 26 October
1992, among Comcast, UKCPL, the Company, Holdings, Comcast
Cablevision of Birmingham, Inc. ("Comcast Birmingham") and
Comcast Cablevision of London, Inc.
10.2+ Shareholders Agreement, dated 11 December 1992 (the
"Shareholders Agreement"), among Holdings, UKCPL, the
Company and Comcast.
10.3+ Delegation Agreement, dated 11 December 1992 (the
"Delegation Agreement"), among LTK Consulting, Comcast and
Comcast UK Consulting, Inc. ("Comcast Consulting").
10.4+ NewCo Services Agreement, dated 11 December 1992 (the "NewCo
Services Agreement"), between the Company and Comcast UK
Cable Partners Consulting, Inc. ("UK Consulting").
10.5++ Supplemental Agreement, dated 21 June 1995, among the
Company, Comcast Consulting, Comcast, Holdings, Warburg
Pincus and UK Consulting to the NewCo Services Agreement,
the Delegation Agreement and the Shareholders Agreement.
10.6+ Memorandum of Association and Articles of Association of
Birmingham Cable Corporation Limited ("Birmingham Cable").
10.7+ Co-ownership Agreement, dated 12 March 1990, between US West
International Holdings, Inc. ("US West") and Comcast
Birmingham.
10.7a+ Letter, dated 29 April 1992, from US West to Comcast
Birmingham relating to the Co-ownership Agreement.
10.7b+ Letter, dated 6 May 1992, from US West to Comcast Birmingham
relating to the Co-ownership Agreement.
10.8+ Subscription Agreement, dated 4 May 1989, between Birmingham
Cable and US West.
10.8a+ Subscription Agreement, dated 31 May 1989, among Birmingham
Cable, US West, Compagnie Generale des Eaux ("CGE"), The
Cable Corporation Limited ("TCC") and the Standard Life
Insurance Company ("Standard Life").
10.8b+ Supplemental Subscription Agreement, dated 16 March 1990,
among Birmingham Cable, US West, CGE, TCC, Standard Life,
Comcast Birmingham and General Cable PLC ("General Cable").
10.8c+ Second Supplemental Subscription Agreement, dated 16 March
1990, among Birmingham Cable, US West, CGE, TCC, Standard
Life, Comcast Birmingham and General Cable.
10.8d+ Third Supplemental Subscription Agreement, dated 12 May
1992, among Birmingham Cable, US West, CGE, TCC, Standard
Life, Comcast Birmingham, General Cable and US West Cable
Programming Corporation.
10.8e* Agreement relating to Birmingham Cable, dated 30 March 1994,
among General Cable, CGE, Telewest Communications plc
("Telewest"), US West, United Artists Cable Television
International Holdings, Inc., the Company, Comcast, TCC,
Birmingham Cable, Birmingham Cable Limited and Standard
Life.
10.9+ Management Agreement, dated 25 April 1990 (the "Management
Agreement"), among Birmingham Cable, Birmingham Cable
Limited, US West and Comcast Birmingham.
10.9a+ Assignment Agreement, dated 27 August 1990, relating to the
Management Agreement.
10.9b+ Assignment and Amendment Agreement, dated 5 August 1992,
relating to the Management Agreement.
10.10+ Consultant Agreement, dated 17 July 1992, among Birmingham
Cable, Birmingham Cable Limited and Telewest Communications
Group Limited.
10.12+ Memorandum of Association and Articles of Association of
Cable London PLC ("Cable London").
10.13+ Consultant Agreement, dated 16 August 1989, between Cable
London and US West Cable Communications Limited.
10.14+ Consultant Agreement, dated 17 August 1989 (the "London
Consultant Agreement"), between Cable London and Comcast.
- 77 -
<PAGE>
10.14a+ Assignment Agreement, dated 14 September 1990, relating to
the London Consultant Agreement.
10.15+ Subscription Agreement, dated 10 July 1989, among Cable
London, US West, Comcast, Jerrold Samuel Nathan, Malcolm
John Gee, Sally Margaret Davis and Steven Michael Kirk.
10.16x Share Exchange Agreement, dated 4 December 1995, among
Singapore Telecom International Pte. Limited, Cambridge
Cable, the Company and Holdings.
10.17+ Share Exchange Agreement, dated 5 May 1994, between Avalon
Telecommunications L.L.C. and the Company.
10.18ss 1995 Stock Appreciation Rights Plan (1).
10.19y 1995 Stock Option Plan (1).
10.20 Loan Agreement for a (UK Pound)200,000,000 Credit Facility,
dated as of December 23, 1997, among Comcast UK Holdings
Limited and The Bank of New York and Banque Paribas as Lead
Arrangers, Barclays Capital and The Royal Bank of Scotland
PLC as co-arrangers, The Bank of New York as Agent, and the
Bank of New York as Security Trustee.
21.1 List of subsidiaries of the Company.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Deloitte & Touche - Birmingham.
23.3 Consent of Deloitte & Touche - London.
27.1 Financial Data Schedule.
99.1y Consolidated financial statements of Cambridge Holding
Company Limited (a United Kingdom corporation in the
prematurity stage) and subsidiaries as of and for the years
ended December 31, 1995 and 1994.
- ---------------
(1) Constitutes a management contract or compensatory plan or arrangement.
* Incorporated by reference to the Company's Registration Statement on Form
S-1 (file number 33-96932) declared effective November 9, 1995.
+ Incorporated by reference to the Company's Registration Statement on Form
S-1 (file number 33-76160) declared effective September 20, 1994.
++ Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995 (file number 0-24792).
ss Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995 (file number 0-24792).
x Incorporated by reference to the Company's Current Report on Form 8-K dated
January 22, 1996.
y Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995 (file number 0-24792).
- 78 -
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this Report to be signed on its
behalf by the undersigned, thereunto duly authorized on March 25, 1998.
COMCAST UK CABLE PARTNERS LIMITED
By:/s/ JOHN R. ALCHIN
JOHN R. ALCHIN
Senior Vice President and Treasurer
(Principal Financial Officer); Director
Pursuant to the requirement of the Securities Exchange Act of 1934, this Report
has been signed below by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ RALPH J. ROBERTS
RALPH J. ROBERTS Chairman of the Board of March 25, 1998
Directors; Director
/s/ BRIAN L. ROBERTS
BRIAN L. ROBERTS President (Principal March 25, 1998
Executive Officer); Director
/s/ JULIAN A. BRODSKY
JULIAN A. BRODSKY Vice Chairman of the Board March 25, 1998
of Directors; Director
/s/ LAWRENCE S. SMITH
LAWRENCE S. SMITH Executive Vice President March 25, 1998
(Principal Accounting Officer);
Director
/s/ JOHN R. ALCHIN
JOHN R. ALCHIN Senior Vice President and March 25, 1998
Treasurer (Principal Financial
Officer); Director
/s/ JONATHAN PERRY
JONATHAN PERRY Director March 25, 1998
/s/ HOWARD H. NEWMAN
HOWARD H. NEWMAN Director March 25, 1998
/s/ JEFFREY A. HARRIS
JEFFREY A. HARRIS Director March 25, 1998
/s/ H. BRIAN THOMPSON
H. BRIAN THOMPSON Director March 25, 1998
/s/ JOHN R. ALCHIN
JOHN R. ALCHIN Authorized Representative March 25, 1998
in the United States
</TABLE>
- 79 -
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
SCHEDULE I - CONDENSED FINANCIAL INFORMATION OF
REGISTRANT UNCONSOLIDATED (PARENT ONLY)
CONDENSED BALANCE SHEET
(in (UK Pound)000's, except share data)
<TABLE>
<CAPTION>
December 31,
ASSETS 1997 1996
<S> <C> <C>
Cash and cash equivalents............................................. (UK Pound)27,874 (UK Pound)56,354
Short-term investments................................................ 61,466
Other current assets.................................................. 44 15
---------------- ----------------
Total current assets................................................ 27,918 117,835
Investments in affiliates............................................. 61,363 69,472
Investments in and net amounts due from subsidiaries
eliminated upon consolidation....................................... 312,508 250,513
Deferred charges, net................................................. 5,234 6,439
Foreign exchange put options, net..................................... 7,958 10,728
---------------- ----------------
(UK Pound)414,981 (UK Pound)454,987
================ ================
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts payable and accrued expenses................................. (UK Pound)195 (UK Pound)381
Foreign exchange call options......................................... 4,086
---------------- ----------------
Total current liabilities........................................... 195 4,467
---------------- ----------------
Long-term debt........................................................ 229,150 198,087
---------------- ----------------
Foreign exchange call options......................................... 2,688 3,079
---------------- ----------------
Long-term debt, due to shareholder.................................... 11,272 10,322
---------------- ----------------
Shareholders' equity
Preferred shares, (UK Pound).01 par value - authorized, 10,000,000
shares; issued none...............................................
Class A common shares, (UK Pound).01 par value - authorized,
50,000,000 shares; issued, 37,231,997............................. 372 372
Class B common shares, (UK Pound).01 par value - authorized,
50,000,000 shares; issued, 12,872,605............................. 129 129
Additional capital.................................................. 358,548 358,548
Accumulated deficit................................................. (187,373) (120,017)
---------------- ----------------
Total shareholders' equity........................................ 171,676 239,032
---------------- ----------------
(UK Pound)414,981 (UK Pound)454,987
================ ================
</TABLE>
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION OF
REGISTRANT UNCONSOLIDATED (PARENT ONLY)
CONDENSED STATEMENT OF OPERATIONS AND ACCUMULATED DEFICIT
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
COSTS AND EXPENSES
<S> <C> <C> <C>
General and administrative................................. (UK Pound)629 (UK Pound)1,064 (UK Pound)595
Management fees............................................ 1,165 1,306 1,424
Amortization............................................... 1,126 1,135 668
----------------- ----------------- ----------------
2,920 3,505 2,687
----------------- ----------------- ----------------
OPERATING LOSS................................................ (2,920) (3,505) (2,687)
OTHER (INCOME) EXPENSE
Interest expense........................................... 24,684 23,210 3,539
Investment income.......................................... (16,608) (18,768) (11,512)
Equity in net losses of affiliates......................... 51,265 45,585 33,177
Exchange losses (gains) and other.......................... 5,095 (12,957) 1,071
----------------- ----------------- ----------------
64,436 37,070 26,275
----------------- ----------------- ----------------
NET LOSS...................................................... (67,356) (40,575) (28,962)
ACCUMULATED DEFICIT
Beginning of year.......................................... (120,017) (79,442) (50,480)
----------------- ----------------- ----------------
End of year................................................((UK Pound)187,373) ((UK Pound)120,017) ((UK Pound)79,442)
================= ================= ================
</TABLE>
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION OF
REGISTRANT UNCONSOLIDATED (PARENT ONLY)
CONDENSED STATEMENT OF CASH FLOWS
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
OPERATING ACTIVITIES
<S> <C> <C> <C>
Net loss................................................... ((UK Pound)67,356)((UK Pound)40,575)(UK Pound)28,962)
Adjustments to reconcile net loss to net cash
provided by operating activities:
Depreciation and amortization............................ 1,126 1,135 668
Amortization on foreign exchange contracts............... 2,770 2,752 (75)
Non-cash interest expense................................ 24,684 23,209 3,539
Non-cash investment income............................... (2,521) (2,854) (5,016)
Exchange losses (gains).................................. 2,852 (18,857) 944
Equity in net losses of affiliates....................... 51,265 45,585 33,177
Other.................................................... 717 19 14
--------------- --------------- ----------------
13,537 10,414 4,289
(Increase) decrease in other current assets.............. (29) 73 (3)
(Decrease) increase in accounts payable
and accrued expenses.................................. (186) 186 154
--------------- --------------- ----------------
Net cash provided by operating activities............ 13,322 10,673 4,440
--------------- --------------- ----------------
FINANCING ACTIVITIES
Proceeds from borrowings................................... 192,542
Debt acquisition costs..................................... (6,089)
Purchase of foreign exchange put options................... (13,855)
Proceeds from sales of foreign exchange call options....... 2,125 3,415
Other...................................................... (53)
--------------- --------------- ----------------
Net cash provided by financing activities............ 2,125 175,960
--------------- --------------- ----------------
INVESTING ACTIVITIES
Proceeds from sales (purchases) of short-term
investments, net......................................... 61,466 (4,226) (43,141)
Additions to deferred charges.............................. (600) (390)
Net transactions with affiliates........................... (102,668) (108,126) (79,603)
--------------- --------------- ----------------
Net cash used in investing activities................ (41,802) (112,742) (122,744)
--------------- --------------- ----------------
(DECREASE) INCREASE IN CASH AND
CASH EQUIVALENTS........................................... (28,480) (99,944) 57,656
CASH AND CASH EQUIVALENTS, beginning of year.................. 56,354 156,298 98,642
--------------- --------------- ----------------
CASH AND CASH EQUIVALENTS, end of year........................ (UK Pound)27,874 (UK Pound)56,354 (UK Pound)156,298
=============== =============== ================
</TABLE>
<PAGE>
COMCAST UK CABLE PARTNERS LIMITED AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(in (UK Pound)000's)
<TABLE>
<CAPTION>
Additions
Balance at Effect of Charged to Deductions Balance
Beginning SingTel Costs and from at End
of Year Transaction Expenses Reserves(A) of Year
Allowance for Doubtful Accounts
<S> <C> <C> <C> <C> <C>
1997............................ (UK Pound)1,338.0 (UK Pound) (UK Pound)1,488.0 (UK Pound)228.0 (UK Pound)2,598.0
1996............................ 40.0 577.0 1,325.0 604.0 1,338.0
1995............................ 8.0 32.0 40.0
</TABLE>
(A) Uncollectible accounts written off.
DATED 23rd December 1997
- -------------------------------------------------------------------------------
LOAN AGREEMENT
for a
(UK Pound)200,000,000 Credit Facility
to
COMCAST UK HOLDINGS LIMITED
THE BANK OF NEW YORK
and
BANQUE PARIBAS
Lead Arrangers
BARCLAYS CAPITAL
and
THE ROYAL BANK OF SCOTLAND PLC
Co-Arrangers
THE BANK OF NEW YORK
Agent
THE BANK OF NEW YORK
Security Trustee
Norton Rose
London
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
Clause Heading Page
<S> <C> <C>
1 Purpose and definitions.......................................................................5
1.1 Purpose..............................................................................5
1.2 Definitions..........................................................................5
1.3 Headings............................................................................22
1.4 Construction of certain terms.......................................................22
1.5 Majority Banks......................................................................23
1.6 Agent's Opinion.....................................................................23
1.7 Bank Commitments....................................................................23
2 The Facility.................................................................................24
2.1 Amount..............................................................................24
2.2 Obligations several.................................................................24
2.3 Interests several...................................................................24
3 Conditions...................................................................................25
3.1 Documents and evidence..............................................................25
3.2 General conditions precedent........................................................25
3.3 Waiver of conditions precedent......................................................25
3.4 Conditions subsequent...............................................................25
4 Advances.....................................................................................26
4.1 Tranche A and Tranche B.............................................................26
4.2 Maximum Tranche A outstandings......................................................26
4.3 Maximum Tranche B outstandings......................................................26
4.4 Maximum aggregate outstanding Advances..............................................26
4.5 Drawdown............................................................................27
4.6 Rollover............................................................................27
4.7 Conversion to Tranche A.............................................................27
4.8 Conversion to Tranche B.............................................................28
4.9 Term and Amount of Advances.........................................................28
4.10 Notification to Banks...............................................................29
4.11 Termination of Commitments..........................................................29
4.12 Repayment of Advances...............................................................29
5 Interest and Interest Periods; alternative interest rates....................................30
5.1 Normal interest rates...............................................................30
5.2 Tranche A Margin....................................................................30
5.3 Tranche B Margin....................................................................30
5.4 Conversion Margin...................................................................31
5.5 Interest Periods....................................................................31
5.6 Default interest....................................................................31
5.7 Notification of Interest Periods and interest rate..................................32
5.8 Market disruption; non-availability.................................................32
1
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5.9 Reference Bank quotations...........................................................33
6 Repayment, prepayment and cancellation.......................................................34
6.1 Repayment of the Tranche A Loan.....................................................34
6.2 Repayment of the Tranche B Loan.....................................................34
6.3 Voluntary prepayment................................................................34
6.4 Additional voluntary prepayment.....................................................34
6.5 Amounts payable on prepayment.......................................................34
6.6 Notice of prepayment................................................................35
6.7 Cancellation of Commitments.........................................................35
7 Fees and expenses............................................................................36
7.1 Fees................................................................................36
7.2 Expenses............................................................................36
7.3 Value Added Tax.....................................................................37
7.4 Stamp and other duties..............................................................37
8 Payments and Taxes; accounts and calculations................................................38
8.1 No set-off or counterclaim; distribution to the Banks...............................38
8.2 Payments by the Banks...............................................................38
8.3 Agent may assume receipt............................................................38
8.4 Non-Banking Days....................................................................38
8.5 Calculations........................................................................39
8.6 Certificates conclusive.............................................................39
8.7 Grossing-up for Taxes...............................................................39
8.8 Qualifying Banks....................................................................39
8.9 Claw-back of Tax benefit............................................................40
8.10 Bank accounts.......................................................................40
8.11 Partial payments....................................................................41
8.12 Effect of monetary union............................................................42
9 Representations and warranties...............................................................43
9.1 Repeated representations and warranties.............................................43
9.2 Further representations and warranties..............................................47
9.3 Repetition..........................................................................50
10 Subordination................................................................................51
10.1 Restricted Payments.................................................................51
11 Positive covenants...........................................................................51
11.1 Covenants...........................................................................51
12 Negative covenants...........................................................................60
12.1 Covenants...........................................................................60
13 Financial covenants..........................................................................63
13.1 Covenants...........................................................................63
13.2 Auditors certificate................................................................64
2
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13.3 Cure provisions.....................................................................64
14 Events of Default............................................................................65
14.1 Events of Default...................................................................65
14.2 Acceleration........................................................................71
14.3 On demand basis.....................................................................71
15 Indemnities..................................................................................73
15.1 Miscellaneous indemnities...........................................................73
15.2 Currency indemnity..................................................................73
15.3 Environmental indemnity.............................................................74
16 Unlawfulness and increased costs; mitigation.................................................75
16.1 Unlawfulness........................................................................75
16.2 Increased costs.....................................................................75
16.3 Exceptions..........................................................................76
16.4 Further exception...................................................................76
16.5 Mitigation..........................................................................77
17 Set-off and pro rata payments................................................................78
17.1 Set-off.............................................................................78
17.2 Pro Rata Payments...................................................................78
17.3 No release..........................................................................79
17.4 No charge...........................................................................79
18 Assignment, Substitution and Lending Offices.................................................80
18.1 Benefit and Burden..................................................................80
18.2 No Assignment by the Borrower or its Subsidiaries...................................80
18.3 Assignment by Banks.................................................................80
18.4 Substitution........................................................................80
18.5 Reliance on Substitution Certificate................................................81
18.6 Authorisation of Agent..............................................................81
18.7 Construction of certain references..................................................81
18.8 Lending offices.....................................................................81
18.9 Disclosure of information...........................................................82
18.10 Confidentiality undertaking.........................................................82
18.11 Limitation on certain obligations...................................................82
19 Arrangers, Agent and Reference Banks.........................................................83
19.1 Appointment of Agent................................................................83
19.2 Amendments to this Agreement........................................................83
19.3 Rights of Agent, Security Trustee and each Arranger as Bank; no partnership.........83
19.4 No liability of the Arrangers, the Security Trustee and Agent.......................84
19.5 Agent's duty to notify and take action..............................................84
19.6 Identity of the Banks...............................................................85
19.7 Non-reliance on the Arrangers, the Security Trustee or the Agent....................85
3
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19.8 No Responsibility on Arrangers, Security Trustee or Agent for Borrower's, etc.
performance.........................................................................85
19.9 Other dealings......................................................................86
19.10 Reimbursement and indemnity by Banks................................................86
19.11 Retirement of Agent.................................................................86
19.12 Change of Reference Banks...........................................................87
19.13 Security Documents..................................................................87
20 Notices and other matters....................................................................89
20.1 Notices.............................................................................89
20.2 Notices through the Agent...........................................................90
20.3 No implied waivers, remedies cumulative.............................................90
20.4 Counterparts........................................................................90
21 Governing law and jurisdiction...............................................................91
21.1 Law.................................................................................91
21.2 Submission to jurisdiction..........................................................91
21.3 Agent for service of process........................................................91
SCHEDULE
1 Part A - The Original Charging Subsidiaries..................................................92
Part B - The Banks and their Commitments.....................................................93
2 Part A - Form of Drawdown Notice.............................................................94
Part B - Form of Rollover Notice.............................................................96
Part C - Form of Conversion Notice...........................................................97
3 Documents and evidence required as conditions precedent......................................98
4 Calculation of Additional Cost..............................................................101
5 Form of Substitution Certificate............................................................103
6 Part A - Form of Compliance Certificate to be issued by an Authorised Officer of
the Borrower................................................................................107
Part B - Form of Compliance Certificate to be issued by the auditors of the Group...........109
7 Form of Deed of Subordination...............................................................111
8 Licences....................................................................................125
9 Barclays Encumbrances.......................................................................126
</TABLE>
4
<PAGE>
THIS AGREEMENT is dated 23rd December 1997
BETWEEN:
(1) COMCAST UK HOLDINGS LIMITED as Borrower;
(2) THE SUBSIDIARIES OF THE BORROWER set out in part A of schedule 1 as
Original Charging Subsidiaries;
(3) THE BANK OF NEW YORK and BANQUE PARIBAS as Lead Arrangers and BARCLAYS
CAPITAL and THE ROYAL BANK OF SCOTLAND PLC as Co-Arrangers;
(4) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out
in part B of schedule 1;
(5) THE BANK OF NEW YORK as Agent; and
(6) THE BANK OF NEW YORK as Security Trustee.
IT IS AGREED as follows:
1 Purpose and definitions
1.1 Purpose
This Agreement sets out the terms and conditions upon and subject to
which all of the Banks agree, according to their several obligations,
to make available to the Borrower a credit facility of up to (UK
Pound)200,000,000 to be used (i) to assist in the financing of the
capital expenditure, working capital requirements and other related
requirements necessary for the construction and operation of all the
cable telephony and television franchises of the Group, (ii) to repay
shareholder loans made to the Group as permitted under the terms of
this Agreement, (iii) in respect of Tranche B, to refinance outstanding
Advances under Tranche A as permitted by this Agreement, and (iv) to
pay the bank fees and costs incurred by the Borrower in relation to the
negotiation, preparation and execution of this Agreement and the
Security Documents.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"1998 Budget" means the budget for the Group for the period commencing
on 1 January 1998 and ending on 31 December 1998 in the agreed form;
"Additional Cost" means in relation to any period a percentage
calculated for such period at an annual rate determined by the
application of the formula set out in schedule 4;
5
<PAGE>
"Advance" means each borrowing of a portion of the Commitments by the
Borrower or (as the context may require) the principal amount of such
borrowing;
"Agent" means The Bank of New York of 46 Berkeley Street, London W1X
6AA or such other person as may be appointed agent for the Banks
pursuant to clause 19.11;
"Agreed Base Case" means the base case financial and operational
projections for the Group produced by the Borrower contained in the
Information Memorandum;
"Annual Budget" means a budget in respect of the Group for each
financial year containing information of the same type and to the same
level of detail as the 1998 Budget or containing such other information
or to such other level of detail as has, at the relevant time, been
approved in writing by the Agent acting on the instructions of the
Majority Banks;
"Arrangers" means the Lead Arrangers and the Co-Arrangers;
"Assignee" has the meaning ascribed thereto in clause 18.3;
"Associated Company" has the meaning attributed thereto in Section 416
of the Income and Corporation Taxes Act 1988;
"Authorised Officer" means that officer or officers of the Borrower
authorised to sign Compliance Certificates, Drawdown Notices, Rollover
Notices, Conversion Notices and any other notices, requests or
confirmations referred to in this Agreement or relating to the facility
granted pursuant to this Agreement;
"Banking Day" means a day (other than Saturday or Sunday) on which
dealings in Sterling deposits are carried on in the London Interbank
Market and (if payment is required to be made on such day) on which
banks are open for business in London;
"Banks" means the banks and financial institutions listed in part B of
schedule 1 and includes their successors in title, Assignees and
Substitutes;
"Barclays Encumbrances" means those encumbrances details of which are
set out in schedule 9;
"Borrowed Money" means Indebtedness (including, for the avoidance of
doubt, but without double counting, any guarantees of such
Indebtedness) in respect of (i) money borrowed or raised and debit
balances at banks, (ii) any bond, note, loan stock, debenture or
similar debt instrument, (iii) acceptance or documentary credit
facilities, (iv) receivables sold or discounted (otherwise than on a
non-recourse basis), (v) payments for assets or services acquired which
provide for such payments to be deferred for a period of 120 days or
more after the relevant assets or services were supplied, (vi) hire
purchase contracts, (vii) principal elements of rental payments under
Finance Leases, (viii) guarantees, bonds, standby letters of credit or
other instruments issued in connection with the performance of
contracts to the
6
<PAGE>
extent that the same are treated as borrowings in accordance with the
generally accepted principles and practices used in the preparation of
the most recent audited financial statements of the Group delivered to
the Agent under this Agreement and (ix) any other transaction
(including without limitation forward sale or purchase agreements and
issues of redeemable shares) having the commercial effect of a
borrowing or raising of money entered into for the purpose of financing
a person's operational or capital requirements provided that in making
any calculation of Borrowed Money under this Agreement no Indebtedness
shall be taken into account more than once;
"Borrower" means Comcast UK Holdings Limited, a company registered in
Bermuda, whose registered office is at Clarendon House, 2 Church
Street, Hamilton HM11, Bermuda;
"BT Inter-Connect Agreements" means the agreements each dated 30th
October 1996 or 26th March 1997 between Security Obligors (other than
the Borrower) and British Telecommunications plc and any other
agreements for the provision of substantially similar services on
substantially similar terms to such agreements or on terms more
beneficial to the relevant Security Obligor entered into between such
Security Obligor and British Telecommunications plc;
"Cable Systems" means the telecommunications and television systems
constructed or to be constructed in the Franchises and includes any
part of any such system and all modifications, substitutions,
replacements, renewals and extensions made to such systems;
"Charging Subsidiaries" means the Original Charging Subsidiaries and
any other company which may from time to time accede to this Agreement
and any relevant Security Documents pursuant to a Supplemental Deed;
"Co-Arrangers" means Barclays Capital (the investment banking division
of Barclays Bank PLC) of 5 The North Colonnade, Canary Wharf, London
E14 4BB and The Royal Bank of Scotland plc of Waterhouse Square,
138-142 Holborn, London EC1N 2TH;
"Comcast" means Comcast UK Cable Partners Limited, a company
incorporated in Bermuda whose registered office is at Clarendon House,
2 Church Street, Hamilton, HM11, Bermuda;
"Comcast Group" means Comcast and its Subsidiaries from time to time;
"Comcast Share Mortgage" means the mortgage of shares in the Borrower
to be entered into by Comcast in favour of the Security Trustee in the
agreed form;
"Commitment" means in relation to a Bank the amount set opposite its
name in part B of schedule 1 or, as the case may be, in any relevant
Substitution Certificate, as amended by any relevant term of this
Agreement;
7
<PAGE>
"Compliance Certificate" means either (i) a certificate substantially
in the form set out in schedule 6A in relation to the compliance (or
otherwise) with the undertakings in clause 13 issued by an Authorised
Officer in relation to Quarterly Management Accounts or (ii) a
certificate substantially in the form set out in Schedule 6B in
relation to the compliance (or otherwise) with the undertakings in
clause 13 issued by the auditors of the Group in relation to annual
financial statements;
"Consolidated Annualised Net Operating Cash Flow" means, for the Group,
twice the aggregate of the Consolidated Net Operating Cash Flow in
respect of the relevant Six Month Period for the Group;
"Consolidated Net Operating Cash Flow" means, in respect of each Six
Month Period, the Net Income of the Group (plus any depreciation,
amortisation, other non-cash expenses and non-cash taxes, interest or
other charges in respect of Borrowed Money) but excluding:
(i) any extraordinary income, as defined, at the date of this
Agreement, by Statement of Standard Accounting Practice 3
(except to the extent that the same is used to meet a related
extraordinary expense), net of any Taxes paid or payable in
respect of such income, of the Group during such Six Month
Period;
(ii) any interest income, net of any Taxes paid or payable in
respect of such income, of the Group for such Six Month
Period;
all as determined in accordance with UK GAAP used in the preparation of
and as shown in the financial statements, Monthly Management Accounts
or Quarterly Management Accounts in respect of periods within or
covering such Six Month Period prepared and delivered to the Agent
pursuant to clause 11.1(f), clause 11.1(g) or clause 11.1(h) (as the
case may be);
"Contribution" means in relation to a Bank the principal amount of the
Loan owing to such Bank at any relevant time;
"Consultant Agreement" means the consulting agreement between Cambridge
Cable Limited and Comcast U.K. Consulting, Inc dated 12th June 1992, as
amended and restated from time to time;
"Conversion Date" means the date, as specified in the relevant
Conversion Notice, on which any Advance made under Tranche A is to be
converted to an Advance under Tranche B, or vice versa, in each case in
accordance with the terms of this Agreement;
"Conversion Notice" means a notice substantially in the form of
schedule 2C;
8
<PAGE>
"Debenture" means the composite guarantee and debenture and/or several
guarantee and debentures entered into or to be entered into by the
Security Obligors in favour of the Security Trustee in the agreed form;
"Deed of Subordination" means a deed of subordination to be entered
into between Comcast and the Security Trustee or any other person and
the Security Trustee pursuant to the terms of this Agreement,
substantially in the form of schedule 7;
"Default" means any Event of Default or any event or circumstance which
with (i) the giving of any notice referred to in this Agreement, (ii)
the lapse of any period of time referred to in this Agreement or (iii)
the satisfaction of any other condition referred to in this Agreement
(or any combination of (i), (ii) and (iii) above) would constitute an
Event of Default;
"Disclosure Letter" means the letter of even date from the Borrower to
the Agent;
"Drawdown Date" means the date being a Banking Day on which an Advance
is or is to be drawn down;
"Drawdown Notice" means a notice substantially in the form of schedule
2A;
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, assignation, trust arrangement
or security interest of any kind securing any obligation of any person
or any other type of preferential arrangement (including without
limitation title transfer and/or retention arrangements having similar
effect);
"Environmental Claim" means any claim, notice of violation,
prosecution, demand, action, official warning, abatement or other order
(condition or otherwise), relating to Environmental Matters and any
notification or order requiring compliance with the terms of any
Environmental Licence or Environmental Law;
"Environmental Laws" includes all or any laws, statutes, regulations,
treaties, and judgments of any governmental authority or agency or any
regulatory body in any jurisdiction in which any member of the Group is
formed or carries on business or the European Community relating to
Environmental Matters applicable to any member of the Group and/or
construction, installation and operation of cable television and
telecommunications systems in the Franchises and/or any other
activities from time to time carried on by any member of the Group
and/or the occupation or use of any property owned, leased or occupied
by any member of the Group;
"Environmental Licence" means any permit, licence, authorisation,
consent or other approval required at any time by any Environmental Law
(but excluding, for the avoidance of doubt, planning permission, listed
building consent and building regulation approvals) for the
construction, installation and operation of cable television and
telecommunications systems in the Franchises and/or any other
activities from time to time carried on by any member of the Group;
9
<PAGE>
"Environmental Matters" means: (i) any generation, deposit, disposal,
keeping, treatment, transportation, transmission, handling or
manufacture of any waste (as defined in the Environmental Protection
Act 1990) or any Relevant Substance; (ii) nuisance, noise, defective
premises, health and safety at work or elsewhere; and (iii) the
pollution, conservation or protection of the environment (both natural
and built) or of man or any living organism supported by the
environment (both natural and built);
"Event of Default" means any of the events or circumstances described
in clause 14.1;
"Exchange Act" means the US Securities Act of 1934, as amended;
"Finance Lease" means a lease treated as a finance lease pursuant to
applicable accounting standards (including at the date of this
Agreement, Statement of Standard Accounting Practice 21);
"Franchises" means those areas in which, pursuant to the Licences, the
Group is permitted to operate a cable television network and, if a
relevant Licence has been issued at the relevant time, a cable
telecommunications network pursuant to the Licences;
"Group" means the Borrower and its Subsidiaries from time to time;
"Indebtedness" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"Indemnity" means an indemnity issued or to be issued by any member of
the Group in favour of a bank in relation to a bond issued by such bank
in favour of any regulatory body or other person pursuant to any
Telecommunications and Cable Laws;
"Information Memorandum" means the information memorandum of November
1997 prepared in relation to the Borrower and the facility granted
pursuant to this Agreement;
"Intellectual Property Rights" means any patent, trade mark, service
mark, registered design, trade name or copyright required to carry on
the business of constructing, installing or operating cable television
and telecommunication systems in the Franchises and such other business
as may be permitted by the terms of this Agreement and which is carried
on at the relevant time;
"Interest Payment Date" means the last day of an Interest Period (and,
in the case of an Interest Period of more than six months, the dates
falling at six monthly intervals from the commencement of such Interest
Period);
"Interest Period" means, in relation to any Advance, each period for
calculation of interest in respect of such Advance ascertained in
accordance with clause 5.5;
10
<PAGE>
"Lead Arrangers" means The Bank of New York of 46 Berkeley Street,
London W1X 6AA and Banque Paribas of 10 Harewood Avenue, London NW1
6AA;
"LIBOR" means, in relation to a particular period:
(a) the rate (expressed as a percentage) for deposits of Sterling for
a period equivalent to such period which appears on page 3750 of
the Telerate Service (or any page replacing page 3750) at or
about 11 a.m. on the first day of such period; or
(b) if no such quotation appears on the relevant page of the Telerate
Service, the arithmetic mean (expressed as a percentage rounded
upwards if necessary to the nearest four decimal places) of the
rates respectively quoted to the Agent by each of the Reference
Banks at the request of the Agent as such Reference Bank's
offered rate for deposits of Sterling in an amount approximately
equal to the amount in relation to which LIBOR is to be
determined for a period equivalent to such period to prime banks
in the London Interbank Market at or about 11 a.m. on the first
day of such period;
"Licences" means the licences which are set out in schedule 8 and, if
applicable, any other licences issued to any member of the Group under
any Telecommunications and Cable Laws;
"Loan" means the aggregate principal amount owing to the Banks under
this Agreement at any relevant time;
"Majority Banks" means Banks the aggregate of whose Contributions at
any relevant time exceeds 66K per cent. of the Loan or, if no Advance
is then outstanding, the aggregate of whose Commitments exceeds 66K per
cent. of the total of the Commitments of all of the Banks;
"Management Fees" means any management, consultancy or similar fees
payable by any member of the Group to any Restricted Person pursuant to
the Consultant Agreements;
"Margin" shall be calculated in accordance with clause 5.2 or 5.3 (as
applicable) provided that, for the purposes of clause 5.6, "Margin"
shall be calculated in accordance with clause 5.3 (unless the relevant
outstanding sum was outstanding under Tranche A in which event the
Margin shall be calculated in accordance with clause 5.2);
"Material Adverse Effect" means a material adverse effect on the
ability of the members of the Group (taken as a whole) to perform all
or any of their respective obligations under or otherwise comply with
the terms of this Agreement or any of the Security Documents to which
they are a party;
"Material Financial Adverse Effect" means a material adverse effect on
the ability of the members of the Group (taken as a whole) to perform
all or any of their
11
<PAGE>
respective payment obligations under this Agreement or any of the
Security Documents to which they are a party;
"month" means a period beginning in one calendar month and ending in
the next calendar month on the day numerically corresponding to the day
of the calendar month on which it started, provided that (i) if the
period started on the last Banking Day in a calendar month or if there
is no such numerically corresponding day, it shall end on the last
Banking Day in such next calendar month and (ii) if such numerically
corresponding day is not a Banking Day, the period shall end on the
next following Banking Day in the same calendar month but if there is
no such Banking Day it shall end on the preceding Banking Day and
"months" and "monthly" shall be construed accordingly;
"Monthly Management Accounts" means the monthly management accounts of
the Group to be delivered (or which may be delivered) to the Agent
pursuant to clause 11.1(h) in the agreed form or containing information
of the same type as is required by such form;
"Mortgagor" means Comcast and any other person who has charged its
interest in any shares in the Borrower to the Security Trustee;
"Necessary Authorisations" means all approvals, authorisations and
licences (other than the Licences) from, all rights granted by and all
filings, registrations and agreements with any person including,
without limitation, any government or other regulatory authority
necessary in order to enable each member of the Group to construct,
maintain and operate the Cable Systems and to carry on such other
business as may be permitted by the terms of this Agreement and which
is carried on at the relevant time;
"Net Income" means, for any period, the net profit after Taxes of the
Group arising out of the use or operation of the Cable Systems for such
period as determined in accordance with UK GAAP used in the preparation
of and as shown in the financial statements, Monthly Management
Accounts or Quarterly Management Accounts in respect of such period
prepared and delivered to the Agent pursuant to clause 11.1(f), 11.1(g)
or 11.1(h);
"Network Operating Services" means:
(a) engineering: designing, sizing and implementing trunk networks,
switches and transmissions equipment;
(b) monitoring and maintenance: monitoring switches and trunk network
for faults and providing remote maintenance in connection with
such faults where possible;
(c) provisioning: programming the switches in order to add or drop
customers and change existing services;
12
<PAGE>
(d) access billing: billing inter-connect buyers of the telecom
services and reconciling invoices from suppliers of such telecom
services; and
(e) data collection: collection of switch records and processing the
same in such a way to ensure they can be utilised by franchise
billing systems;
"Original Charging Subsidiaries" means those companies whose names,
registered numbers and registered offices are set out in part A of
schedule 1;
"Network Service Centre Agreement" means the arrangements effected
pursuant to the Agreement dated 16th May 1994 and expressed to take
effect from 1st January 1993 between TeleWest Communications Group
Limited (1) Birmingham Cable Corporation Limited (2) Cable London plc
(3) London South Cable Partnership (4) United Artists Communications
(Scotland) Venture (5) United Artists Communications (North East)
Partnership (6) United Artists Communications (Cotswolds) Venture (7)
United Artists Communications (South East) Partnership (8) Avon Cable
Joint Venture (9) The Cable Corporation Limited (10) IVS Cable Services
Limited (11) Comcast Teesside Limited (12) and others from time to time
(13) pursuant to which Network Operating Services were provided in
relation to, inter alia, the Cable Systems;
"Permitted Borrowings" means:
(i) any Borrowed Money arising hereunder or under the Security
Documents;
(ii) any Borrowed Money approved by the Agent (acting on the
instruction of the Majority Banks);
(iii)any Borrowed Money included within Permitted Intra-Group
Transactions or Permitted Guarantees;
(iv) any Borrowed Money arising under the interest rate
protection arrangements referred to in clause 11.1(y) or
clause 12.1(i);
(v) Subordinated Debt;
(vi) any Borrowed Money outstanding to any bank (which has a
credit rating from Standard & Poor's Corporation or Moody's
Investors Service Inc. of A (or its equivalent) or better)
with whom any Security Obligor has a cash management
arrangement in place provided that (a) the aggregate net
amounts of Borrowed Money outstanding to all such banks
(after taking account of deposits made by all Security
Obligors with the relevant banks) does not exceed (UK
Pound)500,000 or the excess above (UK Pound)500,000 would
not otherwise be prohibited under this Agreement and (b) the
accounts which are subject to such cash management account
arrangements are all operated on the basis of a balance
13
<PAGE>
which can fluctuate up or down on a daily basis and are not
either loan or deposit accounts (howsoever described);
(vii)any Borrowed Money arising under Indemnities not exceeding
(UK Pound)250,000 for each Franchise;
(viii) the Borrowed Money (a) of up to a principal amount of (UK
Pound)320,000 made available by Barclays Bank PLC to Anglia
Cable Communications Limited pursuant to a Business Loan
Agreement dated 28th July 1993 (as reduced in accordance
with the terms thereof) and (b) of up to a principal amount
of (UK Pound)333,110 made available by Barclays Bank PLC to
Cambridge Cable Limited pursuant to a Business Loan
Agreement dated 28th July 1993 (as reduced in accordance
with the terms thereof);
(ix) any Borrowed Money not within paragraphs (i) to (viii) above
and not exceeding at any time in aggregate (UK
Pound)25,000,000, provided that (other than in relation to
an amount not in excess of (UK Pound)3,000,000 (counted
within the aggregate limit of (UK Pound)25,000,000)) the
Borrowed Money is applied in respect of the financing of the
acquisition of switches, motor vehicles and other equipment
required in relation to the Group's business permitted to be
carried out by the terms of this Agreement;
"Permitted Disposals" means:
(i) the application of cash in (a) the acquisition of assets or
services in the ordinary course of business, or the making of
loans in the ordinary course of business not, in any such case,
prohibited by the terms of this Agreement or any Security
Document, (b) the repayment of Permitted Borrowings and the
servicing thereof provided that the same is not prohibited or
otherwise restricted by the terms of this Agreement or (c) the
making of Permitted Investments;
(ii) any disposals approved by the Agent (acting on the instructions
of the Majority Banks);
(iii)the placing of deposits with banks (which have a credit rating
from Standard & Poor's Corporation or Moody's Investor Service
Inc. of A (or its equivalent) or better) not in contravention of
the terms of this Agreement or any Security Document;
(iv) the sale of property or other assets (but excluding any ownership
interest in any Security Obligor) on bona fide arms length
commercial terms in the ordinary course of business to the extent
that the net proceeds of sale are applied forthwith after such
sale in the acquisition of assets of a similar nature and
approximately equal value to be used in the business of
constructing, installing or operating cable television and
telecommunications systems in the areas covered by the Licences
or any directly related business reasonably considered to be
financially beneficial to such business;
14
<PAGE>
(v) disposals within Permitted Intra-Group Transactions;
(vi) the disposal of assets pursuant to any sale and leaseback
transactions which are permitted by and fall within paragraph
(ix) of the definition of Permitted Borrowings; and
(vii)disposals of assets on bona fide arm's length commercial terms
by a Security Obligor (other than any disposals referred to in
paragraphs (i) to (vi) (inclusive) above) where such assets are
obsolete or no longer required for the purposes of such Security
Obligor's business;
"Permitted Encumbrances" means:
(i) any Encumbrance arising hereunder or under any of the Security
Documents;
(ii) each Barclays Encumbrance in relation only to the relevant
Borrowed Money referred to in paragraph (viii) of the definition
of Permitted Borrowings;
(iii)any Encumbrance which the Agent, acting on the instructions of
the Majority Banks, has at any time in writing agreed shall be a
Permitted Encumbrance;
(iv) any Encumbrance arising in the ordinary course of business by
operation of law;
(v) any Encumbrance in favour of any bank incurred in relation to any
cash management or interest netting arrangements;
(vi) rights of set-off arising in the normal course of business;
(vii)any retention of title of goods supplied to any Security Obligor
where such retention is agreed in the ordinary course of its
trading activities and on normal commercial terms provided that
the purchase price relating to such goods is required to be paid
within 120 days of the date on which the relevant goods are
supplied;
(viii) (for the avoidance of doubt) any Encumbrance arising under
Finance Leases where the title to the relevant assets does not
vest in any Security Obligor to the extent amounts outstanding
under such Finance Leases fall under paragraph (ix) of the
definition of Permitted Borrowings; and
(ix) any Encumbrance not within paragraphs (i) to (viii) above
provided that (a) the aggregate the Indebtedness secured by
15
<PAGE>
Encumbrances permitted under this paragraph (ix) shall not exceed
(UK Pound)25,000,000 and (b) (other than in relation to secured
Indebtedness not in excess of (UK Pound)3,000,000 (counted within
the aggregate limit of (UK Pound)25,000,000)) the Encumbrance is
provided in respect of the financing of the acquisition of
switches, motor vehicles and other equipment required in relation
to the Group's business permitted to be carried out by the terms
of this Agreement;
"Permitted Guarantees" means:
(i) any guarantees or indemnities arising hereunder or under the
Security Documents;
(ii) any guarantees or indemnities approved by the Agent (acting on
the instructions of the Majority Banks);
(iii)any guarantees or indemnities included within Permitted
Intra-Group Transactions;
(iv) any guarantees or indemnities included within Permitted
Borrowings;
(v) guarantees of (a) Cambridge Cable Limited given in favour of
Barclays Bank PLC dated 23rd September 1993 in relation only to
the relevant Borrowed Money referred to in paragraph (viii)(a) of
the definition of Permitted Borrowings and (b) Anglia Cable
Communications Limited given in favour of Barclays Bank PLC dated
23rd September 1993 in relation only to the relevant Borrowed
Money referred to in paragraph (viii)(b) of the definition of
Permitted Borrowings;
(vi) any guarantees or indemnities not included in paragraphs (i)-(v)
(inclusive) above provided that (a) the maximum liability
thereunder (actual or contingent) when aggregated with amounts
outstanding as Borrowed Money permitted by virtue of paragraph
(ix) of the definition of Permitted Borrowings do not exceed in
aggregate (UK Pound)25,000,000 and (b) (other than in relation to
liabilities thereunder (actual or contingent) not in excess of
(UK Pound)3,000,000 (counted within the aggregate limit of (UK
Pound)25,000,000)) the guarantee or indemnity is provided in
respect of the financing of the acquisition of switches, motor
vehicles and other equipment required in relation to the Group's
business permitted to be carried out by the terms of this
Agreement;
"Permitted Intra-Group Transactions" means:
(i) loans made by a Security Obligor to another Security Obligor;
(ii) any transaction approved as a Permitted Intra-Group Transaction
by the Agent (acting on the instructions of the Majority Banks);
16
<PAGE>
(iii)the payment or declaration of any dividend, return on capital,
repayment of capital contributions or other distributions by any
Security Obligor to a shareholder which is a Security Obligor;
(iv) the purchase, acquisition, sale or disposal of assets or revenues
(including, without limitation, the acquisition of any business
or interest therein) by a Security Obligor from or, as the case
may be, to another Security Obligor provided such assets or
revenues remain charged to the Security Trustee pursuant to a
Security Document;
(v) the purchase, subscription for, or other acquisition of any share
(or other securities or any interest therein) in any Security
Obligor by any other Security Obligor provided such shares remain
charged to the Security Trustee pursuant to a Security Document;
(vi) the subscription for shares in any company on its formation or
the purchase of shares in any company which has not at any time
carried on any business (other than that associated with its
formation or any necessary administrative activities) provided
that (a) such shares are charged to the Security Trustee pursuant
to a Security Document and (b) promptly upon such subscription or
purchase being completed such company becomes a Charging
Subsidiary pursuant to the provisions of this Agreement; and
(vii)in relation to the ordinary course of trading, the giving by any
Security Obligor of any guarantee, bond or indemnity in respect
of the liabilities or obligations of any other Security Obligor;
"Permitted Investments" means:
(i) any transaction included within Permitted Disposals;
(ii) any transaction included within Permitted Intra-Group
Transactions; and
(iii)any investments approved by the Agent (acting on the
instructions of the Majority Banks);
(iv) any transaction not within paragraphs (i) to (iii) (inclusive)
above which would otherwise be prohibited under clause 12.1(g)
where the value of the aggregate net consideration (in cash or
otherwise) paid by members of the Group does not exceed (UK
Pound)1,000,000 in aggregate in respect of all such transactions;
"Permitted Payments" means any payments or transfers of assets
(including Value Added Tax thereon, if applicable):
(a) consisting of the payment of Restricted Payments by the
Borrower or any Security Obligor to Comcast on the first
Drawdown Date, provided that following such payments the
aggregate amount of (x) the paid up equity share capital of
17
<PAGE>
the Borrower and (y) all Borrowed Money arising under
intercompany loans made by Comcast to members of the Group
which have been assigned to the Borrower, exceeds (UK
Pound)300,000,000; and
(b) to any Restricted Person in relation to transactions carried
out on bona fide arm's length commercial terms in the ordinary
course of business not exceeding (UK Pound)500,000 in any
financial year of the Group;
"Principal Agreements" means the BT Inter-Connect Agreements together
with any agreements replacing any of the same;
"Qualifying Bank" means a person:
(a) which is a "bank" as defined in section 840A of the Income and
Corporation Taxes Act 1988 and is within the charge to UK
Corporation Tax as regards any interest received by it under this
Agreement and which is beneficially entitled to that interest but
so that if section 840A or section 349(3)(a) of such Act is
amended or repealed, this definition shall be amended in such
manner as the Agent, after consultation with the Borrower, shall
determine to be necessary in order to define persons of the
relevant equivalent category to whom the Borrower may make
payments hereunder without any obligation to make any deduction
or withholding in respect of Taxes; or
(b) is resident for the purposes of the relevant double tax treaty in
a state which has concluded a double tax treaty with the United
Kingdom in force at the date hereof (or in relation to a person
which becomes a party to this Agreement) which provides that
interest arising in the United Kingdom which is paid to a
resident of the other contracting state shall be taxable only in
that other state; and
(i) does not become a party to this Agreement through a
permanent establishment in the United Kingdom; and
(ii) has agreed to co-operate, and does so co-operate, with the
Borrower with a view to submitting any forms required for
the purpose of ensuring the application of such double tax
treaty as aforesaid to payments of interest hereunder;
"Quarter Days" means 31st March, 30th June, 30th September and 31st
December in any year;
"Quarterly Management Accounts" means the quarterly management accounts
of the Group to be delivered to the Agent pursuant to clause 11.1(g) in
the agreed form or containing information of the same type as is
required by such form;
"Quarterly Period" means each period of approximately three months
commencing on the day after a Quarter Day and ending on the next
following Quarter Day;
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<PAGE>
"Reference Banks" means the principal London offices of The Bank of New
York, Banque Paribas, Barclays Bank PLC and The Royal Bank of Scotland
plc and/or any other Bank appointed as such pursuant to clause 19.12;
"Relevant Substance" means (i) any radioactive emissions, (ii)
electricity and any electrical or electromagnetic emissions and (iii)
any substance whatsoever (whether in a solid or liquid form or in the
form of a gas or vapour and whether alone or in combination with any
other substance) which is capable of causing harm to man or any other
living organism supported by the environment (both natural and built),
or damaging the environment (both natural and built) or public health
or welfare;
"Restricted Payment" means (a) any direct or indirect distribution,
dividend, loan or other payment (whether in cash, property, securities
or otherwise) by any member of the Group (including, without
limitation, any payment on account of the share capital of the Borrower
or capital stock or other securities of the Borrower) or any interest
thereon, (b) any transfer of any assets by any member of the Group, (c)
any payment (whether in cash, property, securities or otherwise) of
principal of, or interest on, Indebtedness, in each case to any
Restricted Person and (d) any Management Fees;
"Restricted Person" means (i) Comcast or the Ultimate Shareholder or
(ii) any Subsidiary or Associated Company of Comcast or the Ultimate
Shareholder or any partnership in which Comcast or the Ultimate
Shareholder or any of their Subsidiaries or Associated Companies is a
partner (either directly or through any intermediate partnerships) or
(iii) any person of which Comcast or the Ultimate Shareholder is a
Subsidiary or Associated Company or any partnership in which any such
person is a partner (either directly or through immediate partnerships)
or (iv) any Subsidiary of the Borrower which is not a Security Obligor
but no Security Obligor will be a Restricted Person for the purposes of
this Agreement;
"Revolving Facility" means the revolving loan facility granted to the
Borrower pursuant to this Agreement;
"Revolving Period" means:
(a) in relation to Tranche A, the period from (and including) the
date hereof to (and including) 31 December 2000; and
(b) in relation to Tranche B, the period from (and including) the
date hereof to (and including) 31 January 2001;
"Rollover Notice" means a notice substantially in the form of schedule
2B;
"SEC" means the US Securities and Exchange Commission;
"Security Documents" means the Debenture, the Deed of Subordination,
the Security Trust Deed, any Supplemental Deed, the Comcast Share
Mortgage and all other mortgages, charges, guarantees, indemnities and
other instruments from time to time entered into in favour of the
19
<PAGE>
Agent, the Security Trustee and/or the Banks by way of guarantee or
other assurance of and/or security for amounts owed to any of the
Beneficiaries (as defined in the Security Trust Deed);
"Security Obligor" means each of the Borrower, the Subsidiaries of the
Borrower whose names, registered numbers and registered offices are set
out in part A of schedule 1 and any other Subsidiary of the Borrower
which becomes a party to this Agreement, the Debenture and the Security
Trust Deed pursuant to a Supplemental Deed;
"Security Trust Deed" means the security trust deed to be entered into
between the Borrower, the Original Charging Subsidiaries, Comcast, the
Agent, the Security Trustee, the Arrangers, the Bond Providers referred
to therein and the Interest Rate Beneficiaries referred to therein;
"Security Trustee" means The Bank of New York of 46 Berkeley Street,
London W1X 6AA and/or such other person as may be appointed as security
trustee pursuant to any Security Document (as the context requires);
"Share Mortgage" means the Comcast Share Mortgage and any other share
mortgage over shares in the Borrower in favour of the Security Trustee;
"Six Month Period" means each period of six months ending on the last
day of a calendar month;
"Sterling" and "(UK Pound)" mean the lawful currency for the time being
of the United Kingdom and in respect of all payments to be made under
this Agreement in Sterling means immediately available, freely
transferable cleared funds;
"Subscriber" means a person who has entered into an agreement (which
has not expired or been terminated) (a "Subscriber's Agreement") with a
member of the Group to be provided with services by a member of the
Group through the operation of the Cable Systems;
"Subordinated Creditor" means any person who has, at any relevant time,
entered into a Deed of Subordination;
"Subordinated Debt" means, at any relevant time, all Borrowed Money of
the Group owed to a Subordinated Creditor;
"Subsidiary" of a person means (a) any company or entity directly or
indirectly controlled by such person, for which purpose "control" means
either ownership of more than 50 per cent. of the voting share capital
(or equivalent right of ownership) of such company or entity or power
to direct its policies and management whether by contract or otherwise
or the right to receive more than 50 per cent. of any distributions (of
whatever nature) made in respect of the share capital or other
ownership interests of such company or entity and (b) (for the purposes
of clause 13 and the preparation of the accounts referred to in clauses
20
<PAGE>
11.1(f), (g) and (h)) in the case of a company incorporated in England
and Wales or Scotland, a Subsidiary Undertaking;
"Subsidiary Undertaking" has the meaning given to such term in section
258 Companies Act 1985;
"Substitute" has the meaning ascribed thereto in clause 18.4;
"Substitution Certificate" means a certificate substantially in the
form of schedule 5;
"Supplemental Deed" means a deed supplemental to this Agreement and the
Debenture executed, inter alios, by a Subsidiary of the Borrower in the
form of schedule 7 to the Debenture or in such other form as is agreed
between the Agent and the Borrower whereby such Subsidiary becomes a
party to this Agreement as a Security Obligor and to the Debenture as a
Charging Subsidiary;
"Taxes" includes all present and future taxes, levies, imposts, duties,
fees or charges of a similar nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"Telecommunications and Cable Laws" means the Telecommunications Act
1984, the Cable and Broadcasting Act 1984, the Broadcasting Act 1990
and all other laws, statutes, regulations and judgements relating to
telecommunications or cable television applicable to any member of the
Group, and/or the business carried on by, any member of the Group (for
the avoidance of doubt, not including laws, statutes, regulations or
judgments relating solely to consumer credit, data protection or
intellectual property);
"Term" means, in relation to an Advance, the period for which such
Advance is or is to be made, as specified in the Drawdown Notice or
Rollover Notice for such Advance, or as otherwise determined in
accordance with the provisions hereof;
"Term Date" means, in relation to an Advance, the last day of the Term
of such Advance;
"Total Commitments" means at any relevant time the total of the
Commitments of all the Banks at such time;
"Total Debt" means all Borrowed Money of the Group excluding any
Subordinated Debt;
"Total Debt Interest Charges" means, in relation to any period, the
total amount of all interest, fees and commissions accruing in respect
of Total Debt during such period;
"Tranche A" means that part of the Facility made available to the
Borrower under this Agreement which is referred to herein as such;
21
<PAGE>
"Tranche A Loan" means the aggregate principal amount of all Advances
made under Tranche A which are, at the relevant time, outstanding under
Tranche A;
"Tranche B" means that part of the Facility made available to the
Borrower under this Agreement which is referred to herein as such;
"Tranche B Loan" means the aggregate principal amount of all Advances
made under Tranche B which are, at the relevant time, outstanding under
Tranche B;
"UK GAAP" means generally accepted accounting principles and practices
in the United Kingdom;
"US GAAP" means generally accepted accounting principles and practices
in the United States of America; and
"Ultimate Shareholder" means Comcast Corporation.
1.3 Headings
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
In this Agreement, unless the context otherwise requires:
(a) reference to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement
and references to this Agreement include its schedules;
(b) reference to (or to any specified provision of) this Agreement or
any other document shall be construed as references to this
Agreement, that provision or that document as in force for the
time being and as from time to time amended in accordance with
the terms thereof, or, as the case may be, with the agreement of
the relevant parties and (where such consent is, by the terms of
this Agreement or the relevant document required to be obtained
as a condition to such amendment being permitted) the prior
written consent of the Agent, all of the Banks or the Majority
Banks (as the case may be);
(c) reference to a "regulation" includes any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any agency,
authority, central bank or government department or any
self-regulatory or other national or supra-national authority;
(d) words importing the plural shall include the singular and vice
versa;
(e) reference to a time of day are to London time;
22
<PAGE>
(f) references to a person shall be construed as including references
to an individual, firm, company, corporation, unincorporated body
of persons or any State or any agency thereof and that person's
successors in title;
(g) reference to a document "in the agreed form" means in the form of
a draft of such document initialled by way of identification by
the Agent and the Borrower;
(h) references to a "guarantee" include references 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;
(i) references to any enactment shall be deemed to include reference
to such enactment as re-enacted, amended or extended; and
(j) references to "business" in relation to any member of the Group
mean the construction, installation, operation and utilisation of
cable television and/or telecommunications systems in the
Franchises and/or any business directly related thereto and
reasonably considered to be financially beneficial to such
business, and references to "ordinary course of business" in
relation to any member of the Group shall be similarly construed.
1.5 Majority Banks
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken
on the instructions of the Majority Banks, such opinion, consent,
request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all of
the Banks shall have received appropriate prior notice of the matter on
which such opinion, consent, request or instructions are required to be
obtained and the relevant number of Banks shall have given or issued
such opinion, consent, request or instructions but the Borrower and
each other Security Obligor shall be entitled (and bound) to assume
that such notice shall have been duly received by each Bank and that
the relevant majority shall have been obtained to constitute Majority
Banks whether or not this is in fact the case.
1.6 Agent's Opinion
Where this Agreement provides for the Agent's opinion to determine
whether any matter would or is reasonably likely to have a Material
Financial Adverse Effect, a Material Adverse Effect and/or a material
adverse effect, as the case may be, the Agent shall act in accordance
with the instructions of the Majority Banks (acting reasonably) in
making such determination.
1.7 Bank Commitments
For the purpose of the definition of "Majority Banks" in clause 1.2 and
of clause 19.10 references to the Commitment of a Bank shall, if the
Total Commitments have, at any relevant time, been reduced to zero, be
deemed to be a reference to the Commitment of that Bank immediately
prior to such reduction to zero.
23
<PAGE>
2 The Facility
2.1 Amount
The Banks, relying upon each of the representations and warranties in
clause 9 and in the Security Documents, agree to lend to the Borrower
by way of Advances upon and subject to the terms of this Agreement the
principal sum of up to (UK Pound)200,000,000. The obligation of each
Bank under this Agreement shall be to contribute that proportion of
each Advance which, as at the Drawdown Date of such Advance, its
Commitment bears to the Total Commitments.
2.2 Obligations several
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
other Bank, the Arrangers, the Agent, the Security Trustee or any
member of the Group of any of their respective obligations or
liabilities under this Agreement nor shall the Agent, the Arrangers or
the Security Trustee be responsible for the obligations of any Bank
(except for its own obligations, if any, as a Bank) nor shall any Bank
be responsible for the obligations of any other Bank under this
Agreement.
2.3 Interests several
Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by
the Majority Banks) the interests of the Agent, the Arrangers, the
Security Trustee and the Banks are several and the amount due to the
Agent (for its own account), to each Arranger, to the Security Trustee
and to each Bank is a separate and independent debt. The Agent, each
Arranger, the Security Trustee and each Bank shall have the right to
protect and enforce its rights arising out of this Agreement and it
shall not be necessary for the Agent, any Arranger, the Security
Trustee or any Bank (as the case may be) to be joined as an additional
party in any proceedings for this purpose.
24
<PAGE>
3 Conditions
3.1 Documents and evidence
The obligations of each Bank to make its Commitment available shall be
subject to the condition that the Agent, or its duly authorised
representative, shall have received the documents and evidence
specified in schedule 3 in form and substance satisfactory to the Agent
not later than two Banking Days before the day on which the Drawdown
Notice in respect of the first Advance is given. The Agent shall notify
the Banks of receipt of such Drawdown Notice and whether or not the
form and substance of such documents are satisfactory to the Agent.
3.2 General conditions precedent
The obligation of each Bank to contribute to any Advance is subject to
the further conditions that at the time of the giving of a Drawdown
Notice for, and at the time of the making of, such Advance:
(a) the representations and warranties referred to in clause 9.3,
including those deemed to be made by the Borrower pursuant to
such clause, being (subject as provided in clause 9.3) true
and correct as of each such time as if each was made with
respect to the facts and circumstances existing at such time;
and
(b) no Default shall have occurred and be continuing which has not
been remedied or expressly waived or would result from the
making of such Advance.
Without prejudice to the provisions of clause 14, the provisions of
this clause 3.2 shall not apply to any Advance requested by a Rollover
Notice for a Term of one month (the "New Advance"), which is to be made
on the Term Date of another Advance the amount of which is equal to or
greater than the New Advance.
3.3 Waiver of conditions precedent
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of all of the Banks in respect of the first Advance and on
the instructions of the Majority Banks in respect of subsequent
Advances without prejudicing the right of the Agent acting on such
instructions to require fulfilment of such conditions in whole or in
part in respect of any other Advance.
3.4 Conditions subsequent
The Borrower undertakes to procure that on or before 30th April, 1998,
Southern East Anglia Cable Limited obtains a licence under the
Telecommunications Act 1984 to operate a telecommunications network in
the area covered by local delivery licence (LDS 012) issued to Southern
East Anglia Cable Limited on 19th January 1997 and provides a certified
copy of the same to the Agent.
25
<PAGE>
4 Advances
4.1 Tranche A and Tranche B
Subject to the terms and conditions of this Agreement, Advances may be
made, at the option of the Borrower, under either Tranche A or Tranche
B.
4.2 Maximum Tranche A outstandings
The aggregate principal amount of Advances outstanding under Tranche A
on any day falling within the period set out in column (1) below shall
not exceed the amount set out against such period in column (2) below
and no Advance shall be made under Tranche A if, following the making
of such Advance, such limit would be exceeded:
<TABLE>
<CAPTION>
(1) (2)
<S> <C>
Period Maximum aggregate principal amount of
outstanding Advances under Tranche A
up to (and including) 31 March 2000 (UK Pound)90,000,000
from 1 April 2000 to (and including) 30 June (UK Pound)60,000,000
2000
from 1 July 2000 to (and including) 30 (UK Pound)40,000,000
September 2000
from 1 October 2000 to (and including) 31 (UK Pound)20,000,000
December 2000
from 1 January 2001 and thereafter nil
</TABLE>
4.3 Maximum Tranche B outstandings
The aggregate principal amount of Advances outstanding under Tranche B
on any day falling within the period from the date of this agreement to
(and including) 31 January 2001 shall not exceed the amount calculated
by multiplying Consolidated Annualised Net Operating Cash Flow
(determined by reference to the most recently delivered Monthly
Management Accounts) at such time by 6.5 and no Advances shall be made
under Tranche B if, following the making of such Advance, such limit
would be exceeded.
4.4 Maximum aggregate outstanding Advances
The aggregate principal amount of the Loan shall not at any time exceed
(UK Pound)200,000,000 and no Advance shall be made under this Agreement
if, following the making of such Advance, such limit would be exceeded.
26
<PAGE>
4.5 Drawdown
Subject to the terms and conditions of this Agreement an Advance will
be made to the Borrower following receipt by the Agent from the
Borrower of a Drawdown Notice signed by an Authorised Officer not later
than 10 a.m. on the second Banking Day before the proposed Drawdown
Date. A Drawdown Notice shall be effective on actual receipt by the
Agent and, once given, shall, subject as provided in clause 5.8(a), be
irrevocable. No Drawdown Notice may be given in respect of an amount
which is the subject of a notice received by the Agent under clause
6.7.
4.6 Rollover
Subject to the terms and conditions of this Agreement, if the Borrower
wishes to draw an Advance under Tranche A or Tranche B on any day (the
"Relevant Day") of an amount of not more than the amount of an Advance
which is due to be repaid on the Relevant Day in accordance with clause
4.12, the Borrower shall not be obliged to serve a Drawdown Notice in
relation to such new Advance but may serve a Rollover Notice signed by
an Authorised Officer specifying the amount of the new Advance and the
Term thereof and whether such new Advance is to be made under Tranche A
or Tranche B. A Rollover Notice shall be effective on actual receipt by
the Agent (which must be no later than 10 a.m. on the second Banking
Day before the Relevant Day) and, once given, shall, subject as
provided in clause 5.8(a), be irrevocable. No Rollover Notice may be
given in respect of an amount which is the subject of a notice received
by the Agent under clause 6.7.
4.7 Conversion to Tranche A
The Borrower may at any time during the Revolving Period relating to
Tranche A convert all or any of the outstanding Advances made to the
Borrower under Tranche B so that such Advances are outstanding under
Tranche A, in each case with effect from the relevant Conversion Date,
following receipt by the Agent of a Conversion Notice signed by an
Authorised Officer not later than 10 a.m. on the second Banking Day
before the proposed Conversion Date. A Conversion Notice under this
clause 4.7 shall be effective on actual receipt by the Agent and once
given shall be irrevocable. Each Conversion Notice given under this
clause 4.7 shall contain a confirmation that, on the relevant
Conversion Date, the Borrower will be in compliance with the provisions
of clause 4.2, having taken into account such conversion. No Tranche B
Advance may be converted to a Tranche A Advance if either (i) such
Tranche B Advance became a Tranche B Advance as a result of conversion
from a Tranche A Advance during the then current Interest Period or
(ii) the most recent conversion of a Tranche B Advance to a Tranche A
Advance took place within one month prior to the date of the proposed
conversion (but this sub-clause (ii) shall not restrict the conversion
of more than one Tranche B Advance to a Tranche A Advance on any one
day).
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<PAGE>
4.8 Conversion to Tranche B
The Borrower may at any time during the Revolving Period relating to
Tranche A convert all or any of the outstanding Advances made to the
Borrower under Tranche A so that such Advances are outstanding under
Tranche B with effect from the relevant Conversion Date, following
receipt by the Agent of a Conversion Notice signed by an Authorised
Officer not later than 10 a.m. on the second Banking Day before the
proposed Conversion Date. A Conversion Notice under this clause 4.8
shall be effective on actual receipt by the Agent and once given shall
be irrevocable. Each Conversion Notice under this clause 4.8 shall
contain a confirmation that, on the relevant Conversion Date, the
Borrower will be in compliance with the provisions of clause 4.3,
having taken into account such conversion. No Tranche A Advance may be
converted to a Tranche B Advance if either (i) such Tranche A Advance
became a Tranche A Advance as a result of conversion from a Tranche B
Advance during the then current Interest Period or (ii) the most recent
conversion of a Tranche A Advance to a Tranche B Advance took place
within one month prior to the date of the proposed conversion (but this
sub-clause (ii) shall not restrict the conversion of more than one
Tranche A Advance to a Tranche B Advance on any one day).
4.9 Term and Amount of Advances
(a) Advances may be made only on Banking Days falling within the
relevant Revolving Period and may be borrowed only for a Term of
one month or two, three or six months or (with the prior
agreement of all of the Banks) any other period in any such case
ending not later than the last day of the relevant Revolving
Period; provided that any Advances made less than one month prior
to the last day of the relevant Revolving Period may only be
borrowed for the period up to and ending on such date;
(b) each Advance shall be of either (i) (UK Pound)3,000,000 or any
larger sum which is an integral multiple of (UK Pound)1,000,000
or (ii) the remaining available facility under Tranche A or
Tranche B (as applicable);
(c) no Advance may be drawn down under Tranche A and no Advance drawn
down under Tranche B may be converted to Tranche A on any day if
the making of such Advance or such conversion would cause the
limits contained in either clause 4.2 or clause 4.4 to be
exceeded;
(d) no Advance may be drawn down under Tranche B and no Advance drawn
down under Tranche A may be converted to Tranche B on any day if
the making of such Advance or such conversion would cause the
limits contained in either clause 4.3 or clause 4.4 to be
exceeded; and
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(e) no Advance may be drawn down if, as a result, there would be more
than six Advances then outstanding.
4.10 Notification to Banks
On the date of receipt of a Drawdown Notice or a Rollover Notice
complying with the terms of this Agreement the Agent shall notify each
Bank thereof, of the date on which such Advance is to be made, the Term
thereof and whether such Advance is to be made under Tranche A or
Tranche B. Subject to the provisions of clauses 3 and 4.12, on the date
for the making of the relevant Advance each of the Banks shall make
available to the Agent its portion of such Advance in accordance with
clause 8.2. On the date of receipt of a Conversion Notice complying
with the terms of this Agreement the Agent shall notify each Bank
thereof and of the Conversion Date and whether under Tranche A or
Tranche B and the amount which is the subject of such Conversion
Notice.
4.11 Termination of Commitments
Any part of the Commitments undrawn and uncancelled at the end of the
relevant Revolving Period shall thereupon be automatically reduced to
zero.
4.12 Repayment of Advances
The Borrower agrees to repay each Advance in respect of which the Term
Date is before the last day of the relevant Revolving Period on such
Term Date. If an Advance (the "new Advance") is to be made to the
Borrower on a day on which another Advance made to the Borrower (the
"maturing Advance") is due to be repaid then, subject to the terms of
this Agreement and so long as the applicable conditions referred to in
clause 3.2 and clause 4.9 shall have been satisfied in relation to the
new Advance, (i) the maturing Advance shall be deemed to have been
repaid on its Term Date either in whole (if the new Advance is equal to
or greater than the maturing Advance) or in part (if the new Advance is
less than the maturing Advance) and the Borrower shall only be obliged
to repay the principal amount by which the maturing Advance exceeds the
new Advance and (ii) to the extent that the maturing Advance is so
deemed to have been repaid, the principal amount of the new Advance to
be made on such date shall be deemed to have been credited to the
account of the Borrower by the Agent on behalf of the Banks in
accordance with the terms of this Agreement and the Banks shall only be
obliged to make available to the Borrower pursuant to clause 4.10 a
principal amount (if any) equal to the amount by which the new Advance
exceeds the maturing Advance.
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5 Interest and Interest Periods; alternative interest rates
5.1 Normal interest rates
The Borrower agrees to pay interest on each Advance in respect of each
Interest Period relating thereto on each Interest Payment Date at the
rate per annum determined by the Agent to be the aggregate of (a) the
applicable Margin, (b) the Additional Cost and (c) LIBOR.
5.2 Tranche A Margin
The Margin in relation to any Advance made under Tranche A shall be
determined as follows:
(a) so long as the Tranche A Loan is greater than or equal to (UK
Pound)70,000,000, the Margin in respect of all Tranche A
Advances outstanding during such period shall be 2.250 per
cent. per annum; and
(b) so long as the Tranche A Loan is less than (UK
Pound)70,000,000, the Margin in respect of all Tranche A
Advances outstanding during such period shall be 2.000 per
cent. per annum.
5.3 Tranche B Margin
The Margin in relation to any Advance made under Tranche B shall
(subject to the proviso below) be the rate set out in column (1) below
against the ratio of the Tranche B Loan to Consolidated Annualised Net
Operating Cash Flow set out in column (2) below as shown in the most
recently delivered Monthly Management Accounts of the Group delivered
to the Agent under this Agreement prior to the first day of the
relevant Interest Period:
<TABLE>
<CAPTION>
<S> <C>
(1) (2)
Rate (per cent. per annum) Ratio of the Tranche B Loan to Consolidated
Annualised Net Operating Cash Flow
---------------------------------------- ------------------------------------------------
1.875 greater than or equal to 6.0:1
1.500 less than 6.0:1 but greater than or equal to
5.0:1
1.250 less than 5.0:1 but greater than or equal to
4.5:1
1.000 less than 4.5:1 but greater than or equal to
4.0:1
0.875 less than 4.0:1 but greater than or equal to
3.0:1
0.500 less than 3.0:1
</TABLE>
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<PAGE>
provided that if on the first day of the relevant Interest Period the
Borrower has failed to deliver any relevant financial statements then
due under this Agreement within the time period for the Borrower so to
deliver such financial statements, then the Margin for such Advance
during such Interest Period shall from (and including) the last day
upon which such financial statements were due to (but excluding) the
date of delivery of such financial statements be 1.875 per cent. per
annum.
5.4 Conversion Margin
In respect of any Interest Period during which an Advance is converted
from Tranche A to Tranche B (or vice versa) the Margin for that part of
the Interest Period that the Advance was outstanding under Tranche A
shall be determined in accordance with clause 5.2 and the Margin for
that part of the Interest Period that the Advance was outstanding under
Tranche B was outstanding shall be determined in accordance with clause
5.3.
5.5 Interest Periods
The Interest Period in relation to each Advance shall be of a duration
equal to the Term of such Advance.
5.6 Default interest
If the Borrower fails to pay any sum (including, without limitation,
any sum payable pursuant to this clause 5.6) on its due date for
payment under this Agreement the Borrower agrees to pay interest on
such sum from the due date up to the date of actual payment (as well
after as before judgment) at a rate determined by the Agent pursuant to
this clause 5.6. The period beginning on such due date and ending on
such date of payment shall be divided into successive periods of not
more than three months as selected by the Agent (after consultation
with the Banks) each of which (other than the first, which shall
commence on such due date) shall commence on the last day of the
preceding such period. The rate of interest applicable to each such
period shall be the aggregate (as determined by the Agent) of (a) two
per cent. per annum, (b) the Margin, (c) the Additional Cost and (d)
LIBOR, provided that if such unpaid sum is all or part of an Advance
which shall have become due and payable prior to the last day of the
then current Interest Period relating thereto, the first such period
selected by the Agent shall end on the last day of such Interest Period
and interest shall be payable on such unpaid sum during such period at
a rate two per cent. above the rate applicable thereto immediately
before it became due. Default interest under this clause 5.6 shall be
due and payable on the last day of each period determined by the Agent
pursuant to this clause 5.6 or, if earlier, on the date on which the
sum in respect of which such default interest is accruing shall
actually be paid. If, for the reasons specified in clause 5.8(a)(i) or
(ii), the Agent is unable to determine a rate in accordance with the
foregoing provisions of this clause 5.6 each Bank shall promptly notify
the Agent of the cost of funds to such Bank and interest on any sum not
paid on its due date for payment shall be calculated for each Bank at a
rate determined by the Agent to be two per cent. per annum above the
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<PAGE>
aggregate of the Margin and the cost of funds (including Additional
Cost) to such Bank.
5.7 Notification of Interest Periods and interest rate
The Agent shall notify the Borrower and the Banks promptly of the
amount of each Advance, the duration of each Interest Period or other
period for the calculation of interest (or, as the case may be, default
interest) and of each rate of interest determined by it under this
clause 5.
5.8 Market disruption; non-availability
(a) If and whenever, at any time prior to the commencement of any
Interest Period:
(i) the Agent shall have determined (which determination
shall, in the absence of manifest error, be
conclusive), that adequate and fair means do not
exist for ascertaining LIBOR during such Interest
Period; or
(ii) (if LIBOR is to be calculated by reference to quotes
of the Reference Banks) none or only one of the
Reference Banks supplies the Agent with a quotation
for calculating LIBOR; or
(iii) the Agent shall have received notification from Banks
with Contributions aggregating not less than
one-third of the Loan that deposits in Sterling are
not available to such Banks in the London Interbank
Market in the ordinary course of business in
sufficient amounts to fund their contributions to the
relevant Advance for such Interest Period or that
LIBOR does not accurately reflect the cost to such
Banks of obtaining such deposits;
the Agent shall forthwith give notice (a "Determination Notice")
thereof to the Borrower and to each of the Banks. A Determination
Notice shall contain particulars of the relevant circumstances
giving rise to its issue. After the giving of any Determination
Notice the undrawn amount of the Commitments of all of the Banks
shall not be borrowed until notice to the contrary is given to
the Borrower by the Agent.
(b) During the period of 10 days after any Determination Notice has
been given by the Agent under clause 5.8(a), (i) if the Borrower
so requires, the Borrower and the Agent and each affected Bank
shall enter into negotiations with a view to agreeing a
substitute basis for determining the rates of interest from time
to time applicable to the Advances thereafter and any such
substitute basis that is agreed shall take effect in accordance
with its terms; and (ii) if no substitute basis has been agreed
between the Borrower, the Agent and each affected Bank pursuant
to sub-paragraph (i) above, each affected Bank shall certify a
32
<PAGE>
substitute basis for funding its contribution to the relevant
Advance. Such substitute basis may (without limitation) include
alternative interest periods, alternative currencies or
alternative rates of interest but shall include a margin above
the cost of funds including Additional Cost, if any, to such Bank
equivalent to the Margin for the relevant Interest Period
determined in accordance with clauses 5.2 and 5.3 (as
applicable).
Each substitute basis so agreed in accordance with (i) or,
failing such agreement, certified in accordance with (ii) shall
be binding upon the Borrower, the Agent and (in the case of (i))
each Bank and (in the case of (ii)) each affected Bank and shall
take effect in accordance with its terms from the date specified
in the Determination Notice.
5.9 Reference Bank quotations
If any Reference Bank is unable or otherwise fails to furnish a
quotation for the purpose of calculating LIBOR the interest rate shall
be determined, subject to clause 5.8, on the basis of the quotations
furnished by the remaining Reference Banks.
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<PAGE>
6 Repayment, prepayment and cancellation
6.1 Repayment of the Tranche A Loan
The Borrower agrees to repay the outstanding amount of the Tranche A
Loan on or before 31 December 2000.
6.2 Repayment of the Tranche B Loan
The Borrower agrees to repay the outstanding amount of Tranche B Loan
on or before 31 January 2001.
6.3 Voluntary prepayment
The Borrower may prepay any Advance in whole or in part (being (UK
Pound)3,000,000 or any larger sum which is an integral multiple of (UK
Pound)1,000,000) at any time subject to the provisions of clause 6.
6.4 Additional voluntary prepayment
The Borrower may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under
clauses 5.8, 8.7 and 16.2:
(a) the Contribution of any Bank to which the Borrower shall have
become obliged to pay additional amounts under clause 8.7 or
16.2;
(b) any Bank's Contribution to which a substitute basis applies by
virtue of clause 5.8(b); or
(c) the Contribution of any Bank if it is or becomes contrary to
any law or regulation for that Bank to contribute to Advances
or to maintain its Commitment or fund or maintain its
Contribution.
Upon any notice of such prepayment being given, the Commitment of the
relevant Bank shall be reduced to zero.
6.5 Amounts payable on prepayment
Any prepayment under this Agreement shall be made together with: (a)
accrued interest to the date of prepayment (calculated, in the case of
any prepayment of a Bank's Contribution pursuant to clause 6.4(b), and
in respect of the period during which the relevant substitute basis has
applied by virtue of clause 5.8(b), at a rate per annum equal to the
rate certified by such Bank in accordance with clause 5.8(b)); (b) any
additional amount payable under clause 8.7 or 16.2; and (c) all other
sums payable by the Borrower to the relevant Bank or the Banks (as the
case may be) under this Agreement including, without limitation, any
accrued commitment commission payable under clause 7.1(c) and any
amounts payable under clause 15.
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<PAGE>
6.6 Notice of prepayment
No prepayment may be effected unless the Borrower shall have given the
Agent at least three Banking Days' notice of its intention to make such
prepayment. Every notice of prepayment shall be effective only on
actual receipt by the Agent, shall be irrevocable and shall oblige the
Borrower to make such prepayment on the date specified. The Borrower
may not prepay the Loan or any part thereof save as expressly provided
in this Agreement.
6.7 Cancellation of Commitments
The Borrower may at any time by notice to the Agent (effective only on
actual receipt) cancel with effect from a date not less than three
Banking Days after the receipt by the Agent of such notice the whole or
any part (being (UK Pound)3,000,000 or any larger sum which is an
integral multiple of (UK Pound)1,000,000) of the total of the
Commitments of all of the Banks which is not then outstanding or
requested in a Drawdown Notice in respect of which an Advance has not
then been made. Any such notice of cancellation, once given, shall be
irrevocable and upon such cancellation taking effect the Commitment of
each of the Banks shall be reduced proportionately.
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<PAGE>
7 Fees and expenses
7.1 Fees
The Borrower agrees to pay to the Agent whether or not any part of the
Commitments is ever advanced:
(a) Arranging fee
for the account of the Lead Arrangers, an arranging fee of an
amount agreed between the Borrower and the Lead Arrangers and
set out in a letter of even date herewith;
(b) Agency fee
on the date of the first Advance and on each anniversary of
the date of this Agreement until all moneys owing under this
Agreement have been paid in full, for the account of the
Agent, an agency fee of an amount agreed between the Borrower
and the Agent and set out in a letter of even date herewith;
and
(c) Commitment commission
in arrears on each Quarter Day after the date of this
Agreement and on 31 January 2001, for the account of each
Bank, commitment commission computed from the date of this
Agreement at the rate of 0.40 per cent. per annum on the daily
undrawn and uncancelled amount of such Bank's Commitment.
7.2 Expenses
The Borrower agrees to pay to the Agent within 30 days from the date on
which the Agent makes demand on the Borrower for payment of the same:
(a) all reasonable out-of-pocket expenses (including legal, other
professional, printing (other than publicity material) and
out-of-pocket expenses) incurred by the Agent, the Arrangers and
the Security Trustee in connection with the negotiation,
preparation (including reasonable due diligence), syndication and
execution of this Agreement and the Security Documents and of any
amendment or extension of or the granting of any waiver or
consent under this Agreement or any Security Document together
with interest at the rate referred to in clause 5.6 from the date
30 days after the date of demand for payment of such expenses to
the date of payment (as well after as before judgment); and
(b) all expenses (including legal and out-of-pocket expenses)
incurred by the Agent, the Arrangers, the Security Trustee and
the Banks or any of them in contemplation of, or otherwise in
connection with, the enforcement of, or preservation of any
36
<PAGE>
rights under, this Agreement or any Security Document, or
otherwise in respect of the moneys owing under this Agreement,
together with interest at the rate referred to in clause 5.6 from
the date falling 30 days after the date of demand for payment of
such expenses to the date of payment (as well after as before
judgment).
7.3 Value Added Tax
All fees and expenses payable pursuant to this clause 7 shall be paid
together with Value Added Tax (if any) properly chargeable thereon.
7.4 Stamp and other duties
The Borrower agrees (i) to pay all stamp, documentary, registration or
other like duties or taxes (including any duties or taxes payable by
the Agent, the Arrangers, the Security Trustee and the Banks) imposed
on or in connection with this Agreement, any Security Document or the
Loan and (ii) to indemnify the Agent, the Arrangers, the Security
Trustee and the Banks against any liability arising by reason of any
delay or omission by the Borrower to pay such duties or taxes.
37
<PAGE>
8 Payments and Taxes; accounts and calculations
8.1 No set-off or counterclaim; distribution to the Banks
All payments to be made by the Borrower under this Agreement shall be
made in full, without any set-off or counterclaim whatsoever and,
subject as provided in clause 8.7, free and clear of any deductions or
withholdings, in Sterling on the due date to the account of the Agent
at such bank in London as the Agent may from time to time specify for
this purpose. Save as otherwise expressly provided by this Agreement
such payments shall be for the account of the Banks, and the Agent
shall forthwith distribute such payments in like funds as are received
by the Agent to the Banks rateably in accordance with their Commitments
and/or Contributions, as the case may be.
8.2 Payments by the Banks
All sums to be advanced by the Banks to the Borrower under this
Agreement shall be remitted in Sterling on the date of the relevant
Advance to the account of the Agent at such bank in London as the Agent
may have notified to the Banks and shall be paid by the Agent on such
date in like funds as are received by the Agent to the account of the
Borrower specified in the relevant Drawdown Notice.
8.3 Agent may assume receipt
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume that the payment will
be made when due and may (but shall not be obliged to) make such sum
available to the person so entitled. If it proves to be the case that
such payment was not made to the Agent, then the person to whom such
sum was so made available shall on request refund such sum to the Agent
together with interest thereon sufficient to compensate the Agent for
the cost of making available such sum up to the date of such repayment
and the person by whom such sum was payable shall indemnify the Agent
for any and all loss or expense which the Agent may sustain or incur as
a consequence of such sum not having been paid on its due date.
8.4 Non-Banking Days
When any payment under this Agreement would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be extended
to the next following Banking Day unless such Banking Day falls in the
next calendar month in which case payment shall be made on the
immediately preceding Banking Day. If any date or day specifically
referred to in this Agreement (being a date for the making of any
payment under this Agreement) is not a Banking Day all references
thereto shall be deemed to be references to the immediately preceding
Banking Day.
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<PAGE>
8.5 Calculations
All interest and other payments of an annual nature under this
Agreement or to be calculated on an annual basis shall accrue from day
to day and be calculated on the basis of actual days elapsed and a 365
day year. In calculating the actual number of days elapsed in a period
which is one of a series of consecutive periods with no interval
between them or a period on the last day of which any payment falls to
be made in respect of such period, the first day of such period shall
be included but the last day excluded.
8.6 Certificates conclusive
Any certificate or determination of the Agent, any Arranger, the
Security Trustee or any Bank as to any rate of interest or any amount
payable under this Agreement shall, in the absence of manifest error,
be conclusive and binding on each member of the Group and (in the case
of a certificate or determination by the Agent) on the Banks.
8.7 Grossing-up for Taxes
If at any time the Borrower is required to make any deduction or
withholding in respect of Taxes from any payment due under this
Agreement for the account of any Bank, any Arranger, the Security
Trustee or the Agent (or if the Agent is required to make any such
deduction or withholding from a payment to any Arranger, the Security
Trustee or a Bank), the sum due from the Borrower in respect of such
payment shall, subject to clause 8.8, be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, each Bank, any Arranger, the Security Trustee and the
Agent receives on the due date for such payment (and retains, free from
any liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made and the Borrower shall indemnify
each Bank, each Arranger, the Security Trustee and the Agent against
any losses or costs incurred by any of them by reason of any failure of
the Borrower to make any such deduction or withholding or by reason of
any increased payment not being made on the due date for such payment.
The Borrower shall promptly deliver to the Agent copies of (or, where
required, originals of) any receipts, certificates or other proof
evidencing the amounts (if any) paid or payable in respect of any
deduction or withholding as aforesaid.
8.8 Qualifying Banks
Each Bank agrees promptly to notify the Borrower if it is not or if it
ceases to be a Qualifying Bank. If any Bank is not or ceases to be a
Qualifying Bank then (save in circumstances where such Bank has ceased
to be a Qualifying Bank (i) by reason of any change in any law,
directive or regulation or in its application or interpretation, in
each case taking effect after the date of this Agreement and (ii)
otherwise than by reason of its no longer being entitled to the benefit
39
<PAGE>
of a double tax treaty) the Borrower shall not be liable to pay to that
Bank under clause 8.7 any sum in excess of the sum it would have been
obliged to pay if that Bank had been, or had not ceased to be, a
Qualifying Bank.
8.9 Claw-back of Tax benefit
If following any such deduction or withholding as is referred to in
clause 8.7 from any payment by the Borrower, the Agent, any Arranger,
the Security Trustee or any Bank shall receive or be granted a credit
against or remission for any taxes payable by it, the Agent, any
Arranger, the Security Trustee or such Bank shall, subject to the
Borrower having made any increased payment in accordance with clause
8.7 and to the extent that the Agent, such Arranger, the Security
Trustee or such Bank can do so without prejudicing the retention of the
amount of such credit or remission and without prejudice to the right
of the Agent, such Arranger, the Security Trustee or such Bank to
obtain any other relief or allowance which may be available to it,
reimburse the Borrower with such amount as the Agent, such Arranger,
the Security Trustee or such Bank shall in its absolute discretion
certify to be the proportion of such credit or remission as will leave
the Agent, such Arranger, the Security Trustee or such Bank (after such
reimbursement) in no worse position than it would have been in had
there been no such deduction or withholding from the payment by the
Borrower as aforesaid. Such reimbursement shall be made forthwith upon
the Agent, such Arranger, the Security Trustee or such Bank certifying
that the amount of such credit or remission has been received by it
provided that the Agent, the relevant Arranger, the Security Trustee or
the relevant Bank shall not unreasonably delay before so certifying.
Nothing contained in this Agreement shall oblige the Agent, any
Arranger, the Security Trustee or any Bank to disclose to the Borrower,
any other member of the Group or any other person any information
regarding its tax affairs or tax computations or interfere with the
right of the Agent, such Arranger, the Security Trustee or such Bank to
arrange its tax affairs in whatever manner it thinks fit and, in
particular, none of the Agent, the Arrangers, the Security Trustee or
the Banks shall be under any obligation to claim relief from its
corporate profits, tax liability or similar tax liabilities in respect
of such tax in priority to any other claims, reliefs, credits or
deductions available to it. Without prejudice to the generality of the
foregoing, none of the Borrower or any other member of the Group shall
by virtue of this clause 8.9, be entitled to enquire about the Agent's,
any Arranger's, the Security Trustee's or any Bank's tax affairs.
8.10 Bank accounts
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under this Agreement. The Agent shall maintain
a control account showing the Loan and other sums owing by the Borrower
under this Agreement and all payments in respect thereof made by the
Borrower from time to time. The control account shall be prima facie
evidence as to the amount from time to time owing by the Borrower under
this Agreement.
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<PAGE>
8.11 Partial payments
If, on any date on which a payment is due to be made by the Borrower
under this Agreement, the amount received by the Agent from the
Borrower falls short of the total amount of the payment due to be made
by the Borrower on such date then, without prejudice to any rights or
remedies available to the Agent and the Banks under this Agreement, the
Agent shall apply the amount actually received from the Borrower in or
towards discharge of the obligations of the Borrower under this
Agreement in the following order, notwithstanding any appropriation
made, or purported to be made, by the Borrower:
(a) first, in or towards payment to the Agent, of any portion of
the arranging fee payable under clause 7.1(a) which shall have
become due but remains unpaid;
(b) secondly, in or towards payment to the Agent, the Arrangers,
the Security Trustee and the Banks, on a pro rata basis, of
any unpaid fees, costs and expenses of the Agent, the
Arrangers, the Security Trustee and the Banks under this
Agreement and any portion of the agency fee payable under
clause 7.1(b) which shall have become due but remains unpaid;
(c) thirdly, in or towards payment to the Banks, on a pro rata
basis, of any accrued commitment commission payable under
clause 7.1(c) which shall have become due but remains unpaid;
(d) fourthly, in or towards payment to the Banks, on a pro rata
basis, of any accrued interest in respect of the Tranche A
Loan which shall have become due but remains unpaid;
(e) fifthly, in or towards payment to the Banks, on a pro rata
basis, of any accrued interest on the Tranche B Loan which
shall have become due but remains unpaid;
(f) sixthly, in or towards payment to the Banks, on a pro rata
basis, of any principal of the Tranche A Loan which shall have
become due but remains unpaid;
(g) seventhly, in or towards payment to the Banks, on a pro rata
basis, of any principal of the Tranche B Loan which shall have
become due but remains unpaid; and
(h) eighthly, in or towards payment of any other sum which shall
have become due but remains unpaid (and, if more than one such
sum so remains unpaid, on a pro rata basis).
The order of application set out in this clause 8.11 may be varied by
the Agent if all Banks so direct.
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<PAGE>
8.12 Effect of monetary union
If the country of any national currency in which any amount is
expressed to be payable under this Agreement participates in Economic
and Monetary Union in accordance with Article 109j of the Treaty on
European Union, then:
(a) (if more than one currency or currency unit is recognised by
the central bank of that country as the lawful currency of
that country) any amount expressed to be payable under this
Agreement in that national currency shall be made in that
national currency or in euro as the relevant Agent may, by not
less than three Banking Days' notice to the Borrower and the
relevant Banks to that effect, require;
(b) any amount so required to be paid in euro shall be converted
from that national currency at the rate stipulated pursuant to
Article 1091(4) of the Treaty on European Union and payment of
the amount in euro derived from such conversion shall
discharge the obligation of the relevant party to pay such
national currency amount in accordance with, and subject to,
the Regulation(s) made pursuant to Article 1091(4);
(c) after consultation between the Agent, the Borrower and the
Banks and notwithstanding clause 19.2, the Agent shall be
entitled to make such amendments to this Agreement as it may
reasonably determine to be necessary to take account of
monetary union to put the Banks in no better or worse position
(as far as reasonably possible) than they would have been in
if no change in currency had taken place.
Any amendment so made to this Agreement by the Agent shall be promptly
notified to the other parties thereto and shall be binding on all
parties thereto.
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9 Representations and warranties
9.1 Repeated representations and warranties
The Borrower and each other Security Obligor severally represents and
warrants in respect of itself and, in the case of the Borrower, each
other member of the Group to each of the Banks, the Arrangers, the
Security Trustee and the Agent that:
(a) Due incorporation of the Borrower and its Subsidiaries
the Borrower is duly incorporated and validly existing under
the laws of Bermuda as a limited liability company, each other
Security Obligor is duly incorporated and validly existing
under the laws of England or Bermuda (as the case may be) as a
limited liability company (or equivalent if incorporated in
Bermuda) and each Security Obligor has power to carry on its
business as it is now being and hereafter proposed to be
conducted and to own its property and other assets;
(b) Power of the Borrower and each Charging Subsidiary
the Borrower and each Charging Subsidiary have all requisite
power to execute, deliver and perform their respective
obligations under this Agreement and the Security Documents to
which they are a party including, in the case of the Borrower
to borrow the Commitments; compliance has been made with all
necessary requirements and all necessary corporate,
shareholder or other action has been taken by the Borrower and
each Charging Subsidiary to authorise the execution, delivery
and performance of this Agreement and the Security Documents
to which they are a party; no limitation on the powers of the
Borrower to borrow will be exceeded as a result of borrowings
under this Agreement;
(c) Binding obligations
this Agreement constitutes valid and legally binding
obligations of each Security Obligor enforceable in accordance
with its terms subject to the qualifications contained in the
legal opinions referred to in schedule 3 which relate to this
Agreement. The Security Documents to which they are a party
constitute valid and legally binding obligations of each
Security Obligor enforceable in accordance with their
respective terms subject to the qualifications contained in
the legal opinions referred to in schedule 3 which relate to
the Security Documents and for this purpose any statement
contained in the qualifications to any such legal opinion that
no opinion is given or expressed in relation to any particular
matter shall be deemed to be a qualification of such opinion
as regards such matter;
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(d) No conflict with other obligations
the execution and delivery of, the performance of their
respective obligations under, and compliance with the
provisions of, this Agreement by each Security Obligor and the
Security Documents to which they are a party by each Security
Obligor will not (i) contravene in any material respect any
existing applicable law, statute, rule or regulation or any
judgment, decree or permit to which any Security Obligor is
subject, (ii) contravene or conflict with any provision of the
Memorandum and Articles of Association of the Borrower or any
Security Obligor, (iii) breach in any material respect any
term of the Licences or the Necessary Authorisations, (iv)
conflict with in any material respect, or result in any breach
of any of the terms of, or constitute a default under any
agreement to which any Security Obligor is a party or is
subject or by which it or any of its property is bound or (v)
result in the creation or imposition of, or oblige any
Security Obligor to create, any Encumbrance (other than those
created by the Security Documents) on any Security Obligor or
any of their undertakings, assets, rights or revenues;
(e) No litigation
save as disclosed in the Disclosure Letter, no litigation,
arbitration or administrative proceeding is taking place,
pending or, to the knowledge of the officers of the Borrower
or any other Security Obligor (as the case may be), threatened
against the Borrower or any of its Subsidiaries which (if
adversely determined) would or is reasonably likely, in the
opinion of the Agent, to have a Material Adverse Effect;
(f) Financial statements
(i) the audited consolidated financial statements of the
Comcast Group in respect of the financial year ended
on 31 December 1996 on form 10-K as delivered to the
Agent have been filed with the SEC in accordance with
the Exchange Act and have been prepared in accordance
with US GAAP;
(ii) the Quarterly Management Accounts for the Quarterly
Period ending on 30 September 1997 as delivered to
the Agent have been prepared in accordance with UK
GAAP which principles have been consistently applied
and present fairly and accurately the results of the
operations of the Group for the relevant period; and
(iii) the pro forma consolidated financial projections for
the financial years ending 31st December 1997 to 31st
December 2007 inclusive for the Group, the operating
statistics projections for such financial years and
the Agreed Base Case have been prepared based upon
historical financial information and upon the
assumptions set forth therein, which assumptions
were, in the opinion of the Board of Directors of the
Borrower looking at the projections as a whole,
reasonable both when made and are reasonable on the
date hereof;
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(g) No filing required
it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement
or any of the Security Documents that any of them or any other
instrument be notarised, filed, recorded, registered or
enrolled in any court or public office in Bermuda or the
United Kingdom (save, in the case of the Share Mortgage, the
obtaining of the permission of the Bermuda Monetary Authority
for the transfer from Comcast to the Security Trustee of the
shares mortgaged pursuant to the Share Mortgage, in the United
Kingdom, for the registration of the Debenture and the Share
Mortgage pursuant to section 395 of the Companies Act 1985
and, in the case of the Debenture, pursuant to the Land
Registration Act 1925 and the Land Charges Act 1925 and
regulations made thereunder);
(h) Choice of law
the choice by each Security Obligor of English law to govern
this Agreement and the Security Documents to which it is a
party is valid and binding subject to the qualifications
contained in the legal opinion referred to in schedule 3 which
relate to this Agreement or the Security Documents and for
this purpose any statement contained in the qualifications to
any such legal opinion that no opinion is given or expressed
in relation to any particular matter shall be deemed to be a
qualification of such opinion as regards such matter;
(i) Legal and beneficial owners
the Borrower and its Subsidiaries are the legal and beneficial
owners of and have good and marketable title to all their
respective material properties and other material assets free
from any Encumbrances other than Permitted Encumbrances;
(j) No material adverse change
there has been no adverse change in the financial condition or
operations of the Group from that set forth in the latest
audited financial statements of the Group or the latest
Quarterly Management Accounts delivered to the Agent under
this Agreement which, in either case, would or is reasonably
likely, in the opinion of the Agent, to have a Material
Financial Adverse Effect;
(k) Compliance with Environmental Laws and Licences
each member of the Group:
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(i) complies and has at all times complied with all
Environmental Laws and Environmental Licences and all
other laws, regulations and judgments (other than
Telecommunications and Cable Laws) the breach of
which would or is reasonably likely to have a
Material Financial Adverse Effect; and
(ii) has obtained and maintains in full force and effect
all Environmental Licences, and there are no facts or
circumstances entitling any such Environmental
Licences to be revoked, suspended, amended, varied,
withdrawn or not renewed where such revocation,
suspension, amendment, variation, withdrawal or
non-renewal, would or is reasonably likely to have a
Material Financial Adverse Effect;
(l) Environmental Claim
no Environmental Claim is pending or has been made or
threatened against any member of the Group or any of their
respective officers or any occupier of any property owned or
leased by any member of the Group and no member of the Group
has any reason to believe that it or, in the case of the
Borrower, any of its Subsidiaries has or is likely to have any
liability in relation to Environmental Matters which in any
such case would or is reasonably likely to have a Material
Financial Adverse Effect;
(m) Deposit of Relevant Substance
save as disclosed in the Disclosure Letter, to the best of its
knowledge and belief, no Relevant Substance has been
deposited, disposed of, kept, treated, imported, exported,
transported, processed, manufactured, used, collected, sorted
or produced at any time, or is present in the environment
(whether or not on property owned, leased, occupied or
controlled by any member of the Group) in circumstances which
are likely to result in an Environmental Claim against any
member of the Group which would, or is reasonably likely to
have a Material Financial Adverse Effect;
(n) Disclosure of inspection results
save as disclosed in the Disclosure Letter, full details have
been given to the Agent of any inspections, investigations,
studies, audits, tests, reviews or other analyses in relation
to Environmental Matters relating to any member of the Group
or to the best of the knowledge of any member of the Group (as
the case may be) any property now owned, leased or occupied by
any member of the Group and of all Environmental Licences
which disclose any matters which would or would be reasonably
likely to have a Material Financial Adverse Effect;
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(o) Intellectual Property Rights
(i) the Intellectual Property Rights owned by each member
of the Group are free from any Encumbrance (save for
those created or to be created by or pursuant to the
Security Documents) and any other rights or interests
in favour of third parties which, in any such case,
could reasonably be expected to have a Material
Financial Adverse Effect;
(ii) the Intellectual Property Rights owned by each member
of the Group are all the Intellectual Property Rights
required by them in order to carry on, maintain and
operate in all material respects their respective
businesses, properties and assets and no member of
the Group in carrying on its business infringes any
Intellectual Property Rights of any third party where
any action taken by such third party in respect of
any such infringement would or is reasonably likely
to have a Material Financial Adverse Effect; and
(iii) no Intellectual Property Rights owned by any member
of the Group are being infringed, nor to its
knowledge is there any threatened infringement of any
such Intellectual Property Rights which, in either
case would or is reasonably likely to have a Material
Financial Adverse Effect;
(p) Copyright matters
each member of the Group has obtained all consents and taken
all other action required in connection with the secondary
transmission by it of any broadcast television signals and no
member of the Group has any knowledge, nor is it aware of any
claim, that it is or may be liable to any person for any
copyright infringement of any nature whatsoever as a result of
the operation of its business which liability would or is
reasonably likely to have a Material Financial Adverse Effect;
and
(q) Shares
all shares issued by each member of the Group have been
validly allotted.
9.2 Further representations and warranties
The Borrower and each other Security Obligor severally further
represents and warrants in respect of itself and, in the case of the
Borrower, each of its Subsidiaries, to each of the Banks, the
Arrangers, the Security Trustee and the Agent that:
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(a) Principal Agreements
(i) the Principal Agreements which have been entered into on
or prior to the date of this Agreement are in full force and
effect and (ii) to the best of its knowledge and belief after
due enquiry, (1) no party is in breach of the terms thereof,
(2) (save as disclosed in the Disclosure Letter) there is no
dispute subsisting between the parties thereto and (3) no
amendments have been made thereto (save for any amendments
referred to in the relevant definitions) which in any such
case could reasonably be expected to have a Material Adverse
Effect;
(b) Licences and Necessary Authorisations
the Licences are in full force and effect and each member of
the Group is in compliance in all material respects with all
provisions thereof. Each member of the Group has secured all
the Necessary Authorisations, all such Necessary
Authorisations are in full force and effect and each member of
the Group is in compliance in all material respects with all
provisions thereof. To the best of the knowledge of each
member of the Group neither the Licences nor any of the
Necessary Authorisations are the subject of any pending or
threatened attack or revocation which in any such case could
reasonably be expected to have a Material Adverse Effect;
(c) Consents obtained
every consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public
bodies or authorities or courts (other than the Licences and
the Necessary Authorisations) required by each Security
Obligor to authorise, or required by each Security Obligor in
connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of this Agreement
and the Security Documents to which they are a party or the
performance by each Security Obligor of their respective
obligations under this Agreement and the Security Documents
(other than the registration of the Debenture and the Share
Mortgage pursuant to section 395 of the Companies Act 1985
and, in the case of the Debenture, section 26 of the Land
Registration Act 1925) has been obtained or made and is in
full force and effect and there has been no material default
in the observance of the conditions or restrictions (if any)
imposed in, or in connection with, any of the same;
(d) Contractual commitments
no dividends (in cash or specie) of the Borrower or any other
rights or benefits have been declared, made or paid by the
Borrower and no member of the Group has entered into any
contractual commitments of a material nature (other than (i)
the Principal Agreements, (ii) for the purpose of carrying out
the business of constructing, installing and operating cable
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television and telecommunications systems in the Franchises or
such other business as is permitted by the terms of this
Agreement or (iii) contractual commitments arising pursuant to
or constituting Permitted Borrowings, Permitted Disposals,
Permitted Guarantees, Permitted Intra-Group Transactions,
Permitted Investments or Permitted Encumbrances);
(e) No withholding Taxes
as at the date of this Agreement, on the basis that all of the
Banks are Qualifying Banks, no Taxes are imposed by
withholding or otherwise on any payment to be made to the
Agent, the Arrangers, the Security Trustee or the Banks by any
member of the Group under this Agreement or any Security
Document to which any of them is a party or are imposed on or
by virtue of the execution or delivery by any member of the
Group of this Agreement or any Security Document to which any
of them is a party or any document or instrument to be
executed or delivered under this Agreement or any such
Security Document (other than stamp duty payable on any
Security Document);
(f) Telecommunications and Cable Laws
save as disclosed in the Disclosure Letter, each member of the
Group is in compliance in all material respects with all
Telecommunications and Cable Laws but excluding, for these
purposes only, breaches of Telecommunications and Cable Laws
which have been expressly waived by the relevant regulatory
authority or which could not reasonably be expected to have a
Material Adverse Effect;
(g) No Default
no Default has occurred and is continuing;
(h) Information Memorandum
to the best of the Borrower's knowledge and belief after due
enquiry, as at the date of the Information Memorandum the
factual information contained in the Information Memorandum
was true and accurate in all material respects and not
misleading in any material respect and the Information
Memorandum does not omit any material facts; all reasonable
enquiries have been made by the Borrower to verify the facts
and statements contained therein; all opinions, projections
and forecasts contained therein and the assumptions on which
such opinions, projections and forecasts were based were
arrived at after due and careful consideration and enquiry and
represent the views of the Borrower as at the date of the
Information Memorandum; there are no material facts or
circumstances which have not been disclosed to the Arrangers
prior to the date hereof the omission of which could make any
material factual information contained in the Information
Memorandum inaccurate or misleading in any material respect
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either as at the date of the Information Memorandum or as at
the date of this Agreement or any of the opinions, projections
and forecasts contained in the Information Memorandum (and the
assumptions on which such opinions, projections and forecasts
were made) misleading in any material respect either as at the
date of the Information Memorandum or as the date of this
Agreement. No warranty or representation is made in respect of
(i) any information, facts, statements, opinions, projections,
forecasts, demographic statistics or circumstances relating to
the cable and telecommunications industry as a whole
("Information"), (ii) any person other than the members of the
Group or (iii) any Information which is in the public domain
or which is identified in the Information Memorandum as having
been obtained from or made by a source, or being those of a
person, other than the members of the Group; and
(i) Network Operating Services
the Network Operating Services in relation to the Cable System
are provided by TeleWest Communications plc pursuant to the
Network Service Centre Agreement.
9.3 Repetition
The representations and warranties in clause 9.1, except (g), (h) and
(f)(ii), (so that:
(a) the representation and warranty in clause 9.1(f)(i) shall for
this purpose refer to (i) the then latest consolidated financial
statements of the Comcast Group (as filed with the SEC) verified
by the auditors of the Comcast Group and delivered to the Agent
under clause 11.1 and (ii) the then latest consolidated financial
statements of the Group (A) reported on by the auditors of the
Group and delivered to the Agent under clause 11.1 and (B)
prepared in accordance with UK GAAP and such principles have
(save where the Borrower is permitted to prepare or procure the
preparation of financial statements on the New Basis and is not
required to prepare financial statements on the Original Basis
(each as defined in clause 11.1(i))) been consistently applied
and present fairly and accurately the financial position of each
such entity as at such date and the results of the operations of
the Group for the financial year ended on such date,
(b) the representation and warranty contained in clause 9.1(f)(iii)
shall for this purpose refer to the then latest pro forma
consolidated financial projections of the Group and the then
latest operating statistics projections for each franchise
contained in the relevant Annual Budget and shall not include a
representation or warranty as to the Agreed Base Case, and
(c) the representation and warranty in clause 9.1(j) shall for this
purpose refer to the latest audited financial statements or
Quarterly Management Accounts of the Group delivered to the Agent
under clause 11.1),
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shall be deemed to be repeated by the Borrower and each other Security
Obligor on and as of each Interest Payment Date, the date on which each
Advance is made under this Agreement and as at the date each set of the
latest audited and/or verified financial statements are delivered to
the Agent under clause 11.1(f).
10 Subordination
10.1 Restricted Payments
The Security Obligors jointly and severally undertake with each Bank,
each Arranger, the Security Trustee and the Agent that from the date of
this Agreement and so long as any monies are owing under this Agreement
or remain available for drawing by the Borrower:
(a) they will not (and, in the case of the Borrower, will procure
that its Subsidiaries do not) make any Restricted Payment other
than Permitted Payments; and
(b) they will procure that any Restricted Person (other than Comcast
U.K. Consulting, Inc. provided that the only Restricted Payments
payable to it are under the Consultant Agreement in its form as
at the date of this Agreement and it remains a Subsidiary of a
Restricted Person who has entered into a Deed of Subordination)
enters into a Deed of Subordination prior to any Restricted
Payment becoming payable to such Restricted Person and will
provide the Agent with such evidence as it may reasonably request
as to the power and authority of the relevant person to enter
into such Deed of Subordination and that such Deed of
Subordination constitutes valid and legally binding obligations
of the relevant person enforceable, subject to any qualifications
of a substantially similar nature to those contained in the legal
opinions referred to in schedule 3, in accordance with its terms.
11 Positive covenants
11.1 Covenants
The Security Obligors jointly and severally undertake with each of the
Banks, each of the Arrangers, the Security Trustee and the Agent that
they will from the date of this Agreement and so long as any monies are
owing under this Agreement or any part of the Commitments remains
outstanding:
(a) Notice of Default, etc.
promptly inform the Agent of (i) any occurrence of which it
becomes aware which would or is reasonably likely to have a
Material Adverse Effect, (ii) any Default forthwith upon
becoming aware thereof and will from time to time, if so
requested by the Agent, confirm to the Agent in writing that,
save as otherwise stated in such confirmation, no Default has
occurred and is continuing, (iii) any lapse, suspension or
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termination of or refusal by any person to renew or extend any
Licence or Necessary Authorisation or any breach of any
Licence or Necessary Authorisation where any such breach would
or is reasonably likely to have a Material Adverse Effect,
(iv) (to the extent known to any member of the Group) the
commencement of all proceedings and investigations by or
before any governmental body and all actions and proceedings
in any court or before any arbitrator where any such
proceedings, investigations or actions would, if adversely
determined, have a Material Adverse Effect (v) any application
of which it becomes aware for any other licence or franchise
agreement by means of cable television systems (including
satellite master antennae television systems and multi-point
microwave distribution systems) with respect to the territory
covered by the Licences where any such application, if
successful, would or is reasonably likely to have a Material
Financial Adverse Effect and (vi) any breach of any
Telecommunications and Cable Laws by any member of the Group
which would or is reasonably likely to have a Material Adverse
Effect;
(b) Consents and authorisations
obtain or cause to be obtained (i) every consent,
authorisation, licence (other than a Licence or a renewal or
extension thereof) or approval of, or registration with or
declaration to, governmental or public bodies or authorities
or courts and (ii) every notarisation, filing, recording,
registration or enrolment in any court or public office in the
United Kingdom (in any such case) required by any Security
Obligor or any Subordinated Creditor to authorise, or required
by any Security Obligor or any Subordinated Creditor in
connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of this Agreement
and the Security Documents or the performance by any Security
Obligor or any Subordinated Creditor of their respective
obligations under this Agreement and the Security Documents to
which they are a party;
(c) Licences
obtain or cause to be obtained every Licence and ensure that
(A) where there are any Subscribers within the relevant
Franchise subscribing for services covered by a Licence, (1)
such Licence is not revoked, cancelled, suspended, withdrawn
or terminated, or does not expire or otherwise cease to be in
full force and effect unless the same is, prior to or
contemporaneously with such event, renewed or replaced and (2)
none of the DTI, ITC, OFTEL nor any other relevant authority
issues any notice in respect of any Franchise informing any
Security Obligor that it has or will (whether or not following
the failure to satisfy certain conditions) revoke, cancel,
suspend, withdraw, terminate or not permit the renewal of such
Licence (whether or not such notice gives any Security Obligor
a period within which to remedy the matter which gave rise to
such notice) and (B) such Licence is not modified and no
Security Obligor commits any breach of the terms or conditions
thereof (including, without limitation, any failure to meet
the milestones referred to therein) where any such
modification, breach or failure would or is reasonably likely,
in the opinion of the Agent, to have a Material Adverse
Effect;
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(d) Necessary Authorisations
obtain or cause to be obtained every Necessary Authorisation
and ensure that (i) none of the Necessary Authorisations is
revoked, cancelled, suspended, withdrawn or terminated, or
expires and is not renewed or otherwise ceases to be in full
force and effect and (ii) no Necessary Authorisation is
modified and no member of the Group commits any breach of the
terms or conditions of any Necessary Authorisation which, in
the case of any of the actions or events referred to in either
(i) or (ii), would or is reasonably likely, in the opinion of
the Agent, to have a Material Adverse Effect;
(e) Business
engage in the business of acting as the holder of shares in
other members of the Group and/or the business of
constructing, installing, operating and utilising cable
television and telecommunications systems in the Franchises
and in no other activities save for any directly related
business reasonably considered to be financially beneficial to
such business; in the case of the Borrower engage in the
business of acting as the holding company of its Subsidiaries
(which shall include the raising of Permitted Borrowings and
the on-lending of such Borrowed Money to its Subsidiaries in
accordance with the provisions of this Agreement) and in no
other activities;
(f) Financial statements
(A) procure the preparation of consolidated financial
statements of (x) the Comcast Group in accordance with US GAAP
and (y) the Group in accordance with UK GAAP and (B) cause
such financial statements to be reported on by their
respective auditors and deliver to the Agent sufficient copies
of the same for distribution to all of the Banks as soon as
practicable but not later than 150 days after the end of the
financial year to which they relate.
(g) Quarterly Management Accounts
in respect of each Quarterly Period, prepare unaudited
consolidated Quarterly Management Accounts for the Group in
each case containing information of the same type and to the
same level of detail as in the format agreed with the Agent
(including, without limitation, a profit and loss account,
balance sheet, cash flow statement and summary of operating
statistics in the agreed form and, in the case of the last
Quarterly Period of each financial year, a profit and loss
account, balance sheet and cash flow statement for that
financial year in the agreed form) or omitting any such
information or detail or containing such other information or
to such other level of detail or containing such other
information or to such other level of detail as may, from time
to time, be approved by the Agent (acting on the instructions
of the Majority Banks) in writing and deliver a copy of the
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same to the Agent for distribution to all of the Banks as soon
as practicable but not later than 45 days after the Quarterly
Period to which they relate;
(h) Monthly Management Accounts
in respect of each calendar month, prepare unaudited
consolidated Monthly Management Accounts for the Group in each
case containing information of the same type and to the same
level of detail as in the format agreed with the Agent
(including, without limitation, a profit and loss account,
balance sheet and cash flow statement and a summary of
operating statistics in the agreed form) or omitting any such
information or detail or containing such other information or
to such other level of detail or containing such other
information or to such other level of detail as may, from time
to time, be approved by the Agent (acting on the instructions
of the Majority Banks) in writing and deliver a copy of the
same to the Agent for distribution to all of the Banks as soon
as practicable but not later than 30 days after the calendar
month to which they relate;
(i) Change in basis of accounts
the Borrower shall ensure that all financial statements of the
Group delivered under clause 11.1(f) are prepared in
accordance with UK GAAP and are in accordance with the
accounting principles and practices used in the preparation of
the financial statements referred to in clause 9.3(a)(ii) and
the 1998 Budget (the "Original Basis") consistently applied in
respect of each financial year unless to do so would be
inconsistent with then current UK GAAP (the "New Basis"). If
the preparation of financial statements on the Original Basis
is contrary to the New Basis then the Borrower shall promptly
notify the Agent in writing of the relevant change and (at the
option of the Borrower) shall either (1) prepare and deliver
to the Agent audited financial statements on both the Original
Basis and the New Basis (or shall prepare and deliver
financial statements on the New Basis only but shall also
prepare and deliver an audited reconciliation statement (a
"Reconciliation Statement") showing those adjustments
necessary in order to reconcile the financial statements
produced on the New Basis to the Original Basis) or (2)
request the Agent to enter into good faith negotiations for
such amendment (if any) as are necessary to the covenants
contained in clause 13.1 and any other provisions of this
Agreement affected by such change, in which event the Agent
will enter into such negotiations for a period of not more
than 28 days. If agreement is reached between the Borrower and
the Agent (acting on the instructions of the Majority Banks)
within such period as to the amendment of any such covenants
or provisions, then the parties hereto will enter into such
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documentation and take such other steps as are required to put
such amendments into effect following which the Borrower shall
then be obliged to produce financial statements on the New
Basis only. If no such agreement is reached then the Borrower
shall be obliged to prepare and deliver financial statements
on both the Original Basis and the New Basis (or shall prepare
and deliver audited financial statements on the New Basis
accompanied by a Reconciliation Statement).
Where the Borrower is under an obligation to deliver financial
statements under clause 11.1(f) on both the Original Basis and
the New Basis (or on the New Basis but accompanied by a
Reconciliation Statement), Monthly Management Accounts and
Quarterly Management Accounts shall also be delivered on both
bases or on the New Basis but accompanied by a Reconciliation
Statement.
All financial statements, Quarterly Management Accounts,
Monthly Management Accounts and Reconciliation Statements
delivered pursuant to this clause 11.1(i) shall be delivered
within the relevant time period set out in clause 11.1.
The provisions of this clause 11.1(i) shall also apply,
mutatis mutandis, to the preparation and delivery of the
Annual Budget under clause 11.1(j)(iii).
(j) Delivery of reports
deliver to the Agent, for distribution to the Banks (in the
case of a Compliance Certificate issued by the auditors of the
Group) sufficient copies for all of the Banks or (in any other
case) a copy of each of the following documents, in each case
at the time of issue thereof or (in the case of the Compliance
Certificates referred to in (ii) below) together with the
financial statements prepared in respect of each financial
year and Quarterly Management Accounts prepared in respect of
each Quarterly Period pursuant to clause 11.1(g) in respect of
the financial period to which such Compliance Certificate
relates:
(i) every material document issued by the Borrower to its
shareholders (in their capacity as a shareholder) or
issued by the Borrower or any of its Subsidiaries to
its creditors generally;
(ii) a Compliance Certificate stating that the Borrower
and each other member of the Group as at the last day
of the financial period to which such financial
statements or Quarterly Management Accounts relate
was in compliance with the relevant covenants and
undertakings in clause 13 (or if it was not in
compliance indicating the extent of the breach); and
(iii) (for each financial year falling within the Revolving
Period relating to Tranche B) an Annual Budget for
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each financial year for the Group no later than 45
days after the beginning of such financial year;
(k) Financial Year End
maintain a financial year end of 31 December for each member
of the Group;
(l) Authorised Officers
ensure that any new or replacement Authorised Officer has
provided the Agent with evidence satisfactory to it of such
new officer(s)' authority and a specimen of his or their
signature(s) prior to signing any Compliance Certificates,
Drawdown Notices, Rollover Notices, Conversion Notices or any
other notices, requests or confirmations referred to in this
Agreement or relating to the facility granted pursuant to this
Agreement;
(m) Auditors
ensure that Deloitte & Touche is appointed as auditor of each
member of the Group and not change such appointment without
appointing a major accounting firm of recognised international
standing and repute;
(n) Provision of further information
provide the Agent with a copy of (i) each Principal Agreement
entered into after the date of this Agreement and (ii) any
material report, notice or other communication relating to the
Licences, the Necessary Authorisations and such financial and
other information concerning each member of the Group and
their respective affairs as the Agent or any Bank (acting
through the Agent) may from time to time reasonably require;
(o) Insurance
maintain insurance cover in accordance with the terms and
conditions of the Security Documents and ensure that such
insurance cover is governed by English law;
(p) Inspection
if required by the Agent (acting on the instructions of the
Majority Banks) permit representatives of the Agent or any of
the Banks upon reasonable prior written notice to the Borrower
or its relevant Subsidiary, after having made arrangements
with the Borrower so to do to and after entering into a
confidentiality undertaking if reasonably required by the
Borrower (a) visit and inspect the properties of any member of
the Group during normal business hours, (b) inspect and make
extracts from and copies of its books and records other than
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records which the relevant member of the Group is prohibited
by law from disclosing to the Agent and/or any relevant Bank
and (c) discuss with its principal officers and auditors its
business, assets, liabilities, financial position, results of
operations and business prospects provided that any such
discussion with the auditors shall only be on the basis of the
audited accounts of the Group and Compliance Certificates
issued by the auditors;
(q) Notification of Environmental Claim and Expenditure
promptly on becoming aware of it inform the Agent of any
Environmental Claim which has been made or threatened against
any member of the Group or any occupier of any property owned
or leased by any member of the Group or any requirement by any
Environmental Licence or applicable Environmental Laws for any
member of the Group to make any investment or incur any
expenditure in excess of (UK Pound)500,000 in aggregate in any
calendar year or to take or desist from taking any action
which would or is reasonably likely, if substantiated, to have
a Material Financial Adverse Effect;
(r) Delivery of Environmental Licences and other information
promptly on receipt provide the Agent with copies of all
material Environmental Licences and the terms and conditions
thereof and any material amendments thereto;
(s) Compliance with laws and regulations
comply with the terms and conditions of all laws (other than
Telecommunications and Cable Laws, the Licences and the
Necessary Authorisations including any milestone requirements
in respect thereof), regulations, agreements, licences and
concessions including, without limitation, all Environmental
Laws and all Environmental Licences if the failure to comply
therewith, would or is reasonably likely, in the opinion of
the Agent, to have a Material Financial Adverse Effect;
(t) Relevant Substance
notify the Agent forthwith upon becoming aware of any Relevant
Substance at or brought on to any property owned, leased or
occupied by any member of the Group which is likely to give
rise to an Environmental Claim which would or is reasonably
likely to have a Material Financial Adverse Effect and take or
procure the taking of all necessary action to deal with,
remedy or remove from such property or prevent the incursion
of (as the case may be) that Relevant Substance in order to
prevent such an Environmental Claim and in a manner that
complies with all requirements of Environmental Law;
(u) Taxes
file or cause to be filed all tax returns required to be filed
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in all jurisdictions in which it is situated or carries on
business or is otherwise subject to Taxation and will pay all
Taxes shown to be due and payable on such returns or any
assessments made against it within the period stipulated for
such payment (other than those being contested in good faith
and where such payment may be lawfully withheld);
(v) Cost capitalisation policy
maintain a cost capitalisation policy consistent with the cost
capitalisation policy used in the preparation of the financial
statements referred to in clause 9.1(f)(i) or such other cost
capitalisation policy as may be approved by the auditors and
the Agent (acting on the instructions of the Majority Banks)
from time to time;
(w) Use of proceeds
ensure that the Borrower uses the Loan exclusively for the
purposes specified in clause 1.1;
(x) New Subsidiaries
it will and will procure that each Subsidiary that is or
becomes a member of the Group and which is not already a party
to this Agreement promptly upon such Subsidiary becoming a
member of the Group, (i) amends its articles of association to
permit without restriction any transfer of its shares in
favour of the Security Trustee (or its nominee) pursuant to
any Security Document and any transfer of its shares where
such transfer is duly executed by the Security Trustee (or its
nominee) pursuant to any power of sale under any Security
Document and (ii) executes and delivers a Supplemental Deed
and provides the Agent with such evidence as it may reasonably
request as to the power and authority of such party to enter
into such Supplemental Deed and that such Supplemental Deed
constitutes (subject to any qualifications contained in any
legal opinions delivered in connection therewith and
reasonably acceptable to the Majority Banks and for this
purpose any statement contained in the qualification to any
such legal opinion that no opinion is given or expressed in
relation to any particular matter shall be deemed to be a
qualification of such opinion as regards such matter) valid
and legally binding obligations of such party enforceable in
accordance with its terms. The parties hereto agree that upon
the execution and delivery of such Supplemental Deed by all
parties thereto such Subsidiary shall become a party to this
Agreement and a party to each relevant Security Document as a
Security Obligor;
(y) Agreed Hedging Programme
as from the date falling 90 days after the date of this
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Agreement, maintain interest rate hedging with a Bank in
accordance with the following principles:
(i) Fixed Rate (not including the Margin): to be agreed
between the Borrower and the Arrangers;
(ii) Notional Principal Amount: at any time no less than 50%
of the forecasted amount of the Loan from time to time
outstanding until 31 January 2001 as set out in the
Agreed Base Case;
(z) Shares in the Borrower
procure that any Restricted Person (and any nominee who holds
such shares on behalf of such person) who acquires any shares
in the Borrower after the date of this Agreement charges such
shares to the Security Trustee within 28 days of such
acquisition on substantially identical terms to the Comcast
Share Mortgage (the "New Mortgage") and provides the Agent
with such documents and evidence as it may reasonably require
that such charge has been duly executed and delivered by such
person and any such nominee and is legal, valid, binding and,
subject to any qualifications of a substantially similar
nature to those contained in the legal opinions referred to in
schedule 3, enforceable in accordance with its terms. For the
avoidance of doubt, the Agent shall not release any prior
security over the shares until it has received the New
Mortgage and other documents and evidence detailed above; and
(aa) Deposit of share certificates in Transferred Subsidiaries
promptly upon obtaining the instruments of transfer and stock
transfer forms in relation to the transfer from Comcast to the
Borrower of all Comcast's shareholding in each of Comcast
Darlington Limited, Comcast Teesside Limited and Cambridge
Holding Company Limited (the "Transferred Subsidiaries") in
each case duly stamped with any UK stamp duty due or duly
adjudicated as exempt from UK stamp duty, to deposit with the
Security Trustee (against redelivery to the Borrower by the
Security Trustee of the existing share certificates in the
Transferred Subsidiaries deposited with the Security Trustee)
all the share certificates evidencing the Borrower's legal
title to the shares in the Transferred Subsidiaries. The
Borrower further undertakes to pay any stamp duty payable in
relation to any such transfer promptly.
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<PAGE>
12 Negative covenants
12.1 Covenants
The Security Obligors jointly and severally undertake with each of the
Banks, each of the Arrangers, the Security Trustee and the Agent from
the date of this Agreement and so long as any monies are owing under
this Agreement or any of the Commitments remain outstanding that,
without the prior written consent of the Agent acting on the
instructions of the Majority Banks:
(a) Negative Pledge
they will not permit any Encumbrance (other than Permitted
Encumbrances) by any member of the 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 Group or any other person;
(b) No Merger
they will procure that no member of the Group merges or
consolidates with any other company or person save for mergers
between members of the Group ("Original Entities") into one
entity (the "Merged Entity") provided that:
(i) the Merged Entity is a member of the Group and is
liable for the obligations of the Original Entities
(including the obligations under this Agreement and the
Security Documents which remain unaffected thereby) and
entitled to the benefit of all the rights of the
Original Entities;
(ii) the Merged Entity is a Charging Subsidiary;
(iii)the Merged Entity has entered into Security Documents
which provide security over the same assets of at least
an equivalent nature and ranking to the security
provided by the Original Entities pursuant to any
Security Documents entered into by them and any
possibility of the Security Documents referred to in
this paragraph or paragraph (iv) below being challenged
or set-aside is not greater than any such possibility
in relation to the Security Documents entered into by
or in respect of the share capital of any Original
Entity; and
(iv) the entire 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 either
Original Entity;
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<PAGE>
(c) Disposals
they will procure that no member of the Group sells,
transfers, leases, lends or otherwise disposes of or ceases to
exercise control over the whole or any part of their present
or future undertakings, assets, rights or revenues whether by
one or a series of transactions related or not other than
Permitted Disposals;
(d) Borrowed Money
they will procure that no member of the Group creates,
assumes, incurs or otherwise permits to be outstanding any
Borrowed Money other than Permitted Borrowings;
(e) Guarantees
they will procure that no member of the Group incurs any
obligations or assumes any liability under any guarantee other
than Permitted Guarantees;
(f) Issue of Shares
they will ensure that neither the Borrower nor any other
member of the Group reduces its capital or purchases any class
of its shares and that no member of the Group issues any
shares of any class except that any Security Obligor may issue
shares to any other Security Obligor so long as such shares
are charged in favour of the Security Trustee pursuant to the
terms of a Security Document and there are delivered at the
same time to the Security Trustee the relevant share
certificates and blank stock transfer forms in respect
thereof;
(g) Investments
they will procure that no member of the Group (i) makes any
loan or advance to, or enters into any transaction having the
effect of lending money with, any person or otherwise acquires
for a consideration any document evidencing Indebtedness,
capital stock or other securities of any person or (ii)
acquires all or any substantial part of the assets, property
or business of any other person or any assets that constitute
a division or operating unit of the business of any other
person or creates or acquires any Subsidiary other than in the
case of any of (i) and (ii) above, Permitted Investments and
Permitted Intra-Group Transactions;
(h) Capital Expenditure
they will procure that no member of the Group incurs any
capital expenditure other than in relation to the business of
constructing, installing, operating and utilising cable
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<PAGE>
television and telecommunications systems in the area
permitted by the Licences or any directly related business
reasonably considered to be financially beneficial thereto;
(i) Swaps and Hedging
they will procure that no member of the Group enters into any
interest rate or currency swaps or other hedging arrangements
other than (i) directly relating to the risk management of any
Borrowed Money permitted to subsist by the terms of this
Agreement or (ii) (in addition to the agreed hedging programme
required under clause 11.1(y)) forward foreign exchange
contracts with a maturity of 12 months or less entered into in
the normal course of business in relation to future
liabilities of such member of the Group incurred in relation
to the construction, maintenance or operation of the Cable
Systems up to an aggregate notional principal amount at any
time outstanding of (in respect of all such contracts entered
into by members of the Group) (UK Pound)5,000,000, for a
period not in excess of 12 months;
(j) Change of Business
they will procure that the Group (taken as a whole) does not
change the nature of the business carried on by it in any
material respect from that carried on at the date of this
Agreement and that no member of the Group ceases to carry on a
business where any such cessation would or is reasonably
likely to have a Material Adverse Effect; and
(k) Memoranda and Articles of Association
the Borrower will not, and will procure that no Subsidiary
amends its Memorandum or Articles of Association in any way
which would restrict the ability of the Security Trustee to
exercise its rights under the Security Documents in respect of
the shares in such company.
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13 Financial covenants
13.1 Covenants
The Security Obligors jointly and severally undertake with each of the
Banks, the Arrangers, the Security Trustee and the Agent:
(a) Minimum Consolidated Net Operating Cash Flow
to ensure that on each Quarter Day whilst the ratio of the
average daily outstanding amount of Total Debt during the Six
Month Period ending on a Quarter Day to Consolidated
Annualised Net Operating Cash Flow for the Six Month Period
ending on such Quarter Day is equal to or less than 5.0:1
(with such obligation to be reinstated should such ratio
subsequently exceed 5.0:1), the amount of Consolidated Net
Operating Cash Flow for the Six Month Period ending on such
Quarter Day shall not be less than 80% of the projected
Consolidated Net Operating Cash Flow for such Six Month Period
as set out in the Agreed Base Case.
(b) Tranche B Loan/Consolidated Annualised Net Operating Cash Flow
to ensure that on each Quarter Day the ratio of the Tranche B
Loan on that Quarter Day to Consolidated Annualised Net
Operating Cash Flow calculated by reference to the Six Month
Period ending on such Quarter Day shall not exceed 6.5:1;
(c) Total Debt Interest Cover
to ensure that on each Quarter Day falling within the period
set out in column (1) below the ratio of Consolidated Net
Operating Cash Flow in respect of the Six Month Period ending
on such Quarter Day to Total Debt Interest Charges during such
Six Month Period shall not be less than the number set out
against such period in column (2) below
<TABLE>
<CAPTION>
(1) (2)
Period Ratio
<S> <C>
from the date of this agreement to (and including) 31 0.80:1
December 1998
from 1 January 1999 to (and including) 31 March 1999 0.90:1
from 1 April 1999 to (and including) 30 June 2000 1.00:1
from 1 July 2000 and thereafter 1.20:1
</TABLE>
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<PAGE>
13.2 Auditors certificate
If at any time the Majority Banks do not consider (acting reasonably)
that any figure set out in any Compliance Certificate issued by any
Authorised Officer is correct, they shall be entitled within 30 days of
the date of the delivery of such Compliance Certificate to the Agent
pursuant to clause 11.1 to call for a certificate from the Borrower's
auditors as to such figure. For such purposes the Borrower's auditors
shall act as independent experts and not as arbiters and every such
certificate shall be addressed to the Agent (on behalf of the Banks)
and be at the expense of the Borrower. The Majority Banks may only call
for one such certificate in any calendar year. If the Majority Banks
call for such a certificate all calculations under this Agreement by
reference to the relevant figure shall (i) until the Borrower's
auditors deliver the relevant certificate under this clause 13.2 be
made by reference to the figure set out in the relevant Compliance
Certificate delivered to the Agent under this Agreement and (ii)
following the delivery by the Borrower's auditors of a certificate
under this clause 13.2 be made by reference to such certificate and the
Borrower undertakes forthwith to take all action, including, without
limitation, the prepayment of all or part of the Loan so as to procure
that all action taken on the basis of the relevant Compliance
Certificate which on the basis of such auditors' certificate would not
have been permitted is reversed.
13.3 Cure provisions
The Banks, the Arrangers, the Security Trustee and the Agent agree that
there shall not be a breach of clauses 13.1(a), (b) or 13.1(c) which
would otherwise occur on any date when such covenants are tested (a
"Testing Day"), or in relation to a period ending on such Testing Day
if Subordinated Debt has been lent to the Borrower during the period
prior to the delivery of the relevant Compliance Certificate (the "Cure
Period") and/or equity share capital has been subscribed for in the
Borrower for cash during the Cure Period which, when added to the
Consolidated Net Operating Cash Flow for the relevant period would
result in the Borrower being in compliance with the relevant covenant
on the relevant Testing Day. All calculations under clauses 13.1(a),
(b) and 13.1(c) shall thereafter be to such Consolidated Net Operating
Cash Flow adjusted to take account of the provisions of this clause
13.3.
Provided that this clause 13.3 shall take effect (i) in relation to
breaches of clauses 13.1(a), (b) and 13.1(c) which would occur on no
more than two non consecutive Testing Days (or in relation to the
period ending on such Testing Days) and (ii) for the purposes of
calculating maximum Tranche A outstandings under clause 4 and
calculating the Tranche B Margin under clause 5 the effect of this
clause 13.3 shall be ignored so that Consolidated Net Operating Cash
Flow shall be calculated without adding the amount of such Subordinated
Debt or equity share capital.
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14 Events of Default
14.1 Events of Default
Each of the following events and circumstances is an Event of Default
(whether or not caused by any reason outside the control of any member
of the Group):
(a) Non-payment
(i) any principal amount due and payable under this Agreement
is not paid on the due date or (ii) an amount of interest due
and payable under this Agreement is not paid within 3 Banking
Days of the due date or (iii) any other sum due and payable
under this Agreement is not paid within 5 Banking Days of the
due date, and, in each such case, in the manner stipulated in
this Agreement; or
(b) Breach of certain obligations
any Security Obligor commits any breach of the undertakings
contained in clauses 3.4, 11.1(b), (c), (e), (k) and (z),
12.1(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) and (k)
and 13.1; or
(c) Breach of other obligations
any member of the Group commits any breach of or omits to
observe any of the obligations or undertakings expressed to be
assumed by them under this Agreement (other than failure to
pay any sum when due or any breach of the undertakings
referred to in (b)) above or any of the Security Documents
and, in respect of any such breach or omission which in the
reasonable opinion of the Majority Banks is capable of remedy,
such remedial action as the Majority Banks shall require is
not carried out within 28 days of the Agent notifying the
Borrower of such default and of such remedial action; or
(d) Misrepresentation
any representation or warranty made or deemed to be made or
repeated by or in respect of any member of the Group in or
pursuant to this Agreement or the Security Documents or in any
notice, certificate or statement referred to in or delivered
under this Agreement or the Security Documents is or proves to
have been incorrect or misleading in any material respect on
the date on which it was made or deemed to be made or
repeated; or
(e) Challenge to security
any Security Document is not or ceases to be effective or any
member of the Group shall in any way challenge, or any
proceedings shall in any way be brought to challenge (and in
the case of a proceeding brought by someone other than any
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<PAGE>
member of the Group shall continue unstayed for 30 days) the
prior status of the charges created by the Security Documents
or the validity or enforceability of the Security Documents
Provided that the creation or existence of the Permitted
Encumbrances shall be deemed not to be a challenge to the
prior status of such charges for the purposes of this clause
14.1(e); or
(f) Cross-default
(i) Borrowed Money of the Borrower or any of its Subsidiaries,
other than Borrowed Money owed by one Security Obligor to
another Security Obligor (which, in aggregate and including
for these purposes any Borrowed Money referred to in clause
14.1(f)(ii) and (iii) below, exceeds (UK Pound)1,000,000), is
not paid when due (or within any applicable grace period
expressly contained in the agreement relating to such Borrowed
Money in its original terms) or becomes due and payable prior
to the date when it would otherwise have become due or (ii)
any creditor of the Borrower or any of its Subsidiaries
declares any such Borrowed Money in excess of (UK
Pound)1,000,000 in aggregate due and payable prior to the date
when it would otherwise have become due or exercises any right
of mandatory repayment or repurchase, (iii) any creditor of
the Borrower or any of its Subsidiaries becomes entitled to
declare any such Borrowed Money in excess of (UK
Pound)1,000,000 (in aggregate) due and payable prior to the
date when it would otherwise have become due and as a result
is offered or granted any right or benefit or (iv) any
creditor of Comcast or any of its Subsidiaries declares any
Borrowed Money of Comcast or any of its Subsidiaries in excess
of (UK Pound)5,000,000 in aggregate due and payable prior to
the date when it would otherwise have become due or exercises
any right of mandatory repayment or repurchase; or
(g) Hedging Default
the Borrower or any of its Subsidiaries fails to make payment
of an aggregate amount of (UK Pound)1,000,000 (or the
equivalent in any other currency) in respect of any interest
rate or currency swap or other hedging arrangements entered
into by it or commits any breach or an event entitling the
relevant counterparty to terminate such swap or other hedging
arrangements (howsoever described) and the liability of the
Group to such counterparties at any time when such
counterparties are so entitled will, by reference to
prevailing market conditions at such time, be at least (UK
Pound)1,000,000 (or its equivalent in any other currency) in
aggregate; or
(h) Appointment of receivers and managers
(i) any administrative or other receiver is appointed of any
Security Obligor or any part of its assets and/or undertakings
or (ii) any other legal proceedings are taken which are not
irrevocably discharged or withdrawn within 28 days of the
commencement thereof to enforce any Encumbrance over all or
any part of the assets of any member of the Group; or
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(i) Insolvency
any Security Obligor is deemed unable to pay its debts within
the meaning of sections 123(1)(a), (b) or (e) or (2) of the
Insolvency Act 1986 on the basis that the reference in section
123(1)(a) to "(UK Pound)750" is taken to be a reference to
"(UK Pound)1,000,000" or the Borrower, any of its Subsidiaries
or any Subordinated Creditor otherwise becomes insolvent or
stops or suspends making payments (whether of principal or
interest) with respect to all or any class of its debts or is
unable or announces an intention so to do or admits inability
to pay its debts as they fall due (but neither the Borrower
nor any of its Subsidiaries shall be deemed insolvent for the
purposes of this clause 14.1(i) by reason only of the
application of the text in section 123(2) of the Insolvency
Act 1986 or the existence of the circumstances described in
that section); or
(j) Legal process
any judgment or order made against any Security Obligor for an
amount in excess of (UK Pound)20,000 is not stayed or complied
with within 28 days or a creditor attaches or takes possession
of, or a distress, execution, sequestration, diligence or
other process is levied or enforced upon or sued out against,
any material part of the undertaking, assets, rights or
revenues of any Security Obligor and is not discharged within
28 days; or
(k) Compositions
any steps are taken or negotiations commenced, by any Security
Obligor or by their respective creditors with a view to
proposing any kind of composition, compromise or arrangement
involving such company and any group or class of its creditors
generally; or
(l) Winding-up
(i) any Security Obligor takes any action or any legal
proceedings are started (not being action or proceedings which
can be demonstrated to the satisfaction of the Agent by
providing an opinion of a leading firm of London solicitors to
that effect, is frivolous, vexatious or an abuse of the
process of the court or relates to a claim to which such
person has a good defence and which is being vigorously
contested by such body) for any Security Obligor to be
adjudicated or found bankrupt or insolvent (other than for the
purpose of an amalgamation or reconstruction previously
approved in writing by the Agent acting on the instructions of
the Majority Banks) or (ii) an order is made or resolution
passed for the winding-up of any other Security Obligor or a
notice is issued convening a meeting for the purpose of
passing any such resolution; or
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(m) Administration
any petition is presented or other step is taken for the
purpose of the appointment of an administrator of any Security
Obligor or an administration order is made in relation to any
Security Obligor; or
(n) Analogous proceedings
there occurs, in relation to any Security Obligor in any
country or territory in which any of them carries on business
or to the jurisdiction of which courts any part of their
respective assets is subject, any event which corresponds
with, or has an effect equivalent or similar to, any of those
mentioned in clauses 14.1(h) to (m) inclusive or any Security
Obligor (subject always to equivalent grace periods and de
minimis amounts as are referred to in such clauses being
exceeded) otherwise becomes subject, in any such country or
territory, to the operation of any law relating to insolvency,
bankruptcy or liquidation; or
(o) Change of control of the Borrower or any Subsidiary
(i) any Security Obligor (other than the Borrower itself)
ceases to be a wholly owned and controlled Subsidiary
of the Borrower; or
(ii) Comcast ceases beneficially to own directly or
indirectly that part of the share capital of the
Borrower carrying the right to receive more than 50 per
cent. of any distributions of the Borrower or that part
of the share capital of the Borrower carrying more than
50 per cent. of the voting rights attributable to the
whole of the issued share capital of the Borrower;
(iii)the Ultimate Shareholder ceases beneficially to own
directly or indirectly that part of the share capital
of Comcast carrying more than 50 per cent. of the
voting rights attributable to the whole of the issued
share capital of the Borrower;
(p) Principal Agreements
(i) any Principal Agreement is terminated, suspended,
revoked or cancelled or otherwise ceases to be in full
force and effect unless services of a similar nature to
those provided pursuant to such Principal Agreement are
at all times provided to the Group on similar
commercial terms or on terms not materially less
beneficial to the relevant member of the Group save
where any such services are provided on more onerous
terms to the relevant member of the Group due to the
mandatory requirements of OFTEL, the Office of Fair
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<PAGE>
Trading, the Department of Trade and Industry, the
European Commission or any other regulatory body and
any such termination, suspension, revocation,
cancellation or cessation would have a Material
Financial Adverse Effect; or
(ii) any alteration or variation is made to any term of any
Principal Agreement which would have a Material
Financial Adverse Effect; or
(iii)any party breaches any term of or repudiates any of
its obligations under any of the Principal Agreements
where such breach or repudiation would have a Material
Financial Adverse Effect; or
(q) Unlawfulness
it becomes unlawful at any time for the Borrower or any other
member of the Group or any Subordinated Creditor to perform
any of their respective material (in the opinion of the
Majority Banks) obligations under this Agreement or the
Security Documents or any of the material (in the opinion of
the Majority Banks) obligations of any member of the Group or
any Subordinated Creditor under this Agreement and the
Security Documents become unenforceable in any way or there
ceases to be a first priority charge over the relevant
property or assets of the Borrower or any other member of the
Group as intended and created by the Security Documents save
for Permitted Encumbrances; or
(r) Environmental matters
as a result of any Environmental Law: (a) the Agent, any of
the Arrangers, the Security Trustee or any of the Banks
becomes, in the opinion of the Agent, subject to a material
obligation (actual or contingent, in the case of any
contingent obligation, being one which, at the relevant time,
would be likely to arise) in relation to any Relevant
Substance on or from any property, owned, occupied or leased
by any member of the Group; or (b) the rights and claims of
the Agent, any of the Arrangers, the Security Trustee, or any
of the Banks under this Agreement or any of the Security
Documents become subordinated to the claims and rights of any
competent agency of the United Kingdom or the European
Community; or
(s) Telecommunications and Cable Laws
any member of the Group fails to comply with any term or
condition of any Telecommunications and Cable Law where such
non-compliance would or is reasonably likely to have a
Material Adverse Effect, in the opinion of the Agent; or
(t) Repudiation
any member of the Group repudiates this Agreement or any
Security Document to which it is a party or does or causes or
permits to be done any act or thing evidencing an intention to
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repudiate this Agreement or any such Security Document; or
(u) Subordinated Creditors
(i) any Subordinated Creditor commits any breach of or
omits to observe any of the obligations or undertakings
expressed to be assumed by it under a Deed of
Subordination and in respect of any such breach or
omission which, in the opinion of the Agent (acting on
the instructions of the Majority Banks (acting
reasonably)) is capable of remedy, such action as the
Agent may require shall not have been taken within 28
days of the Agent notifying such Subordinated Creditor
thereof and of such required action; or
(ii) any representation or warranty made or deemed to be
made or repeated by or in respect of any Subordinated
Creditor in or pursuant to any Deed of Subordination is
or proves to have been incorrect or misleading in any
material respect on the date on which it was made or
deemed to be made or repeated; or
(iii)any Subordinated Creditor is not or ceases to be bound
by a Deed of Subordination; or
(iv) any payment due from a member of the Group to a
Subordinated Creditor is not or ceases to be
subordinated to the amounts owing under this Agreement;
or
(v) any Subordinated Creditor or any liquidator,
administrator or administrative or other receiver (or
similar officer) of any Subordinated Creditor takes
steps to contest the subordination effected by a Deed
of Subordination; or
(v) Share Mortgage
(i) any Mortgagor commits any breach of or omits to
observe any of its obligations or undertakings
expressed to be assumed by it under any Share
Mortgage and in respect of any such breach or
omission which, in the opinion of the Agent (acting
on the instructions of the Majority Banks (acting
reasonably)) is capable of remedy, such action as the
Agent may require shall not have been taken within 28
days of the Agent notifying such Mortgagor thereof of
such required action; or
(ii) any representation or warranty made or deemed to be
made or repeated by or in respect of any Mortgagor in
or pursuant to any Share Mortgage is or proves to
have been incorrect or misleading in any material
respect on the date on which it was made or deemed to
be made or repeated; or
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(iii) any Mortgagor is not or ceases to be bound by any
Share Mortgage; or
(iv) any Share Mortgage is not or ceases to constitute a
valid mortgage and/or charge over the relevant shares
in the Borrower; or
(v) any Mortgagor or any liquidator, administrator or
administrative or other receiver (or similar officer)
of any Mortgagor takes steps to contest any Share
Mortgage and/or charge effected by a Share Mortgage;
or
(w) Seizure
all or a material part of the undertakings, assets, rights or
revenues of or shares or other ownership interests in the
Group (taken as a whole) are seized, nationalised,
expropriated or compulsorily acquired by or under the
authority of any government; or
(x) Material events
any other event occurs or circumstances arise which in the
opinion of the Agent acting on the instructions of the
Majority Banks is likely to have a Material Adverse Effect.
14.2 Acceleration
At any time after the happening of any Event of Default, so long as the
same is continuing, the Agent may, and if so requested by the Majority
Banks shall, without prejudice to any other rights of the Banks, by
notice to the Borrower declare that:
(a) the obligation of each Bank to make its Commitment available
shall be terminated, whereupon the Commitments shall be
reduced to zero forthwith; and/or
(b) the Loan and all interest and commitment commission accrued
and all other sums payable under this Agreement have become
due and payable, whereupon the same shall, immediately, or on
demand or otherwise in accordance with the terms of such
notice, become due and payable; and/or
(c) it and/or the Security Trustee shall exercise any of the
rights granted to the Agent, the Security Trustee or the Banks
under the Security Documents.
14.3 On demand basis
If, pursuant to clause 14.2(b), the Agent declares the Loan to be due
and payable on demand then, at any time thereafter, the Agent may (and,
if so instructed by the Majority Banks, shall) by written notice to the
Borrower: (a) call for repayment of the Loan on such date as may be
specified in such notice whereupon the Loan shall become due and
payable on the date so specified together with all interest and
commitment commission accrued and all other sums payable under this
Agreement or (b) withdraw such declaration with effect from the date
specified in such notice.
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15 Indemnities
15.1 Miscellaneous indemnities
The Borrower shall on demand indemnify each Bank, each Arranger, the
Security Trustee and the Agent, without prejudice to any of their other
rights under this Agreement, against any loss (including in the case of
(a) or (b) below loss of Margin for the Interest Period during which
such default in payment or other Event of Default occurs) or expense
which such Bank, such Arranger, the Security Trustee or the Agent shall
certify as sustained or incurred by it as a consequence of:
(a) any default in payment by the Borrower of any sum under this
Agreement when due;
(b) the occurrence of any other Event of Default;
(c) any repayment or prepayment of the Loan or part thereof being
made otherwise than on the last day of an Interest Period
relating to the part of the Loan repaid or prepaid; or
(d) any Advance not being made for any reason (excluding any default
by the Agent or any Bank) after a Drawdown Notice or Rollover
Notice has been given,
including, but not limited to, any loss or expense sustained or
incurred by such Bank in maintaining or funding its Contribution or any
part thereof or in liquidating or re-employing deposits from third
parties acquired or contracted for to fund its Contribution or any part
thereof or any other amount owing to such Bank.
15.2 Currency indemnity
If any sum due from the Borrower under this Agreement or any order or
judgment given or made in relation hereto has to be converted from the
currency (the "first currency") in which the same is payable under this
Agreement or under such order or judgment into another currency (the
"second currency") for the purpose of (a) making or filing a claim or
proof against the Borrower, (b) obtaining an order or judgment in any
court or other tribunal or (c) enforcing any order or judgment given or
made in relation to this Agreement, the Borrower agrees to indemnify
and hold harmless the Agent, each Arranger, the Security Trustee, and
each Bank from and against any loss suffered as a result of any
difference between (i) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second
currency and (ii) the rate or rates of exchange at which the Agent,
such Arranger, the Security Trustee or such Bank may in the ordinary
course of business purchase the first currency with the second currency
upon receipt of a sum paid to it in satisfaction, in whole or in part,
of any such order, judgment, claim or proof. Any amount due from the
Borrower under this clause 14.2 shall be due as a separate debt and
shall not be affected by judgment being obtained for any other sums due
under or in respect of this Agreement and the term "rate of exchange"
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includes any premium and costs of exchange payable in connection with
the purchase of the first currency with the second currency.
15.3 Environmental indemnity
The Borrower agrees to indemnify on demand each Bank, each Arranger,
the Security Trustee and the Agent, and their respective officers,
employees, agents and delegates (together the "Indemnified Parties") in
respect of which each Bank, each Arranger, the Security Trustee and the
Agent holds this indemnity on trust, without prejudice to any of their
other rights under this Agreement, against any loss, liability, action,
claim, demand, cost, expense, fine or other outgoing whatsoever whether
in contract, tort, delict or otherwise and whether arising at common
law, in equity or by statute which the relevant Indemnified Party shall
certify as sustained or incurred by it at any time as a consequence of,
or relating to, or arising directly or indirectly out of, any
Environmental Claims made or asserted against such Indemnified Party
which would not have arisen if this Agreement had not been executed and
which was not caused by the negligence or wilful default of the
relevant Indemnified Party.
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16 Unlawfulness and increased costs; mitigation
16.1 Unlawfulness
If it is or becomes contrary to any law or regulation for any Bank to
contribute to Advances or to maintain its Commitment or fund or
maintain its Contribution, such Bank shall promptly, through the Agent,
notify the Borrower whereupon (a) such Bank's Commitment shall be
reduced to zero and (b) the Borrower shall be obliged to prepay the
Contribution of such Bank on the earlier of (i) the date falling 30
days after the date of receipt by the Borrower of the relevant notice
pursuant to this clause or (ii) the latest date permitted by the
relevant law or regulation. Without prejudice to the reduction of such
Bank's Commitment to zero or the obligations of the Borrower to make
such repayment, the Borrower, the Agent and such Bank shall negotiate
for a period not exceeding 14 days with a view to such Bank making
available its Commitment and/or funding or maintaining its Contribution
in whole or in part in a manner which is not unlawful.
16.2 Increased costs
If the result of any change in, or in the interpretation or application
of, or the introduction of any law (including, without limitation, the
proposed Bank of England Act following the Bank of England Bill 1997)
or any regulation, request or requirement (whether or not having the
force of law, but, if not having the force of law, with which the
relevant Bank or, as the case may be, its holding company habitually
complies) including, without limitation, those relating to Taxation,
capital adequacy, liquidity, reserve assets, cash ratio deposits and
special deposits is to:
(a) subject any Bank to Taxes or change the basis of Taxation of any
Bank with respect to any payment under this Agreement (other than
Taxes or Taxation on the overall net income, profits or gains of
such Bank imposed in the jurisdiction in which its principal or
lending office under this Agreement is located and other than
Taxes currently payable by such Bank on amounts received by it
under this Agreement but only to the extent so payable at the
date hereof); and/or
(b) increase the cost to, or impose an additional cost on, any Bank
or its holding company in making or keeping available all or part
of such Bank's Commitment or maintaining or funding such Bank's
Contribution; and/or
(c) reduce the amount payable or the effective return to any Bank
under this Agreement; and/or
(d) reduce any Bank's or its holding company's rate of return on its
overall capital by reason of a change in the manner in which it
is required to allocate capital resources to such Bank's
obligations under this Agreement; and/or
(e) require any Bank or its holding company to make any additional
payment or forego (to a greater extent than at the date hereof) a
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return calculated by reference to or on any amount received or
receivable by such Bank under this Agreement; and/or
(f) require any Bank or its holding company to incur or sustain a
loss (including a loss of future potential profits) additional to
that incurred or sustained at the date hereof by reason of being
obliged to deduct a greater part of such Bank's Commitment or
Contribution from its capital for regulatory purposes, than is
required to be deducted at the date hereof
then and in each such case (but subject to clauses 16.3 and 16.4):
(i) such Bank shall notify the Borrower through the Agent in
writing of such event promptly upon its becoming aware of
the same; and
(ii) the Borrower agrees to pay on demand, made at any time,
whether or not such Bank's Contribution has been repaid, to
the Agent for the account of such Bank the amount which such
Bank specifies (in a certificate setting forth the basis of
the computation of such amount but not including any matters
which such Bank or its holding company regards as
confidential) is required to compensate such Bank and/or (if
and to the extent that such holding company has passed the
cost of the same on to such Bank) its holding company for
such liability to Taxes, increased or additional cost,
reduction, payment or foregone return.
For the purposes of this clause 16 "holding company" means, in relation
to a Bank, the company or entity (if any) within the consolidated
supervision of which such Bank is included.
16.3 Exceptions
Nothing in clause 16.2 shall entitle any Bank to compensation for any
such liability to Taxes, increased or additional cost, reduction,
payment or foregone return (a) to the extent that the same is taken
into account in calculating the Additional Cost or (b) to the extent
that the same is the subject of an additional payment under clause 8.7
or would have been but for clause 8.8.
16.4 Further exception
Nothing in clause 16.2 shall entitle any Bank to receive any amount in
respect of compensation for any such increased or additional cost,
reduction, payment or foregone return which arises as a consequence of
any law or regulation implementing the proposals as currently drafted
for international convergence of capital measurement and capital
standards published by the Basle Committee on Banking Regulations and
Supervisory Practices in July 1988.
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16.5 Mitigation
If, in respect of any Bank, circumstances arise which would, or would
upon the giving of notice, result in:
(a) the Borrower being required to make an increased payment to such
Bank pursuant to clause 8.7;
(b) the reduction of such Bank's Commitment to zero or the Borrower
being required to prepay such Bank's Contribution pursuant to
clause 16.1; or
(c) the Borrower being required to make a payment to such Bank to
compensate such Bank for an increased cost, reduction, payment or
foregone return pursuant to clause 16.2(ii),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under clauses 8 and 16, such Bank shall, in
consultation with the Agent, endeavour to take such reasonable steps
(and/or in the case of clause 16.2(ii) and where such increased or
additional cost, reduction, payment, return or loss is that of its
holding company, endeavour to procure that its holding company takes
reasonable steps) as may be open to it to mitigate or remove such
circumstances including (without limitation) the transfer of its rights
and obligations under this Agreement to another bank or financial
institution acceptable to the Borrower or a change of lending office of
such Bank to one acceptable to the Borrower unless, in either case, to
do so might (in the opinion of such Bank) be prejudicial to such Bank
or be in conflict with such Bank's general banking policies or involve
such Bank in expense or an increased administration burden.
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17 Set-off and pro rata payments
17.1 Set-off
If an Event of Default is subsisting, the Borrower authorises each Bank
to apply any credit balance to which the Borrower is then entitled on
any account of the Borrower with such Bank at any of its branches in or
towards satisfaction of any sum then due and payable from the Borrower
to such Bank under this Agreement. For this purpose each Bank is
authorised to purchase with the moneys standing to the credit of such
account such other currencies as may be necessary to effect such
application. No Bank shall be obliged to exercise any right given to it
by this clause. Each Bank shall notify the Agent and the Borrower
forthwith upon the exercise or purported exercise of any right of
set-off giving full details in relation thereto and the Agent shall
inform the other Banks. Failure by any Bank to give such notice shall
not affect the validity of the exercise of such Bank's right of
set-off.
17.2 Pro Rata Payments
(a) If at any time any Bank (the "Recovering Bank") receives or
recovers any amount owing to it by the Borrower under this
Agreement by direct payment, set-off or in any manner (but
excluding any recoveries by virtue of any cash management or
interest netting arrangements operated by any Bank in its
capacity as a provider of day to day banking services to the
Group to the extent that such arrangements are permitted pursuant
to this Facility) other than by payment through the Agent
pursuant to clause 8.1 or 8.11 (not being a payment received from
an Assignee, a Substitute or a Sub-Participant), the Recovering
Bank shall, within two Banking Days of such receipt or recovery
(a "Relevant Receipt") notify the Agent of the amount of the
Relevant Receipt. If the Relevant Receipt exceeds the amount
which the Recovering Bank would have received if the Relevant
Receipt had been received by the Agent and distributed pursuant
to clause 8.1 or 8.11 (as the case may be) then:
(i) within two Banking Days of demand by the Agent, the
Recovering Bank shall pay to the Agent an amount equal to
the excess;
(ii) the Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the Borrower
and shall distribute the same to the Banks (other than the
Recovering Bank) in accordance with clause 8.11, and
(iii)as between the Borrower and the Recovering Bank the excess
amount so re-distributed shall be treated as not having been
paid but the obligations of the Borrower to the other Banks
shall, to the extent of the amounts so re-distributed to
them, be treated as discharged.
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(b) If any part of the Relevant Receipt subsequently has to be wholly
or partly refunded by the Recovering Bank (whether to a
liquidator or otherwise) each Bank to which any part of such
Relevant Receipt was so re-distributed shall on request from the
Recovering Bank repay to the Recovering Bank such Bank's pro rata
share of the amount which has to be refunded by the Recovering
Bank.
(c) Each Bank shall on request supply to the Agent such information
as the Agent may from time to time request for the purpose of
this clause 17.2.
(d) Notwithstanding the foregoing provisions of this clause 17.2 no
Recovering Bank shall be obliged to share any Relevant Receipt
which it receives or recovers pursuant to legal proceedings taken
by it to recover any sums owing to it under this Agreement with
any other party which has a legal right to, but does not, either
join in such proceedings or commence and diligently pursue
separate proceedings to enforce its rights in the same or another
court (unless the proceedings instituted by the Recovering Bank
are instituted by it without prior notice having been given to
such party through the Agent).
17.3 No release
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 17.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 17.2.
17.4 No charge
The provisions of this clause 17 shall not, and shall not be construed
so as to, constitute a charge by a Bank over all or any part of a sum
received or recovered by it in the circumstances mentioned in clause
17.2.
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18 Assignment, Substitution and Lending Offices
18.1 Benefit and Burden
This Agreement shall be binding upon, and enure for the benefit of, the
Banks, the Arrangers, the Agent, the Security Trustee, each member of
the Group and their respective successors.
18.2 No Assignment by the Borrower or its Subsidiaries
No member of the Group may assign or transfer any of its rights or
obligations under this Agreement.
18.3 Assignment by Banks
Each Bank (an "Assignor Bank") may assign all or any part of its rights
in respect of its Contribution (being at least (UK Pound)3,000,000 and
an integral multiple of (UK Pound)1,000,000) to any Qualifying Bank (an
"Assignee") with the prior written consent of the Borrower (which shall
not be unreasonably withheld or delayed) provided that no such consent
is necessary if such Assignee is a Qualifying Bank which is a wholly
owned Subsidiary of such Assignor Bank or a Qualifying Bank of whom
such Assignor Bank is a wholly owned Subsidiary.
18.4 Substitution
Each Bank (a "Transferor Bank") may transfer, by way of novation, all
or any part of its rights, benefits and/or obligations in respect of
its Commitment and/or Contribution being at least (UK Pound)3,000,000
and an integral multiple of (UK Pound)1,000,000 under this Agreement
and the Security Trust Deed to any person (a "Substitute") with the
prior written consent of the Borrower (which shall not be unreasonably
withheld or delayed) provided that no such consent is necessary if such
Substitute is a wholly owned Subsidiary of such Transferor Bank or a
person of whom such Transferor Bank is a wholly owned Subsidiary. Any
such novation shall be effected upon five Banking Days' prior notice by
delivery to the Agent of a duly completed Substitution Certificate duly
executed by such Bank, the Substitute and the Agent (for itself, the
Arrangers, the Security Trustee, the Borrower, its Subsidiaries and the
other Banks). On the effective date specified in a Substitution
Certificate so executed and delivered, to the extent that they are
expressed in such Substitution Certificate to be the subject of the
novation effected pursuant to this clause 18.4:
(a) the existing parties to this Agreement and the Bank party to
the relevant Substitution Certificate shall be released from
their respective obligations towards one another under this
Agreement and the Security Trust Deed ("discharged
obligations") and their respective rights against one another
under this Agreement ("discharged rights") shall be cancelled;
(b) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement and the Security
Trust Deed (other than the Bank party to such Substitution
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Certificate) shall assume obligations towards each other which
differ from the discharged obligations only insofar as they
are owed to or assumed by such Substitute instead of to or by
such Bank;
(c) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement and the Security
Trust Deed (other than the Bank party to such Substitution
Certificate) shall acquire rights against each other which
differ from the discharged rights only insofar as they are
exercisable by or against such Substitute instead of by or
against such Bank
and, on the date upon which such novation takes effect the Substitute
shall pay to the Agent for its own account a fee of (UK Pound)750. The
Agent shall promptly notify the Borrower of the receipt by it of any
Substitution Certificate and deliver a copy thereof to the Borrower.
18.5 Reliance on Substitution Certificate
The Agent, the Banks, the Arrangers, the Security Trustee and each
member of the Group shall be fully entitled to rely on any Substitution
Certificate delivered to the Agent in accordance with the foregoing
provisions of this clause 18 which is complete and regular on its face
as regards its contents and purportedly signed on behalf of the
relevant Bank and the Substitute and none of the Agent, the Banks, the
Arrangers, the Security Trustee or any member of the Group shall have
any liability or responsibility to any party as a consequence of
placing reliance on and acting in accordance with any such Substitute
Certificate if it proves to be the case that the same was not authentic
or duly authorised.
18.6 Authorisation of Agent
Each member of the Group, each Arranger, the Security Trustee and each
Bank irrevocably authorises the Agent to counter-sign each Substitution
Certificate on its behalf without any further consent of, or
consultation with such member of the Group, such Arranger, the Security
Trustee or such Bank except, in the case of the Borrower, the consent
required pursuant to clause 18.3 or 18.4.
18.7 Construction of certain references
If any Bank assigns all or any part of its rights or novates all or any
part of its rights, benefits and obligations as provided in clause 18.3
or 18.4 all relevant references in this Agreement to such Bank shall
thereafter be construed as a reference to such Bank and/or its Assignee
or Substitute (as the case may be) to the extent of their respective
interests.
18.8 Lending offices
Each Bank shall lend through its office at the address specified in
Schedule 1 or, as the case may be, in any relevant Substitution
Certificate or through any other office of such Bank selected from time
to time by such Bank through which such Bank wishes to lend for the
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purposes of this Agreement. If the office through which a Bank is
lending is changed pursuant to this clause 18.8, such Bank shall notify
the Agent promptly of such change.
18.9 Disclosure of information
Save as permitted pursuant to the terms of this Agreement or the
relevant Security Document any information furnished pursuant to this
Agreement or any Security Document to which the Borrower or any other
member of the Group (as the case may be) is a party to the Agent, the
Arranger, the Security Trustee or the Banks shall be kept confidential
by the recipient and the Agent, the Arrangers, the Security Trustee and
the Banks, save that the provisions of this clause 18.9 shall not
apply:
(a) to any information already known to the recipient;
(b) to any information subsequently received by the recipient
which it would otherwise be free to disclose;
(c) to any information which is or becomes public knowledge
otherwise than as a result of a breach by any person of this
clause 18.9 or of any confidentiality undertaking entered into
pursuant to clause 18.10; and
(d) to any extent that the recipient is required to disclose the
same pursuant to any law or order of any court or order or
request of any governmental agency with whose instructions the
recipient habitually complies.
18.10 Confidentiality undertaking
Any Bank, the Security Trustee, any Arranger or the Agent may, having
obtained the prior consent of the Borrower (such consent not to be
unreasonably withheld) disclose to a prospective Assignee or Substitute
or to any other person who may propose entering into contractual
relations with such Bank, the Security Trustee, any Arranger or the
Agent in relation to this Agreement or any Security Document any
information referred to in clause 18.9 subject to the prospective
Assignee or Substitute or other person first entering into a
confidentiality undertaking with the Borrower and the other members of
the Group in substantially the same terms as clause 18.9 and this
clause 18.10.
18.11 Limitation on certain obligations
If, at the time of any assignment, novation or change in lending office
by any Bank, circumstances exist which would oblige the Borrower to pay
to the Assignee, Substitute (or, in the case of change in lending
office, the relevant Bank) under clauses 8.7 or 16.2 any sum in excess
of the sum (if any) which it could have been obliged to pay to that
Bank under the relevant clause in the absence of that novation or
change of lending office, the Borrower shall not be obliged to pay that
excess.
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19 Arrangers, Agent and Reference Banks
19.1 Appointment of Agent
Each Bank irrevocably appoints the Agent as its agent for the purposes
of this Agreement and any relevant Security Document and authorises the
Agent (whether or not by or through employees or agents) to take such
action on such Bank's behalf and to exercise such rights, remedies,
powers and discretions as are specifically delegated to the Agent by
this Agreement and/or any relevant Security Document, together with
such powers and discretions as are reasonably incidental thereto. None
of the Agent, the Arrangers or the Security Trustee shall, however,
have any duties, obligations or liabilities to the Banks beyond those
expressly stated in this Agreement and/or the Security Documents.
19.2 Amendments to this Agreement
(a) Subject to clause 19.2(b) and save where otherwise provided in
this Agreement, the Agent may, with the consent of the Majority
Banks (or if and to the extent expressly authorised by the other
provisions of this Agreement), amend, modify or otherwise vary or
waive breaches of, or defaults under, or otherwise excuse
performance of, any provision of this Agreement or any other
Security Document entered into in favour of the Agent. Any such
action so authorised and effected by the Agent shall be promptly
notified to the Banks by the Agent and shall be binding on all of
the Banks.
(b) Except with the prior written consent of all of the Banks, the
Agent shall not have authority on behalf of the Banks (A) to
agree with any member of the Group any amendment to this
Agreement or to grant waivers in respect of breaches of or
defaults under this Agreement or to excuse performance of this
Agreement which would (i) reduce the Margin, (ii) extend the due
date or reduce the amount of any payment of principal, interest
or other amount payable under this Agreement, (iii) change the
currency in which any amount is payable under this Agreement,
(iv) increase any Bank's Commitment, (v) change the definition of
"Majority Banks" in clause 1.2, change clauses 3.3, 4.2, 4.3,
4.4, 16.2, 17.2 or 18.2, (vi) change this clause 19.2, (B) to
release any asset of whatever nature that is subject to a
Security Document unless such release is to permit the disposal
or other dealing with such asset in accordance with the terms of
this Agreement or the relevant Security Document or (C) to
release any member of the Group from any of its obligations under
this Agreement and the Security Documents.
19.3 Rights of Agent, Security Trustee and each Arranger as Bank; no
partnership
With respect to its own Commitment and Contribution (if any) the Agent,
the Security Trustee and each Arranger shall have the same rights and
powers under this Agreement as any other Bank and may exercise the same
as though it were not performing the duties and functions delegated to
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it under this Agreement and/or the Security Documents and the term
"Banks" shall, unless the context clearly otherwise indicates, include
the Agent, the Security Trustee and each Arranger in its individual
capacity as a Bank. This Agreement shall not and shall not be construed
so as to constitute a partnership between the parties or any of them.
19.4 No liability of the Arrangers, the Security Trustee and Agent
None of the Arrangers, the Security Trustee or the Agent shall:
(a) be obliged to request any certificate or opinion under clause 10
or 13 or to make any enquiry as to the use of the proceeds of the
Loan unless (in the case of the Agent) so required in writing by
any Bank, in which case the Agent shall promptly make the
appropriate request of the Borrower, or be obliged to make any
enquiry as to any default by the Borrower in the performance or
observance of any of the provisions of this Agreement or as to
the existence of a Default unless (in the case of the Agent) the
Agent has actual knowledge thereof or has been notified in
writing thereof by a Bank, in which case the Agent shall promptly
notify the Banks of the relevant event or circumstance; or
(b) be liable to any Bank for any action taken or omitted under or in
connection with this Agreement or the Loan unless caused by their
or its gross negligence or wilful misconduct.
For the purpose of this clause 19 neither the Agent nor the Security
Trustee shall be treated as having actual knowledge of any matter of
which the corporate finance or any other division outside the corporate
lending or loan administration departments of the person for the time
being acting as the Agent or the Security Trustee, as the case may be,
may become aware in the context of corporate finance or advisory
activities from time to time undertaken by the Agent or the Security
Trustee, as the case may be, for any member of the Group, any Ultimate
Shareholder or any of their respective Subsidiaries or Associated
Companies.
19.5 Agent's duty to notify and take action
The Agent shall:
(a) promptly notify each Bank of the contents of each notice,
certificate or other document received by the Agent from the
Borrower under or pursuant to clauses 6.6, 6.7 and 11 and provide
each Bank with a copy of each set of financial statements,
Monthly Management Accounts or Quarterly Management Accounts
delivered to the Agent under clause 11.1(f), (g) or (h); and
(b) (subject to its being indemnified to its satisfaction) take such
action or, as the case may be, refrain from taking such action
with respect to any Default of which the Agent has actual
knowledge as the Majority Banks or Banks (as the case may be) may
reasonably direct.
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19.6 Identity of the Banks
The Agent may deem and treat (a) each Bank as the person entitled to
the benefit of the Contribution of such Bank for all purposes of this
Agreement unless and until a notice of assignment of such Bank's
Contribution or any part thereof or a Substitution Certificate shall
have been filed with the Agent, and (b) the office set opposite the
name of each Bank in part B of schedule 1 or, as the case may be, in
any relevant Substitution Certificate as such Bank's lending office
unless and until a written notice of change of lending office shall
have been received by the Agent; and the Agent may act upon any such
notice unless and until the same is superseded by a further such
notice.
19.7 Non-reliance on the Arrangers, the Security Trustee or the Agent
Each Bank acknowledges that it has not relied on any statement,
opinion, forecast or other representation made by the Arrangers, the
Security Trustee or the Agent to induce it to enter into this Agreement
and that it has made and will continue to make, without reliance on the
Agent, the Arrangers or the Security Trustee and based on such
documents as it considers appropriate, its own appraisal of the
creditworthiness of each member of the Group and its own independent
investigation of the financial condition and affairs of each member of
the Group and each Mortgagor or Subordinated Creditor, in connection
with the making and continuation of the Loan under this Agreement. None
of the Arrangers, the Security Trustee or the Agent shall have any duty
or responsibility, either initially or on a continuing basis, to
provide any Bank with any credit or other information with respect to
any member of the Group, any Mortgagor or any Subordinated Creditor
whether coming into their or its possession before the making of any
Advance or at any time or times thereafter, other than (in the case of
the Agent) as provided in clause 19.5(a).
19.8 No Responsibility on Arrangers, Security Trustee or Agent for
Borrower's, etc. performance
None of the Arrangers, the Security Trustee or the Agent shall have any
responsibility to any Bank (a) on account of the failure of any member
of the Group, any Mortgagor or any Subordinated Creditor to perform
their respective obligations under this Agreement or the Security
Documents or (b) for the financial condition of any member of the
Group, any Mortgagor or any Subordinated Creditor, or (c) for the
completeness or accuracy of any statements, representations or
warranties in this Agreement, the Security Documents or any document
delivered under this Agreement or the Security Documents or (d) for the
execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of this Agreement or the
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Security Documents or of any certificate, report or other document
executed or delivered under this Agreement or the Security Documents or
otherwise in connection with the Loan or its negotiation or (e) for
acting (or, as the case may be, refraining from acting) in accordance
with the instructions of the Majority Banks or all of the Banks (as the
case may be). The Arrangers, the Security Trustee and the Agent shall
be entitled to rely on any communication, instrument or document
believed by them or it to be genuine and correct and to have been
signed or sent by the proper person and shall be entitled to rely as to
legal or other professional matters on opinions and statements of any
legal or other professional advisers selected or approved by them or
it.
19.9 Other dealings
The Arrangers, the Security Trustee and the Agent may, without any
liability to account to the Banks, accept deposits from, lend money to,
and generally engage in any kind of banking or trust business with,
each member of the Group, any Mortgagor or any Subordinated Creditor or
any of the Banks as if they or it were not an Arranger, the Security
Trustee or the Agent (as the case may be).
19.10 Reimbursement and indemnity by Banks
Each Bank shall reimburse the Arrangers, the Security Trustee and the
Agent (rateably in accordance with such Bank's Commitment, at any time
before the making of the first Advance or if no Advance is then
outstanding, or Contribution, at any other time) to the extent that
such Arranger, the Security Trustee or the Agent is not reimbursed by
the Borrower, for the charges and expenses incurred by such Arranger,
the Security Trustee and the Agent in connection with the negotiation,
preparation, syndication and execution of this Agreement and/or in
contemplation of, or otherwise in connection with, the enforcement of,
or the preservation of any rights under, or in carrying out its duties
under, this Agreement and/or the Security Documents including (in each
case) the fees and expenses of legal or other professional advisers.
Each Bank shall indemnify the Agent and the Security Trustee (rateably
in accordance with such Bank's Commitment, at any time before the
making of the first Advance or if no Advance is then outstanding, or
Contribution, at any other time) against all liabilities, damages,
costs and claims whatsoever incurred by the Agent or the Security
Trustee (as the case may be) in connection with this Agreement and/or
the Security Documents or any document or report referred to in this
Agreement or the performance of its duties under this Agreement and/or
the Security Documents or any action taken or omitted by the Agent or
the Security Trustee (as the case may be) under this Agreement and/or
the Security Documents, unless such liabilities, damages, costs or
claims arise from the Agent's or the Security Trustee's (as the case
may be) own gross negligence or wilful misconduct.
19.11 Retirement of Agent
(a) The Agent may retire from its appointment as Agent under this
Agreement and/or the relevant Security Documents having given to
the Borrower and each of the Banks not less than 30 days' notice
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of its intention to do so, provided that no such retirement shall
take effect unless there has been appointed by the Banks (after
consultation with the Borrower) as a successor agent:
(i) a Bank; or
(ii) any other reputable and experienced financial
institution with offices in London nominated and
accepted by the Majority Banks and to which the
Borrower has given its consent (such consent not to
be unreasonably withheld or delayed); or, failing
such nomination; or
(iii) any reputable and experienced bank or financial
institution with offices in London nominated by the
Agent and to which the Borrower has given its consent
(such consent not to be unreasonably withheld or
delayed).
(b) All of the Banks (other than the Agent, in its capacity as a
Bank) may, having given to the Agent not less than 30 days'
notice of the intention to do so, remove the Agent from its
appointment as such under the Agreement. The removal shall
automatically be of effect on the expiry of the notice save,
where the Banks (other than the Agent, in its capacity as a Bank)
shall have failed to appoint a successor agent falling within the
requirements of clause 19.11(a) (i) or (ii), in which case the
removal shall be deferred until such appointment is made. The
Banks (other than the Agent, in its capacity as a Bank) shall
immediately notify the Agent in writing of their making such
appointment.
(c) Upon any such successor as aforesaid being appointed, the
retiring Agent shall be discharged from any further obligation
under this Agreement and/or the relevant Security Documents and
its successor and each of the other parties to this Agreement
and/or the relevant Security Documents shall have the same rights
and obligations among themselves as they would have had if such
successor had been a party to this Agreement and/or the relevant
Security Documents in place of the retiring Agent.
19.12 Change of Reference Banks
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid, (b) the Commitment (if any) of any Reference Bank is reduced
to zero in accordance with clause 6.4 or 16.1, (c) a Reference Bank
assigns and/or novates the whole of its rights and obligations (if any)
as a Bank under this Agreement or (d) any Reference Bank ceases to
provide quotations to the Agent for the purposes of determining LIBOR,
the Agent may, acting on the instructions of the Majority Banks,
terminate the appointment of such Reference Bank and after consultation
with the Borrower appoint another Bank to replace such Reference Bank.
19.13 Security Documents
Each Bank acknowledges and agrees to the terms and conditions of the
Security Documents and the Security Trustee and the Banks agree that
the Banks will, subject to the terms of the Security Trust Deed, be
entitled to all the rights and subject to the liabilities and
obligations of the Banks (and, if applicable, the Bond Providers and/or
Interest Rate Beneficiaries (as defined therein)) under the Debenture
and any other Security Document entered into by the Security Trustee
for the benefit of the Banks and, if applicable, the Bond Providers
and/or Interest Rate Beneficiaries.
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20 Notices and other matters
20.1 Notices
Every notice, request, demand or other communication under this
Agreement shall:
(a) be in writing delivered personally or by first-class prepaid
letter (airmail if applicable and available), telex or telefax:
(b) be deemed to have been received, subject as otherwise provided in
this Agreement, in the case of a letter, when delivered
personally or 3 days after it has been put into the post and, in
the case of a telex or telefax, at the time of despatch with, in
the case of telex, confirmed answerback of the addressee
appearing at the beginning and end of the transmission or in the
case of a telefax, with confirmation by the sender's facsimile
machine that the message has been received at the correct
facsimile number (provided that if the date of delivery or
despatch is not a business day in the country of the addressee or
if the time of despatch of any telex or telefax is after the
close of business in the country of the addressee it shall be
deemed to have been received at the opening of business on the
next such business day); and
(c) be sent:
(i) to the Borrower at:
1500 Market Street
Philadelphia PA 19102
United States of America
Telefax: 001 215 981 7744
Attention: Ken Mikalauskas
(ii) to the Agent and the Security Trustee at:
46 Berkeley Street
London W1X 6AA
Telefax: 0171 322 6032
Attention: Michael Rugg (in the case of documents
delivered in accordance with clause
11.1(f), (g), (h) or (j) of this
Agreement.)
(iii) to each Arranger and each Bank at its address, telex
number or telefax number specified in Part B of
Schedule 1 or in any relevant Substitution
Certificate.
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or to such other address, telex number or telefax number as is
notified by the Borrower, the Agent, an Arranger, the Security
Trustee or a Bank (as the case may be) to the other parties to
this Agreement.
20.2 Notices through the Agent
Every notice, request, demand or other communication under this
Agreement to be given by any member of the Group to any other party
shall be given to the Agent for onward transmission as appropriate and
to be given to any member of the Group shall (except as otherwise
provided in this Agreement) be given by the Agent.
20.3 No implied waivers, remedies cumulative
No failure or delay on the part of the Agent, the Arrangers, the
Security Trustee, the Banks or any of them to exercise any power, right
or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise by the Agent, the Arrangers, the
Security Trustee, the Banks or any of them of any power, right or
remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy. The remedies provided in this
Agreement are cumulative and are not exclusive of any remedies provided
by law.
20.4 Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
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21 Governing law and jurisdiction
21.1 Law
This Agreement is governed by and shall be construed in accordance with
English law.
21.2 Submission to jurisdiction
The parties to this Agreement agree for the benefit of the Agent, the
Arrangers, the Security Trustee and the Banks that:
(a) if any party has any claim against any other arising out of or in
connection with this Agreement such claim shall (subject to
clause 21.2(c)) by referred to the High Court of Justice in
England, to the jurisdiction of which each of the parties
irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over any
such claim against the Agent, the Arrangers, the Security Trustee
or any Bank shall be an exclusive jurisdiction and no courts
outside England shall have jurisdiction to hear or determine any
such claim; and
(c) nothing in this clause 21.2 shall limit the right of the Agent,
the Arrangers, the Security Trustee or the Banks to refer any
such claim against the Borrower to any other court of competent
jurisdiction outside England, to the jurisdiction of which the
Borrower hereby irrevocably agrees to submit, nor shall the
taking of proceedings by the Agent, the Arrangers, the Security
Trustee or any Bank before the courts in one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
21.3 Agent for service of process
The Borrower irrevocably designates, appoints and empowers Fleetside
Legal Representative Services Limited at present of 9 Cheapside,
London, EC2V 6AD to receive for it and on its behalf service of process
issued out of the High Court of Justice of England in relation to any
claim arising out of or in connection with this Agreement.
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SCHEDULE 1
Part A - The Original Charging Subsidiaries
<TABLE>
<CAPTION>
(1) (2) (3)
Company Name Company Registered
Number Office
<S> <C> <C>
Comcast Darlington Limited 2533674 Roberts House
De Havilland Avenue
Preston Farm Business Park
Stockton-on-Tees TS18 3TH
Comcast Teesside Limited 2532188 Roberts House
De Havilland Avenue
Preston Farm Business Park
Stockton-on-Tees TS18 3TH
Cambridge Holding Company Limited 2670603 First Floor, Block D
Westbrook Centre
Milton Road
Cambridge CB4 1YG
Cambridge Cable Limited 2154841 First Floor, Block D
Westbrook Centre
Milton Road
Cambridge CB4 1YG
Anglia Cable Communications Limited 2433857 First Floor, Block D
Westbrook Centre
Milton Road
Cambridge CB4 1YG
East Coast Cable Limited 2352468 First Floor, Block D
Westbrook Centre
Milton Road
Cambridge CB4 1YG
Southern East Anglia Cable Limited 2905929 First Floor, Block D
Westbrook Centre
Milton Road
Cambridge CB4 1YG
</TABLE>
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SCHEDULE 1
Part B - The Banks and their Commitments
<TABLE>
<CAPTION>
Name Address and Facsimile No. Commitment
(UK Pound)
<S> <C> <C>
The Bank of New York 46 Berkeley Street 65,000,000
London W1X 6AA
Tel: 0171 322 6018
Fax: 0171 322 6032
Attention: Loans Administration
Department
Banque Paribas 10 Harewood Avenue, 65,000,000
London, NW1 6AA
Tel: 0171 595 2000
Fax: 0171 595 2555
Attention: Steve Primarolo,
Loans Administration, copy
to Ken Goldsbrough
Barclays Bank PLC 5 The North Colonnade, 35,000,000
Canary Wharf, London E14 4PU
Tel: 0171 773 6427/6424
Fax: 0171 773 6811
Attention: Global Services Unit
The Royal Bank of Scotland plc 5-10 Great Tower Street, 35,000,000
London, EC3P 3HX
Tel: 0171 615 5758
Fax: 0171 220 7370
Attention: Gina Thomas
(UK Pound)200,000,000
</TABLE>
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SCHEDULE 2
Part A - Form of Drawdown Notice
To: [ ]
Attention: [ ] [Date]
(UK Pound)200,000,000 Loan Facility
Loan Agreement dated [ ] 1997
(as from time to time amended, varied, extended, restated
or replaced the "Loan Agreement")
1. We refer to the above Loan Agreement and hereby give you notice that we
wish to draw [(i)] [an Advance under Tranche A of (UK Pound)[ ] on [ ]
and select a Term for such Advance of [ ] months. The funds should be
credited to [name and number of account] with [bank in London] [and
(ii)] [an Advance under Tranche B of (UK Pound)[ ] on [ ] and select a
Term for such Advance of [ ] months. The funds should be credited to
[name and number of account] with [bank in London].
2. We confirm that:
(a) no event or circumstance has occurred and is continuing which
constitutes a Default;
(b) the representations and warranties referred to in clause 9.3
including those deemed to be made by the Borrower pursuant to
such clause are (subject as provided in clause 9.3) true and
correct at the date hereof as if each was made with respect to
the facts and circumstances existing at the date hereof; and
(c) the borrowing to be effected by such Advance will be within our
powers, has been validly authorised by appropriate action and
will not cause any limit on our borrowings (whether imposed by
statute, regulation, agreement or otherwise) to be exceeded; and
*3. We confirm that Consolidated Annualised Net Operating Cash Flow in the
most recently delivered Monthly Management Accounts was [ ].
*4. We further confirm that the ratio of the Tranche B Loan (including, for
these purposes, the amount of the Advance the subject of this notice)
to Consolidated Annualised Net Operating Cash Flow as calculated from
the most recently delivered Monthly Management Accounts delivered to
the Agent under the Loan Agreement was [ ].
Words and expressions defined in the Loan Agreement shall have the same meanings
where used herein.
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For and on behalf of
Comcast UK Holdings Limited
..................................................
Authorised Officer
* In the case of Advances under Tranche B only
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SCHEDULE 2
Part B - Form of Rollover Notice
To: [ ]
Attention: [ ] [Date]
(UK Pound)200,000,000 Loan Facility
Loan Agreement dated [ ] 1997
(as from time amended, varied, extended, restated
or replaced the "Loan Agreement")
We refer to the above Loan Agreement and hereby give you notice that we wish to
draw [(i)] [an Advance of (UK Pound)[ ] on [ ] under Tranche A and select a Term
for such Advance of [ ] months. The funds should be applied in repayment [in
part] of the Advance of (UK Pound)[ ] which falls due to be repaid on the same
day in accordance with clause 4.12 of the Loan Agreement [and the balance of [ ]
credited to [name and number of account] with [bank in London]]] [and (ii)] [an
Advance of (UK Pound)[ ] on [ ] under Tranche B and select a Term for such
Advance of [ ] months. The funds should be applied in repayment [in part] of the
Advance of (UK Pound)[ ] which falls due to be repaid on the same day in
accordance with clause 4.12 of the Loan Agreement [and the balance of [ ]
credited to [name and number of account] with [bank in London]]].
Words and expressions defined in the Loan Agreement shall have the same meanings
when used herein.
For and on behalf of
Comcast UK Holdings Limited
...........................
Authorised Officer
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SCHEDULE 2
Part C - Form of Conversion Notice
To: [ ]
Attention: [ ] [Date]
(UK Pound)200,000,000 Loan Facility Loan Agreement dated [ ] 1997
(as from time amended, varied, extended, restated
or replaced the "Loan Agreement")
We refer to the Advance made to us of (UK Pound)[ ] on [ ] with a Term of [ ]
under Tranche [A]/[B]. Words and expressions defined in the Loan Agreement shall
have the same meanings when used herein.
We hereby give you notice that we wish to convert such Advance to an Advance
under Tranche [A/B] with effect from [ ] (the "Conversion Date").
We confirm that:
(i) no event or circumstance has occurred and is continuing which constitutes a
Default;
(ii) the representations and warranties referred to in clause 9.3 including
those deemed to be made by the Borrower pursuant to such clause are
(subject as provided in clause 9.3) true and correct at the date hereof as
if each was made with respect to the facts and circumstances existing at
the date hereof; and
(iii)the borrowing effected by such Advance is within our powers, has been
validly authorised by appropriate action and will not cause any limit on
our borrowings (whether imposed by statute, regulation, agreement or
otherwise) to be exceeded.
We confirm that as at the Conversion Date we will be in compliance with clause
4.2 and clause 4.3 of the Loan Agreement.
For and on behalf of
Comcast UK Holdings Limited
...................................
Authorised Officer
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SCHEDULE 3
Documents and evidence required as conditions precedent
(a) Copies, certified as true, complete and up-to-date copies by the
relevant Company Secretary or Director, of the certificate of
incorporation and Memorandum and Articles of Association of the
Borrower (incorporating any amendments thereto reasonably required by
the Agent to ensure the Borrower can comply with the terms of this
Agreement and the Security Documents) and Comcast.
(b) A copy certified as a true copy by the Company Secretary of a Director
of Resolutions of the Board of Directors of the Borrower evidencing
approval of this Agreement and any Security Document to which it is a
party and authorising its appropriate officers to execute and deliver
this Agreement and each Security Document to which it is a party and to
give all notices and take all other action required by the Borrower
under this Agreement and each Security Document to which it is a party.
(c) A copy, certified as a true copy by the Company Secretary or a
Director, of Resolutions of the Board of Directors of Comcast
evidencing approval of the Deed of Subordination to which it is a
party, the Share Mortgage and the Security Trust Deed and authorising
its appropriate officers to execute and deliver the Deed of
Subordination, the Share Mortgage and the Security Trust Deed and to
give all notices and to take all action required by it under the Deed
of Subordination, the Share Mortgage and the Security Trust Deed.
(d) Specimen signatures, authenticated by the relevant Company Secretary or
Director, of the persons authorised in the Resolutions of the Board of
Directors referred to in paragraphs (b) and (c) above.
(e) Copies, certified as true copies by the relevant duly authorised
officer from Fleetside Legal Representative Services Limited as agents
for receipt of service of process referred to in the Comcast Deed of
Subordination, the Comcast Share Mortgage and the Security Trust Deed
of acknowledgement of appointment as such.
(f) The Deed of Subordination and the Share Mortgage having been duly
executed and delivered by Comcast.
(g) The Security Documents having been duly executed and delivered by the
Borrower and the other Security Obligors.
(h) A notice in the form attached to the Debenture having been given to
each insurer of all or any of the material assets of the Borrower and
each member of the Group and the same having been agreed and accepted
by each relevant insurer.
(i) Copies, certified as true copies by the Company Secretary or a Director
of the Borrower, of each Principal Agreement together with a
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certificate from the Company Secretary or a Director of the Borrower
confirming that such documents are, to the best of his knowledge and
belief, in full force and effect.
(j) a certificate from the company secretary or a Director of the Borrower
that all the assets of the Borrower are insured in accordance with the
provisions of this Agreement and the Debenture, together with a
schedule of such insurance policies.
(k) An opinion of Norton Rose, solicitors to the Agent, dated no earlier
than the date of this Agreement.
(l) An opinion of Appleby, Spurling & Kempe, legal advisers in Bermuda to
the Agent, dated no earlier than the date of this Agreement in a form
previously approved by the Agent.
(m) A letter, addressed to the Agent, the Banks and the Borrower, from
Deloitte & Touche stating that in Deloitte & Touche`s opinion the
financial projections and underlying accounting assumptions of the
Agreed Base Case delivered to the Arrangers prior to the date of this
Agreement are reasonable.
(n) Copies of the Comcast Group's audited consolidated financial statements
for the financial year ended 31 December 1996.
(o) The unaudited Quarterly Management Accounts for the Quarterly Period
ending on 30 September 1997.
(p) A copy of the budget of the Group for the period commencing on 1
January 1998 and ending on 31 December 1998.
(q) A copy, certified as a true copy by a Director of the Borrower, of the
Agreed Base Case.
(r) Copies, certified as true, complete and up-to-date copies by the
relevant Company Secretary or Director of the certificate of
incorporation and Memorandum and Articles of Association of each
Original Charging Subsidiary incorporating any amendments thereto
reasonably required by the Agent to ensure each Original Charging
Subsidiary can comply with the terms of this Agreement and the Security
Documents.
(s) A copy certified as a true copy by the Company Secretary or a Director
of Resolutions of the Board of Directors approving the final terms of
each Original Charging Subsidiary evidencing approval of this
Agreement, and any Security Document to which it is a party and
authorising its appropriate officers to execute and deliver this
Agreement and the Security Documents to which it is a party and to give
all notices and take all other action required by each such Original
Charging Subsidiary under this Agreement and each Security Document to
which it is a party.
(t) Specimen signatures certified by the relevant Company Secretary or
Director of the persons authorised by the resolutions referred to in
paragraph (r) above.
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(u) Share certificates (together with any relevant declarations of trust
and copies, certified as true copies by the relevant Company
Secretaries or a Director of resolutions of the Boards of Directors of
the relevant legal owners authorising the execution and delivery of
such declarations of trust and duly executed stamped stock transfer
forms but with the name of the transferee left blank) in respect of the
entire issued share capital of the Subsidiaries of the Borrower.
(v) Receipt of all regulatory consents and letters (in the agreed form) and
the effecting of all registrations required in connection with this
Agreement and the Security Documents, including letters from the ITC,
OFTEL and the DTI.
(w) Confirmation from an Authorised Officer of the Borrower that a minimum
of (UK Pound)300,000,000 of equity and/or Subordinated Debt has been
injected into the Group by Restricted Persons.
(x) Confirmation from an Authorised Officer of the Borrower that no member
of the Group is in default under any existing financing arrangements.
(y) Certified copies of the loan documentation in relation to outstanding
Subordinated Debt and details of all amounts outstanding thereunder.
(z) Confirmation from the Company Secretary or a Director of the Borrower
that there are no outstanding Encumbrances or Borrowed Money other than
Permitted Encumbrances/Permitted Borrowings.
(aa) Title documents to all properties to be charged under the Debenture.
(bb) Share certificates (together with any relevant declarations of trust
and copies, certified as true copies by the relevant Company
Secretaries or a Director of resolutions of the Board of Directors of
the relevant legal owners authorising the execution and delivery of
such declarations of trust) and duly stamped stock transfer forms,
executed in the name of the Security Trustee's nominee in respect of
the shares in the Borrower which are subject to the Comcast Share
Mortgage.
(cc) A copy, certified as a true copy by the Borrower's Company Secretary or
a Director, of an extract from the Borrower's Register of Members
showing that Comcast is the registered holder of the shares that are
subject to the Comcast Share Mortgage.
(dd) Certified copies of stock transfer forms from Comcast to the Borrower
of the shares in Comcast Darlington Limited, Comcast Teesside Limited
and Cambridge Holding Company Limited.
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SCHEDULE 4
Calculation of Additional Cost
1 The Additional Cost for any period is calculated in accordance with the
following formula:
BY + L(Y - X) + S(Y - Z)
------------------------ per cent. per annum
100 - (B + S)
where on the day of application of the formula:
B is the percentage of the Agent's eligible liabilities which
the Bank of England then requires the Agent to hold on a
non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the percentage rate at which Sterling deposits are offered
by the Agent to leading banks in the London interbank market
at or about 11 a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which (as a result
of the requirements of the Bank of England) the Agent
maintains as secured money with members of the London Discount
Market Association or in certain marketable or callable
securities approved by the Bank of England;
X is the percentage rate at which secured Sterling investments
may be placed by the Agent with members of the London Discount
Market Association at or about 11 a.m. on that day for the
relevant period or, if greater, the rate at which Sterling
bills of exchange (of a tenor equal to the duration of the
relevant period) eligible for rediscounting at the Bank of
England can be discounted in the London Discount Market at or
about 11 a.m. on that day;
S is the percentage of the Agent's eligible liabilities which
the Bank of England requires the Agent to place as a special
deposit; and
Z is the interest rate expressed as a percentage per annum
allowed by the Bank of England on special deposits.
2 For the purposes of this schedule 4:
2.1 "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
2.2 "relevant period" in relation to each period for which Additional Cost
falls to be calculated means:
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(a) if it is 3 months or less, that period; or
(b) if it is more than 3 months, 3 months.
3 In the application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5 per cent. and Y
= 15 per cent. BY is calculated as 0.5 x 15.
4 The formula is applied on the first day of each relevant period. Each
amount is rounded up (if necessary) to the nearest four decimal places.
5 If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation with
the Borrower and all of the Banks) shall notify the Borrower of the manner
in which the Additional Cost will subsequently be calculated. The manner of
calculation so notified by the Agent shall, in the absence of manifest
error, be binding on all the parties.
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SCHEDULE 5
Form of Substitution Certificate
Banks are advised not to employ Substitution Certificates or otherwise to assign
or transfer interests in the Agreement without first ensuring that the
transaction complies with all applicable laws and regulations, including the
Financial Services Act 1986 and regulations made thereunder.
To: [ ]
Attention: [ ]
[Date]
Substitution Certificate
This Substitution Certificate relates to a Loan Agreement (as from time to time
amended, varied, extended, restated or replaced (the "Agreement") dated [ ] 1997
between Comcast UK Holdings Limited as Borrower (1), the Subsidiaries of the
Borrower whose respective names and registered numbers are set out in part A of
schedule 1 thereto, (2), the Arrangers (3), the banks and financial institutions
whose respective names and addresses are set out in Part B of schedule 1 thereto
as Banks (4), the Agent (5) and the Security Trustee (6). Terms defined in the
Agreement shall have the same meaning in this Substitution Certificate.
1 [Existing Bank] (the "Existing Bank") (a) confirms the accuracy of the
summary of its participation in the Agreement set out in the Schedule
hereto; and (b) requests [Substitute Bank] (the "Substitute") to accept
by way of novation the portion of such participation specified in the
schedule hereto by countersigning and delivering this Substitution
Certificate to the Agent at its address for the service of notices
specified in the Agreement.
2 The Substitute hereby requests the Agent (on behalf of itself, the
Arrangers, the Security Trustee, the Borrower, the other members of the
Group, the Banks, the Bond Providers (as defined in the Security Trust
Deed) and the Interest Rate Beneficiaries (as defined in the Security
Trust Deed)) to accept this Substitution Certificate as being delivered
to the Agent pursuant to and for the purposes of clause 18.4 of the
Agreement, so as to take effect in accordance with the respective terms
thereof on [date of transfer] (the "Effective Date") or on such later
date as may be determined in accordance with the terms thereof.
3 The Agent (on behalf of itself, the Arrangers, the Security Trustee,
the Borrower, the other members of the Group, the Banks, the
Mortgagors, the Subordinated Creditors, the Bond Providers (as defined
in the Security Trust Deed and the Interest Rate Beneficiaries (as
defined in the Security Trust Deed)) confirms the novation effected by
this Substitution Certificate pursuant to and for the purposes of
clause 18.4 of the Agreement so as to take effect in accordance with
the terms thereof.
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4 The Substitute confirms:
(a) that it has received a copy of the Agreement, the Security
Documents and all other documentation and information required
by it in connection with the transactions contemplated by this
Substitution Certificate;
(b) that it has made and will continue to make its own assessment
of the validity, enforceability and sufficiency of the
Agreement and the Security Documents and the Substitution
Certificate and has not relied and will not rely on the
Existing Bank, any Arranger, the Security Trustee, any other
Bank or the Agent or any statements made by any of them in
that respect;
(c) that it has made and will continue to make its own credit
assessment of the Borrower, each other member of the Group,
each Mortgagor and each Subordinated Creditor and has not
relied and will not rely on the Existing Bank, any Arranger,
the Security Trustee, any other Bank or any statements made by
any of them in that respect;
(d) accordingly, none of the Existing Bank, any Arranger, the
Security Trustee, any other Bank or the Agent shall have any
liability or responsibility to the Substitute in respect of
any of the foregoing matters; and
(e) it is a Qualifying Bank.
5 Execution of this Substitution Certificate by the Substitute
constitutes its representation to the Existing Bank and all other
parties to the Agreement and the Security Trust Deed that it has power
to become party to the Agreement and the Security Trust Deed as a Bank
on the terms herein and therein set out and has taken all necessary
steps to authorise execution and delivery of this Substitution
Certificate.
6 The Existing Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Agreement or the Security Documents
or any document relating thereto and assumes no responsibility for the
financial condition of the Borrower, any Mortgagor, any Subordinated
Creditor or any other party to the Agreement or the Security Documents
or for the performance and observance by the Borrower, each other
member of the Group, any Mortgagor, any Subordinated Creditor or any
other such party of any of its obligations under the Agreement or the
Security Documents or any document relating thereto and any and all
such conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
7 The Substitute hereby undertakes to the Existing Bank, the Borrower,
the other members of the Group, the Mortgagors, the Subordinated
Creditors, the Arrangers, the Security Trustee, the other Banks, the
Bond Providers, the Interest Rate Beneficiaries and the Agent that it
will perform in accordance with their terms all those obligations which
by the respective terms of the Agreement and the Security Documents
will be assumed by it after acceptance of
this Substitution Certificate by the Agent.
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8 This Substitution Certificate and the rights and obligations of the
parties hereunder are governed by and shall be construed in accordance
with English law.
Note:This Substitution Certificate is not a security, bond, note, debenture,
investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
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The Schedule
Amount of Contribution Next Interest Payment Date(s) Portion novated(UK Pound)
Tranche A Advance(s)
Tranche B Advance(s)
Amount of Commitment Portion novated (UK Pound)
Administrative Details of Substitute
Lending office:
Account for payments:
Telephone:
Telex:
Fax:
Attention:
[Existing Bank] [Substitute]
By: By:
Date: Date:
The Agent
By:
Date:
on its own behalf
and on behalf of the Borrower, the Security Obligors, the Mortgagors, the
Subordinated Creditors, the Arrangers, the Security Trustee, the Bond Providers,
the Interest Rate Beneficiaries and the Banks.
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SCHEDULE 6
Part A - Form of Compliance Certificate to be issued by an Authorised Officer
of the Borrower
[ ]
Attention: [ ]
[Date]
Dear Sirs
Comcast UK Holdings Limited
(UK Pound)200,000,000 Loan Facility, Loan Agreement dated ==, 1997
(as from time to time amended, varied, extended, restated or replaced
(the "Loan Agreement")
We refer to the Loan Agreement and deliver this Certificate in respect of the
Quarterly Period ended [ ] pursuant to clause 11.1(j)(ii) thereof. Terms defined
in the Loan Agreement shall have the same meaning when used in this Certificate.
Net Operating Cash Flow shall herein be defined as "NOCF".
We confirm that on or as of the last day of the Quarterly Period ending [ ]:
1 Consolidated NOCF for the Six Month Period ended [ ] was [ ].
2 Consolidated Annualised NOCF calculated by reference to the Six Month
Period ended [ ], was [ ].
3 The Tranche B Loan as at [ ] was [ ].
4 Total Debt Interest Charges for the Six Month Period ended [ ] was [ ].
Based on the above, we confirm that on [ ] or in respect of the Six Month Period
ended on [ ], as the case may be:
(1) Consolidated NOCF divided by Consolidated NOCF as set out in the Agreed
Base Case was [ %].
(2) The ratio of Tranche B Loan to Consolidated Annualised NOCF was [ x].
(3) The ratio of Consolidated NOCF to Total Debt Interest Charges was [ x].
Based on the above, we confirm that the Borrower was in compliance with the
undertakings set out in clause 13.1(a) to (c) as at [ ].
We also confirm that the representations and warranties referred to in clause
9.3 including those deemed to be made by the Borrower pursuant to such clause
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are (subject as provided in clause 9.3) true and correct at the date hereof as
if each was made with respect to the facts and circumstances existing at the
date hereof and that no event or circumstance has occurred and is continuing
which constitutes a Default.
For and on behalf of
Comcast UK Holdings Limited
..........................................................
Authorised Officer
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SCHEDULE 6
Part B - Form of Compliance Certificate to be issued by the auditors
of the Group
To: [ ]
[Date]
Attention: [ ]
Dear Sirs,
Comcast UK Holdings Limited
(UK Pound)200,000,000 Loan Facility, Loan Agreement dated
[ ], 1997
(as from time to time amended, varied, extended, restated or replaced
the "Agreement")
We refer to the Agreement and, in accordance with our instructions, deliver this
Report in respect of the financial year of the Borrower ended 31st December [ ]
pursuant to clause 11.1(j)(ii) thereof. Terms defined in the Agreement shall
have the same meaning when used in this Report and the attached schedule.
We refer to the attached schedule (the "Schedule"), signed for the purposes of
identification, and confirm the information set out in the Schedule, which has
been compiled by the Authorised Officers of the Borrower, is based on
information which has been properly extracted from the audited consolidated
financial statements of Comcast UK Holdings Limited and its subsidiary
undertakings (the "Group") for the year ended 31st December [ ], and from the
unaudited management accounts of the Group for the Six Month Period ended 30th
June [ ], is clerically accurate and has been calculated in accordance with the
Agreement.
Accordingly, we confirm that the Borrower was in compliance with the
undertakings set out in clauses 13.1(a) to (c) of the Agreement as at [ ].
This Report is for the information of, and can only be relied on by, the Agent
and the Banks and is not to be relied on by any other person or referred to, in
whole or in part, without our prior written consent.
Yours faithfully,
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Schedule
1 Consolidated Net Operating Cash Flow for the Six Month Period ended [ ] was
[ ].
2 Consolidated Annualised Net Operating Cash Flow calculated by reference to
the Six Month Period ended [ ], was [ ].
3 The Tranche B Loan as at [ ] was [ ].
4 Total Debt Interest Charges for the Six Month Period ended [ ] were [ ].
Based on the above, we confirm that on [ ] or in respect of the Six Month Period
ended on [ ], as the case may be:
(a) Consolidated Net Operating Cash Flow divided by Consolidated Net
Operating Cash Flow as set out in the Agreed Base Case was [ ]%.
(b) The ratio of Tranche B Loan to Consolidated Annualised Net Operating
Cash Flow was [ x].
(c) The ratio of Consolidated Net Operating Cash Flow to Total Debt
Interest Charges was [ x].
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SCHEDULE 7
Form of Deed of Subordination
DATED ==
[ ]
and
[ ]
as Security Trustee
---------------------------------------------
DEED OF SUBORDINATION
---------------------------------------------
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THIS DEED OF SUBORDINATION is dated [==] and made
BETWEEN:
(1) [ ] (Company No.==) whose registered office is at [ ] (the "Creditor"); and
(2) [ ] in its capacity as Security Trustee for the Beneficiaries (as defined
below) (in this capacity, the "Security Trustee").
WHEREAS
(A) By an agreement dated == 1997 (as from time amended, varied, extended,
restated or replaced the "Loan Agreement") and made between Comcast UK
Holdings Limited as Borrower (1), certain Subsidiaries of the Borrower
(2), the Arrangers (3), the banks and financial institutions whose
names and addresses are set out in Part B of schedule 1 thereto, (4)
the Agent (5) and the Security Trustee (6), the Banks agreed, upon and
subject to the terms and conditions of the Loan Agreement, to make
available to the Borrower a revolving credit facility of up to (UK
Pound)200,000,000.
(B) The execution of this Deed is one of the conditions precedent to the
obligation of each Bank to make its Commitment available under the Loan
Agreement.
NOW IT IS AGREED as follows:
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1 Interpretation
1.1 Definitions
In this Deed, unless the context otherwise requires:
"Beneficiaries" has the meaning ascribed thereto in the Security Trust
Deed;
"Collateral Instruments" means the Security Documents, any guarantees
and any other documents or instruments (including, without limitation,
any other document or instrument creating or evidencing a mortgage,
charge (whether fixed or floating), pledge, lien, hypothecation,
assignment, trust arrangement or security interest of any kind) which
contain or evidence an obligation (with or without security) to pay,
discharge or be responsible directly or indirectly for any of the
Secured Liabilities under or pursuant to the Loan Agreement;
"Incapacity" means in relation to a person the death, bankruptcy,
insolvency, liquidation, dissolution, winding-up, administration,
receivership, amalgamation, reconstruction or other incapacity of that
person whatsoever (and, in the case of a partnership, includes the
termination or change in the composition of such partnership);
"Insolvency Event" means, in relation to the Borrower or any of its
Subsidiaries any of the events or circumstances described in clause
14.1(h) to (n) inclusive of the Loan Agreement;
"Insolvency Proceedings" means winding-up, dissolution, liquidation,
receivership, administration, voluntary arrangements, proceedings under
Title 11 of the United States Bankruptcy Code or any proceedings in any
jurisdiction which correspond with or have an effect equivalent to any
of the same;
"Liabilities" means all obligations and liabilities whatsoever, whether
express or implied, whether as principal or surety, whether present or
future, actual or contingent, whether joint or several, in whatever
style, name or form and in whatever currency denominated;
"Permitted Amounts" means all amounts which the Borrower or any of its
Subsidiaries are permitted to pay pursuant to clause 10.1 of the Loan
Agreement;
"Secured Liabilities" means all obligations, present, future or
contingent, joint or several, of any member of the Group pursuant to
the Loan Agreement and/or any Security Document; and
"Security Provider" means any person who has or may at any time
hereafter enter into a Collateral Instrument.
1.2 Defined Expressions
Unless the context requires or unless otherwise defined in this Deed,
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words and expressions defined in the Loan Agreement shall have the same
meaning when used in this Deed (including its Recitals).
1.3 Headings
Clause headings are inserted for convenience of reference only and
shall be ignored in the interpretation of this Deed.
1.4 Construction of certain terms
In this Deed, unless the context otherwise requires:
(a) references to clauses are to be construed as references to the
clauses of this Deed;
(b) reference to (or to any specified provision of) this Deed or any
other document shall be construed as references to this Deed,
that provision or that document as in force for the time being
and as amended in accordance with the terms thereof or, as the
case may be, with the agreement of the relevant parties and
(where such consent is, by the terms of this Deed or the relevant
document, required to be obtained as a condition to such
amendment being permitted) the prior written consent of the
Agent, the Security Trustee, all of the Banks, the Majority Banks
or the Beneficiaries (as the case may be);
(c) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any agency,
authority, central bank or government department or any
self-regulatory or other national or supra-national authority;
(d) words importing the plural shall include the singular and vice
versa;
(e) references to a time of day are to London time;
(f) references to a person shall be construed as including references
to an individual, firm, company, corporation, unincorporated body
of persons or any State or any agency thereof;
(g) references to a "guarantee" include references to an indemnity or
other assurance against financial loss including, without
limitation, an obligation to purchase assets as a consequence of
default by any other person to pay any Indebtedness and
"guaranteed" shall be construed accordingly; and
(h) references to any enactment shall be deemed to include references
to such enactment as replaced, amended or re-enacted from time to
time.
1.5 Effect as a deed
This Deed is intended to take effect as a deed notwithstanding that the
Security Trustee and/or the Creditor may have executed it under hand
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only.
1.6 Successors and assigns
The expressions "Beneficiary", "Security Trustee", "Borrower", "Agent",
"Arranger", "Bank", "Security Provider" and "Creditor" include, where
the context admits, their respective successors, permitted assigns, in
the case of the Banks, their Assignees and Substitutes, in the case of
the Security Trustee such other person as may from time to time be
appointed as Security Trustee for the Beneficiaries pursuant to the
terms of the Security Trust Deed and, in the case of the Agent, such
other person as may from time to time be appointed as Agent pursuant to
clause 19.11 of the Loan Agreement.
2 Restricted Payments
The Creditor undertakes with the Security Trustee that so long as any
of the Secured Liabilities remain outstanding:
(a) it will not, and will procure that none of its Subsidiaries
(which are not Security Obligors) demand, take, accept or
receive, by set-off or in any other manner, any Restricted
Payment other than a Permitted Amount;
(b) it will not, and will procure that none of its Subsidiaries
(which are not Security Obligors) take, accept, receive or
permit to exist any Encumbrance over all or any part of the
present or future undertakings, assets, rights or revenues of
any Security Obligors to secure any Restricted Payment;
(c) it will not, and will procure that none of its Subsidiaries
(which are not Security Obligors) assign, transfer, create any
Encumbrance over or otherwise dispose of any Restricted
Payment other than a Permitted Amount;
(d) it will not, and will procure that none of its Subsidiaries
(which are not Security Obligors) commence any proceedings
against any Security Obligor in respect of any Restricted
Payment, (including, without limitation, any action or step
with a view to winding-up any Security Obligor); and
(e) it will not make any Borrowed Money available to any member of
the Group except to the Borrower on terms which acknowledge
the terms of this Deed.
3 Subordination
3.1 Insolvency Events
Upon an Insolvency Event occurring in respect of any Security Obligor:
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(a) the claims of the Creditor in respect of any Restricted
Payment owed by that Security Obligor other than any Permitted
Amounts shall be postponed in all respects to the Secured
Liabilities;
(b) the Creditor shall not, unless otherwise directed by the
Security Trustee, prove in any Insolvency Proceedings for any
Restricted Payment, other than the Permitted Amounts until the
Secured Liabilities have first been irrevocably paid or
discharged in full (and for all purposes any payment or
distribution of assets (whether in cash, property, securities
or otherwise) received by the Security Trustee or any of the
Beneficiaries shall only be taken to discharge the Secured
Liabilities to the extent of the actual amount received);
(c) if the Creditor is directed by the Security Trustee to prove
in any Insolvency Proceedings for all or any part of any
Restricted Payment, other than any Permitted Amounts then it
shall act in accordance with such directions and shall procure
that any resultant payment or distribution of assets (whether
in cash, property, securities or otherwise) shall be made by
the liquidator of any Security Obligor or, as the case may be,
any other person making the payment or distribution of assets
(whether in cash, property, securities or otherwise) to the
Security Trustee to the extent necessary to repay all the
Secured Liabilities in full; and
(d) the Creditor hereby irrevocably authorises and directs the
Security Trustee to submit any proof and/or to instruct the
relevant liquidator or other person to make any payment or
distribution of assets (whether in cash, property, securities
or otherwise) in accordance with the foregoing.
3.2 Payments contrary to this Deed
In the event of:
(a) any payment or distribution of assets (whether in cash,
property, securities or otherwise) being made to or right of
set-off being exercised by the Creditor contrary to the
provisions of this Deed; or
(b) any payment or distribution of assets (whether in cash,
property, securities or otherwise) being made by a liquidator
or any other person to the Creditor rather than to the
Security Trustee as required by clause 3.1,
the Creditor shall forthwith pay to the Security Trustee an amount
equal to the payment or distribution of assets (whether in cash,
property, securities or otherwise) which shall have been so received by
it up to an aggregate amount equal to the Secured Liabilities or, as
the case may be, in the case of set-off, an amount equal to the sum
set-off up to an aggregate amount equal to the Secured Liabilities and,
until such payment to the Security Trustee, the Creditor will hold such
sums on trust for the Security Trustee (provided that, for the
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avoidance of doubt, this clause 3.2 shall not oblige the Creditor to
create any Encumbrance in favour of the Security Trustee over such
money or other property) and any sums so paid to the Security Trustee
shall be applied in accordance with the terms of the Security Trust
Deed.
3.3 Subrogation
If the Secured Liabilities are partially paid out of any proceeds
received in respect of or on account of any Restricted Payment, the
Creditor will not be subrogated to the Secured Liabilities so paid (or
any Collateral Instrument) until the Secured Liabilities have been
irrevocably paid in full.
4 Continuing Obligations
4.1 Continuing obligations
The obligations of the Creditor hereunder shall be continuing
obligations and shall be and remain fully effective until this Deed is
formally released following the discharge in full of the Secured
Liabilities notwithstanding any intermediate reduction or settlement of
the Secured Liabilities or any part thereof and notwithstanding any
increase in or variation of the Secured Liabilities or any variation,
extension or supplement to the Loan Agreement or any Security
Documents.
4.2 Statements of accounts
Any statement of account of any Security Obligor, signed as correct by
an officer of the Security Trustee, showing the amount of the Secured
Liabilities shall be prima facie evidence of the amount of the Secured
Liabilities.
4.3 Continuing security and other matters
This Deed shall:
(a) secure the ultimate balance from time to time of the Secured
Liabilities and shall be a continuing security,
notwithstanding any settlement of account or other matter
whatsoever;
(b) be in addition to any present or future Collateral Instrument,
right or remedy held by or available to the Security Trustee,
the Beneficiaries or any of them; and
(c) not be in any way prejudiced by the existence of any such
Collateral Instrument, rights or remedies or by the same
becoming wholly or in part void, voidable or unenforceable on
any ground whatsoever or by the Security Trustee, the
Beneficiaries or any of them dealing with, exchanging, varying
or failing to perfect or enforce any of the same or giving
time for payment or indulgence or compounding with the
Borrower or any Security Provider.
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4.4 Liability unconditional
The liability of the Creditor shall not be affected, discharged or
reduced by reason of:
(a) the Incapacity or any change in the name, style or constitution
of the Borrower or any other Security Provider;
(b) the Security Trustee, the Beneficiaries or any of them granting
any time, indulgence or concession to, or compounding with,
discharging, releasing or varying the liability of, the Borrower
or any other Security Provider or renewing, determining, varying
or increasing any accommodation, facility or transaction or
otherwise dealing with the same in any manner whatsoever or
concurring in, accepting or varying any compromise, arrangement
or settlement or omitting to claim or enforce payment from the
Borrower or any other Security Provider; or
(c) any act or omission which but for this provision might operate to
exonerate the Creditor.
4.5 Collateral Instruments
None of the Beneficiaries or the Security Trustee shall be obliged to
make any claim or demand on the Borrower or any other Security Provider
or to resort to any Collateral Instrument or other means of payment now
or hereafter held by or available to them or it before enforcing this
Deed and no action taken or omitted by the Security Trustee or any
Beneficiary in connection with any such Collateral Instrument or other
means of payment shall discharge, reduce, prejudice or affect the
liability of the Creditor under this Deed nor shall the Security
Trustee or any Beneficiary be obliged to account for any money or other
property received or recovered in consequence of any enforcement or
realisation of any such Collateral Instrument or other means of
payment.
4.6 Suspense accounts
Any money received in connection with this Deed (whether before or
after any Incapacity of the Borrower, any other Security Provider or
the Creditor) may be placed to the credit of an interest bearing
suspense account with a view to preserving the rights of the Security
Trustee and each Beneficiary to prove for the whole of their respective
claims against the Borrower or any other person liable or may be
applied in or towards satisfaction of such of the Secured Liabilities
as the Security Trustee may from time to time determine in accordance
with the terms of the Security Trust Deed (which determination shall,
save in the case of manifest error, be conclusive). Interest shall
accrue on monies from time to time standing to the credit of any
suspense account at the rate agreed between the Security Trustee and
the Creditor at the relevant time or, failing such agreement, the
Security Trustee's overnight deposit rate from time to time and shall
be credited to such suspense account or may be applied in or towards
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satisfaction of such of the Secured Liabilities as the Security Trustee
may from time to time determine in accordance with the terms of the
Security Trust Deed (which determination shall, save in the case of
manifest error, be conclusive).
4.7 Settlements conditional
Any release, discharge or settlement between the Creditor and the
Security Trustee or any of the Beneficiaries shall be conditional upon
no security, disposition or payment to the Security Trustee, or any of
the Beneficiaries by the Borrower or any other person liable being
void, set aside or ordered to be refunded pursuant to any enactment or
law relating to bankruptcy, liquidation, administration or insolvency
or for any other reason whatsoever and if such condition shall not be
fulfilled the Security Trustee shall be entitled to enforce this Deed
subsequently as if such release, discharge or settlement had not
occurred and any such payment had not been made.
4.8 Retention of this Deed
Notwithstanding any other provision of this Deed, this Deed shall not
be released, the Security Trustee shall be entitled to retain this Deed
and all the provisions of this Deed shall remain in full force and
effect until the irrevocable payment or discharge in full of all the
Secured Liabilities. Following the irrevocable payment or discharge in
full of all the Secured Liabilities, the Security Trustee shall
forthwith release this Deed (and to effect or evidence such release
shall execute such documents (at the cost of the Creditor) as the
Creditor may reasonably require) and deliver this Deed, together with
such documents, to the Creditor.
5 Representations and warranties
Representation and warranties
The Creditor represents and warrants to the Security Trustee that:
(a) Due Incorporation
it is duly incorporated, validly existing as a limited
liability company under the laws of [ ] and has all requisite
corporate power and authority to own its property and other
assets and to carry on its business as it is now being
conducted and is authorised to do business in each
jurisdiction where such qualification or authorisation is
required, except where the failure to so qualify, to be so
authorised or to be in good standing would not have a material
adverse effect on the ability of the Creditor to perform any
of its obligations under this Deed;
(b) Power of the Creditor
the Creditor has all requisite power to execute, deliver and
perform its obligations under this Deed and compliance has
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been made with all necessary requirements and all necessary
action has been taken to authorise the execution, delivery and
performance of the same;
(c) Binding obligations
this Deed constitutes valid and legally binding obligations of
the Creditor enforceable in accordance with its terms subject
to the qualifications contained in the legal opinions referred
to in schedule 3 to the Loan Agreement which relate to this
Deed and for this purpose any statement contained in the
qualifications to any such legal opinion which relate to this
Deed that no opinion is given or expressed in relation to any
particular matter shall be deemed to be a qualification of
such opinion as regards such matter;
(d) No conflict with other obligations
the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, this
Deed by the Creditor, will not (i) contravene any existing
applicable law, statute, rule or regulation or any judgment,
decree or permit to which the Creditor is subject except where
such contravention would not or would not be likely to have a
material adverse effect on the ability of the Creditor to
perform any of its obligations under or otherwise to comply
with the terms of this Deed, (ii) contravene or conflict with
any provision of the [Memorandum and Articles of
Association]/[by-laws] of the Creditor, (iii) breach any term
of the Licences or the Necessary Authorisations, (iv) conflict
with, or result in any breach of any of the terms of, or
constitute a default under, any agreement to which the
Creditor is a party or is subject or by which it or any of its
property is bound except where such breach or default would
not or would not be likely to have a material adverse effect
on the ability of the Creditor to perform any of its
obligations under or otherwise to comply with the terms of
this Deed or (v) result in the creation or imposition of or
oblige the Creditor to create any Encumbrance (other than
those created by the Security Documents) on any of the
Creditor's material undertakings, assets, rights or revenues;
(e) No litigation
no litigation, arbitration or administrative proceeding is
taking place, pending or, to the knowledge of the officers of
the Creditor threatened against the Creditor which would or is
reasonably likely to have a material adverse effect on the
ability of the Creditor to fulfil its obligations under this
Deed;
(f) No filing required
it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Deed that
this Deed or any other instrument be notarised, filed,
recorded, registered or enrolled in any court or public office
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<PAGE>
in [Bermuda or] the United Kingdom or that any stamp,
registration or similar tax or charge be paid in [Bermuda or]
the United Kingdom on or in relation to this Deed;
(g) Choice of law
the choice by the Creditor of English law to govern this Deed
[and the submission by the Creditor to the jurisdiction of the
English courts] is valid and binding;
(h) Consents obtained
every consent, authorisation, licence or approval of, or
registration with or declaration to, governmental or public
bodies or authorities or courts required by the Creditor (i)
to authorise the execution and delivery of this Deed or the
performance by the Creditor of its obligations under this Deed
or (ii) to ensure the validity, enforceability or
admissibility in evidence of this Deed or the performance by
the Creditor of its obligations under this Deed has been
obtained or made and is in full force and effect and there has
been no material default in the observance of the conditions
or restrictions (if any) imposed in, or in connection with,
any of the same which would, in any such case, adversely
affect the execution, delivery, validity, enforceability or
admissibility in evidence of this Deed or the performance by
the Creditor of its obligations under this Deed.
5.2 Repetition
The representations and warranties in clause 5.1 shall be deemed to be
repeated by the Creditor in respect of itself and its Subsidiaries on
and as of each Interest Payment Date and the date on which each Advance
is made under the Loan Agreement.
6 Benefit of this Deed
6.1 Benefit and burden
This Deed shall be binding upon the Creditor and its successors in
title and shall enure for the benefit of the Security Trustee (and any
successor Security Trustee appointed pursuant to the provisions of the
Security Trust Deed) and their respective successors for the benefit of
the Beneficiaries in accordance with the provisions of the Security
Trust Deed.
6.2 Changes in constitution or reorganisation of Banks
For the avoidance of doubt and without prejudice to the provisions of
clause 6.1, this Deed shall remain binding on the Creditor
notwithstanding any change in the constitution of the Security Trustee
or any of the Beneficiaries or their or its absorption in, or
119
<PAGE>
amalgamation with, or the acquisition of all or part of their or its
undertaking or assets by, any other person, or any reconstruction or
reorganisation of any kind, to the intent that this Deed shall remain
valid and effective in all respects in favour of the Security Trustee
(and any successor Security Trustee appointed pursuant to the
provisions of the Security Trust Deed and their respective successors
in title) as trustee for the Beneficiaries and any assignee, transferee
or other successor in title of a Beneficiary.
6.3 No assignment by the Creditor
The Creditor may not assign or transfer any of its rights or
obligations under this Deed.
6.4 The Security Trust Deed
The Creditor and the Security Trustee hereby acknowledge that the
covenants of the Creditor contained in this Deed and the rights
constituted by this Deed and all moneys, property and assets paid to,
or held, received or recovered by the Security Trustee pursuant to or
in connection with this Deed are held by the Security Trustee subject
to and on the terms of the trusts declared in the Security Trust Deed.
7 Notices and Other Matters
7.1 Notices
Every notice, request, demand or other communication under this Deed
shall be given in accordance with clause 20.1(a) and (b) of the Loan
Agreement and shall be sent to the Creditor at its address set out
above (facsimile number:[==]) or to the Security Trustee at its address
or telex or facsimile number set out in clause 20.1(c)(ii) of the Loan
Agreement or to such other address or such telex or facsimile number as
is notified by one party to this Deed to the other.
7.2 No implied waivers, remedies cumulative
No failure or delay on the part of the Security Trustee or the
Beneficiaries (or any of them) to exercise any power, right or remedy
under this Deed shall operate as a waiver thereof, nor shall any single
or partial exercise by the Security Trustee or the Beneficiaries (or
any of them) of any power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy. The remedies provided in this Deed are cumulative and are not
exclusive of any remedies provided by law.
7.3 Other Collateral Instruments
The Creditor agrees to be bound by this Deed notwithstanding that any
other person intended to execute or to be bound by any Collateral
Instrument may not do so or may not be effectively bound and
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<PAGE>
notwithstanding that such other Collateral Instrument may be determined
or be or become invalid or unenforceable against any other person,
whether or not the deficiency is known to the Security Trustee or any
of the Beneficiaries.
7.4 Severability
Each of the provisions of this Deed is severable and distinct from one
another and if at any time one or more of such provisions is or becomes
illegal, invalid or unenforceable under any applicable law the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
7.5 Counterparts
This Deed may be executed in any number of counterparts and by the
different parties hereto in separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts together shall constitute one and the same instrument.
8 Law and Jurisdiction
8.1 Governing Law
This Deed is governed by and shall be construed in accordance with
English law.
Hidden number
[8.2 Submission to jurisdiction
The Creditor agrees that any legal action or proceedings in connection
with this Deed against the Creditor or any of its assets may be brought
in the English courts and the courts of any other jurisdiction in which
the Creditor is formed. The Creditor irrevocably and unconditionally
submits to the jurisdiction of such courts and irrevocably designates
appoints and empowers [==] to receive for it and on its behalf, service
of process issued out of the English courts in any legal action or
proceedings arising out of or in connection with this Deed. The
submission to such jurisdiction shall not (and shall not be construed
so as to) limit the right of the Agent or the Banks to take proceedings
against the Creditor to enforce any judgment obtained in any court
referred to in this clause 8.2 in any jurisdiction in which any of the
assets of the Creditor are situated, nor shall the taking of
proceedings in any one or more jurisdictions referred to in this clause
8.2 preclude the taking of proceedings in any other such jurisdiction,
whether concurrently or not.]
Hidden number
[8.3 Inconvenient Forum
The Creditor irrevocably waives any objection it may have now or
hereafter to the laying of venue of any action or proceeding in any
court or jurisdiction referred to in clause 8.2 and any claim it may
have now or hereafter that any action or proceeding brought in such
courts or jurisdiction has been brought in an inconvenient forum.]
121
<PAGE>
IN WITNESS whereof the parties to this Deed have caused this Deed to be duly
executed on the date first above written.
EXECUTED and DELIVERED as a DEED by
[ ]
By:
.............................
Director
..............................
Director/Secretary
[signature block for execution as a Deed by Creditor]
Signed for and on behalf of )
[ ] )
by: )
122
<PAGE>
SCHEDULE 8
Licences
Telecommunications Act 1984 Licence:
<TABLE>
<CAPTION>
Licence Holder Licence Area Date of Grant
<S> <C> <C>
East Coast Cable Limited Ipswich and Colchester 7.6.90 (modified by OFTEL on
5.1.95)
Cambridge Cable Limited Cambridge 13.7.90 (modified by OFTEL on
5.1.95)
Anglia Cable Communications Limited (formerly Harlow and Bishops Stortford 29.11.90 (modified by OFTEL
known as Stort Valley Cable Limited) on 5.1.95)
Comcast Teesside Limited (formerly known as Teesside 21.2.91 (modified by OFTEL on
Britannia Cable Systems Teesside Limited) 11.4.95)
Comcast Darlington Limited (formerly known as Darlington 18.3.91 (modified by OFTEL on
Britannia Cable Systems Darlington Limited) 11.4.95)
</TABLE>
Broadcasting Act 1990 - Local Delivery Licence
<TABLE>
<CAPTION>
Licence Holder Licence No. Licence Area Date of Grant
<S> <C> <C> <C>
Southern East Anglia Cable Limited LDS 012 Sudbury 19.1.97
</TABLE>
Broadcasting Act 1990 - Prescribed Diffusion Service Licence
<TABLE>
<CAPTION>
Licence Holder Licence No. Licence Area Date of Grant
<S> <C> <C> <C>
Comcast Darlington Limited (formerly known as PDSL 040 Darlington 3.12.90
Britannia Cable Systems Darlington Limited)
Comcast Teesside Limited (formerly known as PDSL 068 Teesside 3.12.90
Britannia Cable Systems Teesside Limited)
Cambridge Cable Limited PDSL 031 Cambridge 8.10.90
Anglia Cable Communications Limited (formerly PDSL 052 Harlow and Bishops 3.12.90
known as Stort Valley Cable Limited) Stortford
East Coast Cable Limited PDSL 110 Ipswich and Colchester 3.12.90
</TABLE>
123
<PAGE>
SCHEDULE 9
Barclays Encumbrances
First Legal Charge dated 26th September 1990 by Cambridge Cable Limited in
favour of Barclays Bank PLC over land and buildings at 72a Ainsworth Street,
Cambridge (title number CB 27930)
First Legal Charge dated 8th October 1993 by Anglia Cable Communications Limited
in favour of Barclays Bank PLC over land at 17-19 (inclusive) Raynham Road,
Bishops Stortford, Hertfordshire (title number HD263066)
124
<PAGE>
The Borrower
SIGNED for and on behalf of )
COMCAST UK HOLDINGS LIMITED )
by: )
The Original Charging Subsidiaries
SIGNED by )
as the duly authorised attorney of )
COMCAST DARLINGTON LIMITED )
pursuant to a power of attorney )
dated 19th December 1997 )
in the presence of: )
)
Witness: )
)
Name (printed): )
SIGNED by )
as the duly authorised attorney of )
COMCAST TEESSIDE LIMITED )
pursuant to a power of attorney )
dated 19th December 1997 )
in the presence of: )
)
Witness: )
)
Name (printed): )
SIGNED by )
as the duly authorised attorney of )
CAMBRIDGE HOLDING COMPANY LIMITED)
pursuant to a power of attorney )
dated 19th December 1997 )
in the presence of: )
)
Witness: )
)
Name (printed): )
125
<PAGE>
SIGNED by )
as the duly authorised attorney of )
CAMBRIDGE CABLE LIMITED )
pursuant to a power of attorney )
dated 19th December 1997 )
in the presence of: )
)
Witness: )
)
Name (printed): )
SIGNED by )
as the duly authorised attorney of )
ANGLIA CABLE COMMUNICATIONS )
LIMITED pursuant to a power of attorney )
dated 19th December 1997 )
in the presence of: )
)
Witness: )
)
Name (printed): )
SIGNED by )
as the duly authorised attorney of )
EAST COAST CABLE LIMITED )
pursuant to a power of attorney )
dated 19th December 1997 )
in the presence of: )
)
Witness: )
)
Name (printed): )
126
<PAGE>
SIGNED by )
as the duly authorised attorney of )
SOUTHERN EAST ANGLIA CABLE LIMITED)
pursuant to a power of attorney )
dated 19th December 1997 )
in the presence of: )
)
Witness: )
)
Name (printed): )
The Lead Arrangers
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
by: )
SIGNED for and on behalf of )
BANQUE PARIBAS )
by: )
The Co- Arrangers
SIGNED for and on behalf of )
BARCLAYS CAPITAL )
by: )
SIGNED for and on behalf of )
THE ROYAL BANK OF SCOTLAND )
PLC by: )
127
<PAGE>
The Banks
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
by: )
SIGNED for and on behalf of )
BANQUE PARIBAS )
by: )
SIGNED for and on behalf of )
BARCLAYS BANK PLC )
by: )
SIGNED for and on behalf of )
THE ROYAL BANK OF SCOTLAND )
PLC by: )
The Agent
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
by: )
The Security Trustee
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
by: )
128
EXHIBIT 21.1
LIST OF SUBSIDIARIES OF THE COMPANY
Birmingham Cable Corporation Limited
Cable London PLC
Cambridge Holding Company Limited
Comcast Teesside Limited
Comcast Darlington Limited
Comcast U.K. Consulting, Inc.
Comcast U.K. Programming Limited
Comcast UK Holdings Limited
INDEPENDENT AUDITORS' CONSENT AND REPORT ON SCHEDULES
We consent to the incorporation by reference in Registration Statement No.
333-02718 of Comcast UK Cable Partners Limited and subsidiaries (the "Company")
on Form S-8 of our reports on Comcast UK Cable Partners Limited and subsidiaries
dated February 27, 1998, appearing in this Annual Report on Form 10-K of
Comcast UK Cable Partners Limited and subsidiaries for the year ended December
31, 1997, and on Cambridge Holding Company Limited and subsidiaries dated
February 29, 1996, incorporated by reference in this Annual Report on Form 10-K
of Comcast UK Cable Partners Limited and subsidiaries for the year ended
December 31, 1997.
Our audits of the financial statements referred to in our aforementioned report
also included the financial statement schedules of the Company, listed in Item
14(b)(i). These financial statement schedules are the responsibility of the
Company's management. Our responsibility is to express an opinion based on our
audits. In our opinion, such financial statement schedules, when considered in
relation to the basic financial statements taken as a whole, present fairly in
all material respects the information set forth therein.
/s/ Deloitte & Touche LLP
Philadelphia, Pennsylvania
March 23, 1998
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement No.
333-02718 of Comcast UK Cable Partners Limited and subsidiaries on Form S-8 of
our report on Birmingham Cable Corporation Limited and subsidiaries dated
February 27, 1998 (March 16, 1998 as to Note 3), appearing in this Annual Report
on Form 10-K of Comcast UK Cable Partners Limited and subsidiaries for the year
ended December 31, 1997.
/s/ Deloitte & Touche
Birmingham, England
March 23, 1998
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement No.
333-02718 of Comcast UK Cable Partners Limited and subsidiaries on Form S-8 of
our report on Cable London PLC and subsidiaries dated February 27, 1998,
appearing in this Annual Report on Form 10-K of Comcast UK Cable Partners
Limited and subsidiaries for the year ended December 31, 1997.
/s/ Deloitte & Touche
London, England
March 23, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated statement of operations and consolidated balance sheet and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<CIK> 0000919957
<NAME> COMCAST UK CABLE PARTNERS LTD
<MULTIPLIER> 1,000
<CURRENCY> U. K. POUNDS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<EXCHANGE-RATE> 1.6508
<CASH> 37,372
<SECURITIES> 0
<RECEIVABLES> 6,853
<ALLOWANCES> (2,598)
<INVENTORY> 0
<CURRENT-ASSETS> 47,046
<PP&E> 315,702
<DEPRECIATION> (33,000)
<TOTAL-ASSETS> 445,854
<CURRENT-LIABILITIES> 26,208
<BONDS> 234,010
0
0
<COMMON> 501
<OTHER-SE> 171,175
<TOTAL-LIABILITY-AND-EQUITY> 445,854
<SALES> 55,603
<TOTAL-REVENUES> 56,662
<CGS> 0
<TOTAL-COSTS> (79,266)
<OTHER-EXPENSES> (26,768)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (25,243)
<INCOME-PRETAX> (67,356)
<INCOME-TAX> 0
<INCOME-CONTINUING> (67,356)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (67,356)
<EPS-PRIMARY> (1.34)
<EPS-DILUTED> (1.34)
</TABLE>
