Exhibit 10.30


 


EXECUTION
VERSION


 


      
March  2006


£3,775,000,000
SENIOR FACILITIES AGREEMENT


 


between


 


TELEWEST
GLOBAL, INC.

(to be renamed NTL INCORPORATED)

as Ultimate Parent


 


NTL CABLE
PLC

as Parent


 


NTL
INVESTMENT HOLDINGS LIMITED

TELEWEST COMMUNICATIONS NETWORKS LIMITED

NTLIH SUB LIMITED

as UK Borrowers


 


NTL DOVER
LLC

as US Borrower


 


THE
ORIGINAL GUARANTORS


 


DEUTSCHE
BANK AG, LONDON BRANCH

J.P. MORGAN PLC

THE ROYAL BANK OF SCOTLAND PLC

GOLDMAN SACHS INTERNATIONAL

as Bookrunners and Mandated Lead Arrangers


 


DEUTSCHE
BANK AG, LONDON BRANCH

as Facility Agent and Security Trustee


 


DEUTSCHE
BANK AG, NEW YORK BRANCH

as US Paying Agent


 


GE
CORPORATE BANKING EUROPE SAS

as Administrative Agent


 


THE
LENDERS


 


THE
B FACILITY LENDERS


 


and


 


DEUTSCHE
BANK AG, LONDON BRANCH

as Original L/C Bank


 





5 Old Broad Street

London  EC2N 1DW


 

















 


TABLE
OF CONTENTS


 


	
  1.

  	
  DEFINITIONS
  AND INTERPRETATION

  	
  4

  
	
   

  	
   

  	
   

  
	
  2.

  	
  THE
  FACILITIES

  	
  55

  
	
   

  	
   

  	
   

  
	
  3.

  	
  CONDITIONS

  	
  57

  
	
   

  	
   

  	
   

  
	
  4.

  	
  UTILISATION

  	
  59

  
	
   

  	
   

  	
   

  
	
  5.

  	
  DOCUMENTARY
  CREDITS

  	
  61

  
	
   

  	
   

  	
   

  
	
  6.

  	
  ANCILLARY
  FACILITIES

  	
  65

  
	
   

  	
   

  	
   

  
	
  7.

  	
  OPTIONAL
  CURRENCIES

  	
  68

  
	
   

  	
   

  	
   

  
	
  8.

  	
  REPAYMENT OF
  REVOLVING FACILITY OUTSTANDINGS

  	
  68

  
	
   

  	
   

  	
   

  
	
  9.

  	
  REPAYMENT OF
  TERM FACILITY OUTSTANDINGS

  	
  69

  
	
   

  	
   

  	
   

  
	
  10.

  	
  CANCELLATION

  	
  70

  
	
   

  	
   

  	
   

  
	
  11.

  	
  VOLUNTARY
  PREPAYMENT

  	
  70

  
	
   

  	
   

  	
   

  
	
  12.

  	
  MANDATORY
  PREPAYMENT AND CANCELLATION

  	
  73

  
	
   

  	
   

  	
   

  
	
  13.

  	
  INTEREST ON
  REVOLVING FACILITY ADVANCES

  	
  79

  
	
   

  	
   

  	
   

  
	
  14. 

  	
  INTEREST ON
  TERM FACILITY ADVANCES

  	
  80

  
	
   

  	
   

  	
   

  
	
  15.

  	
  MARKET
  DISRUPTION AND ALTERNATIVE INTEREST RATES

  	
  83

  
	
   

  	
   

  	
   

  
	
  16.

  	
  COMMISSIONS
  AND FEES

  	
  84

  
	
   

  	
   

  	
   

  
	
  17.

  	
  TAXES

  	
  85

  
	
   

  	
   

  	
   

  
	
  18.

  	
  INCREASED
  COSTS

  	
  92

  
	
   

  	
   

  	
   

  
	
  19.

  	
  ILLEGALITY

  	
  93

  
	
   

  	
   

  	
   

  
	
  20.

  	
  MITIGATION

  	
  93

  
	
   

  	
   

  	
   

  
	
  21.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  94

  
	
   

  	
   

  	
   

  
	
  22.

  	
  FINANCIAL
  INFORMATION

  	
  103

  
	
   

  	
   

  	
   

  
	
  23.

  	
  FINANCIAL
  CONDITION

  	
  109

  
	
   

  	
   

  	
   

  
	
  24.

  	
  POSITIVE
  UNDERTAKINGS

  	
  118

  
	
   

  	
   

  	
   

  
	
  25.

  	
  NEGATIVE
  UNDERTAKINGS

  	
  129

  
	
   

  	
   

  	
   

  
	
  26.

  	
  ACCEDING
  GROUP COMPANIES

  	
  151

  
	
   

  	
   

  	
   

  
	
  27.

  	
  EVENTS OF
  DEFAULT

  	
  152

  
	
   

  	
   

  	
   

  
	
  28.

  	
  DEFAULT
  INTEREST

  	
  158

  
	
   

  	
   

  	
   

  
	
  29.

  	
  GUARANTEE
  AND INDEMNITY

  	
  159

  
	
   

  	
   

  	
   

  
	
  30.

  	
  AGENTS

  	
  162

  
	
   

  	
   

  	
   

  
	
  31.

  	
  BORROWERS’
  INDEMNITIES

  	
  168

  
	
   

  	
   

  	
   

  
	
  32.

  	
  CURRENCY OF
  ACCOUNT

  	
  169

  
	
   

  	
   

  	
   

  
	
  33.

  	
  PAYMENTS

  	
  169

  
	
   

  	
   

  	
   

  
	
  34.

  	
  SET-OFF

  	
  171

  



 


i

















 


	
  35.

  	
  SHARING
  AMONG THE FINANCE PARTIES

  	
  171

  
	
   

  	
   

  	
   

  
	
  36.

  	
  CALCULATIONS
  AND ACCOUNTS

  	
  173

  
	
   

  	
   

  	
   

  
	
  37.

  	
  ASSIGNMENTS
  AND TRANSFERS

  	
  174

  
	
   

  	
   

  	
   

  
	
  38.

  	
  COSTS AND
  EXPENSES

  	
  178

  
	
   

  	
   

  	
   

  
	
  39.

  	
  REMEDIES AND
  WAIVERS

  	
  180

  
	
   

  	
   

  	
   

  
	
  40.

  	
  NOTICES AND
  DELIVERY OF INFORMATION

  	
  180

  
	
   

  	
   

  	
   

  
	
  41.

  	
  ENGLISH
  LANGUAGE

  	
  182

  
	
   

  	
   

  	
   

  
	
  42.

  	
  PARTIAL
  INVALIDITY

  	
  182

  
	
   

  	
   

  	
   

  
	
  43.

  	
  AMENDMENTS

  	
  182

  
	
   

  	
   

  	
   

  
	
  44.

  	
  AMENDMENT
  UPON STRUCTURE NOTICE

  	
  187

  
	
   

  	
   

  	
   

  
	
  45.

  	
  THIRD PARTY
  RIGHTS

  	
  188

  
	
   

  	
   

  	
   

  
	
  46.

  	
  COUNTERPARTS

  	
  188

  
	
   

  	
   

  	
   

  
	
  47.

  	
  GOVERNING
  LAW

  	
  188

  
	
   

  	
   

  	
   

  
	
  48.

  	
  JURISDICTION

  	
  189

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 PRO FORMA BANK GROUP
  FINANCIAL STATEMENTS

  	
   

  
	
   

  	
   

  
	
  SCHEDULE 2 PRO FORMA BUDGET
  INFORMATION

  	
   

  
	
   

  	
   

  
	
   

  	
  ANNEX A
  - FORM OF STRUCTURE 2 SENIOR FACILITIES AGREEMENT

  	
   

  



 


ii

















 


THIS
AGREEMENT is dated [•] 2006


 


BETWEEN:


 


(1)           TELEWEST
GLOBAL, INC. (to be renamed “NTL INCORPORATED” on or
following consummation of the Merger), a company incorporated in the State of
Delaware, United States of America, whose registered office is at 1105 North
Market Street, Suite 1300, Wilmington, Delaware 19801, United States of
America (the “Ultimate Parent”);


 


(2)           NTL CABLE PLC, a company
incorporated in England & Wales with registered number 5061787 and
having its registered office at NTL House, Bartley Wood Business Park, Hook,
Hampshire RG27 9UP (the “NTL Cable”);


 


(3)           NTL
INVESTMENT HOLDINGS LIMITED, a company incorporated in England & Wales under
registered number 3173552 and having its registered office at NTL House,
Bartley Wood Business Park, Hook, Hampshire, RG27 9UP (“NTLIH”);


 


(4)           TELEWEST COMMUNICATIONS NETWORKS LIMITED, a company incorporated in England & Wales
under registered number 3071086, and having its registered office at Export
House, Cawsey Way, Woking, Surrey, GU21 6QX (or, following a Solvent
Liquidation thereof pursuant to the provisions of Clause 25.20 (Solvent Liquidation), the relevant Successor Entity, “TCN”);


 


(5)           NTLIH SUB LIMITED, a company incorporated in England & Wales with registered
number 5316140 and having its
registered office at NTL House, Bartley Wood
Business Park, Hook, Hampshire, RG27 9UP (“NTLIH Sub”);


 


(6)           NTL DOVER LLC, a
limited liability company organised under the laws of the State of Delaware,
United States of America, whose registered office is at c/o National Registered
Agents, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware 19904,
United States of America (the “US Borrower”);


 


(7)           THE ORIGINAL GUARANTORS (as defined below);


 


(8)           DEUTSCHE BANK AG, LONDON BRANCH, J.P. MORGAN PLC, THE ROYAL
BANK OF SCOTLAND PLC and GOLDMAN SACHS INTERNATIONAL (each a “Bookrunner” and together, the “Bookrunners”);


 


(9)           DEUTSCHE
BANK AG, LONDON BRANCH, J.P. MORGAN PLC, THE ROYAL BANK OF SCOTLAND PLC and GOLDMAN SACHS
INTERNATIONAL (each a “Mandated
Lead Arranger” and together, the “Mandated
Lead Arrangers”);


 


(10)         DEUTSCHE BANK AG, LONDON BRANCH (as agent for and on behalf of
the Finance Parties, the “Facility Agent”);


 


(11)         DEUTSCHE BANK AG, NEW YORK BRANCH (as
United States paying agent for and on behalf of the Finance Parties,  the “US
Paying Agent”);


 


(12)         DEUTSCHE BANK AG, LONDON BRANCH (as
security trustee for and on behalf of the Finance Parties, the “Security Trustee”); 


 


(13)         GE CORPORATE BANKING EUROPE SAS (as administrative agent, the “Administrative Agent”);


 


(14)         THE LENDERS (as defined below); 


 


3

















 


(15)         THE B FACILITY LENDERS listed in Part 3 of Schedule 1 (the “B Facility Lenders”);
and


 


(16)         DEUTSCHE BANK AG, LONDON BRANCH as L/C Bank (the “Original
L/C Bank”).


 


1.             DEFINITIONS AND INTERPRETATION


 


1.1          Definitions


 


In this Agreement
the following terms have the meanings set out below.


 


“80% Security Test” means the requirement
that, save as otherwise provided in Clause 24.12 (Further Assurance), members of the Bank Group generating not
less than 80% of Consolidated Operating Cashflow (excluding for the purposes of
this calculation, any Consolidated Net Income attributable to any Joint
Venture) have acceded as Guarantors to this Agreement as tested by reference to
each set of annual financial information relating to the Bank Group delivered
to the Facility Agent pursuant to Clause 22.1 (Financial
Statements). 


 


“A Facility” means the term loan facility
granted to the Borrowers pursuant to Clause 2.1(a) (The
Facilities). 


 


“A Facility Margin” means, in relation to A
Facility Advances, and subject to Clause 14.7 (Margin
Ratchet for A Facility Advances and A1 Facility Advances), 1.625%
per annum.


 


“A Facility Outstandings” means, at any
time, the aggregate principal amount of the A Facility Advances outstanding
under this Agreement.


 


“A1 Facility”
means the term loan facility granted to Baseball Cash Bidco pursuant to Clause
2.1(b) (The Facilities).


 


“A1 Facility Margin”
means, in relation to A1 Facility Advances, and subject to Clause 14.7 (Margin Ratchet for A Facility Advances and A1 Facility Advances),
1.625% per annum.


 


“A1 Facility Outstandings”
means, at any time, the aggregate principal amount of the A1 Facility Advances
outstanding under this Agreement.


 


“Acceding Borrower” means a member of the Bank Group which
has complied with the requirements of Clause 26.1 (Acceding
Borrower).


 


“Acceding Group Company”
means an Acceding Borrower, an Acceding Guarantor or an Acceding Holding
Company, as the context may require.


 


“Acceding Guarantor” means any member of the
Bank Group which has complied with the requirements of Clause 26.2 (Acceding Guarantors).


 


“Acceding Holding Company” means any person
which becomes the Holding Company of the Ultimate Parent and which has complied
with the requirements of Clause 26.3 (Acceding Holding Company).


 


“Acceding Obligors” means the Acceding Borrowers and the
Acceding Guarantors.


 


“Acceleration Date” means the date on which
a written notice has been served under Clause 27.17 (Acceleration).


 


4

















 


“Acceptable Hedging Agreement” means a
Hedging Agreement entered into on the terms of the International Swaps &
Derivatives Association Inc. 1992 or 2002 Master Agreement (Multicurrency-Cross
Border) under which:


 


(a)           if the
1992 Master Agreement is used, “Second Method” and “Market Quotation” are
specified as the payment method applicable; 


 


(b)           if the 2002 Master Agreement is used, the relevant
agreement provides for two way payments; and


 


(c)           the
governing Law is English or New York Law.


 


“Accession Notice” means a duly completed
notice of accession in the form of Part 1 of Schedule 7 (Form of Accession Notice).


 


“Act” means the Companies Act 1985 (as
amended).


 


“Additional Assets” means any property, stock or other assets
to be used by any member of the Bank Group in the Group Business or any
business whose primary operations are directly related to the Group Business.


 


“Advance” means:


 


(a)           when designated “A Facility”,
the principal amount of each advance made or to be made under the A Facility or
arising in respect of the A Facility under Clause 14.3 (Consolidation
of Term Facility Advances) or under Clause 14.4 (Division of Term Facility Advances);


 


(b)           when designated “A1 Facility”,
the principal amount of each advance made or to be made under the A1 Facility
or arising in respect of the A1 Facility under Clause 14.3 (Consolidation of Term Facility Advances) or under Clause
14.4 (Division of Term Facility Advances);


 


(c)           when designated “B1 Facility”,
the principal amount of each advance made or to be made under the B1 Facility
or arising in respect of the B1 Facility under Clause 14.3 (Consolidation of Term Facility Advances) or under Clause
14.4 (Division of Term Facility Advances);


 


(d)           when designated “Revolving
Facility”, the principal amount of each advance made or to be made
under the Revolving Facility (but excluding for the purposes of this
definition, any utilisation of the Revolving Facility by way of Ancillary
Facility or Documentary Credit); or


 


(e)           without any such designation, the “A Facility Advance”, the “A1 Facility
Advance”, “B1 Facility Advance”
and/or the “Revolving Facility Advance”, as
the context requires,


 


in each case as from time to time reduced by repayment
or prepayment.


 


“Affiliate” means, in relation to a person,
any other person directly or indirectly controlling, controlled by or under
direct or indirect common control with that person, and for these purposes “control”
shall be construed so as to mean the ownership, either directly or indirectly
and legally or beneficially, of more than 50% of the issued share capital of a
company or the ability to control, either directly or indirectly, the affairs
or the composition of the board of directors (or equivalent of it) of a company
and “controlling”, “controlled by” and “under common control with” shall be
construed accordingly.


 


“Agents” means the Facility Agent, the US Paying Agent and
the Administrative Agent, and “Agent” means
either of them.


 


5

















 


“Agreed Business Plan” means the business
plan, financial model and analysis of the future funding requirements of the
Company and the Bank Group prepared by the Company and delivered to the
Mandated Lead Arrangers, in the agreed form, prior to the date of this
Agreement.


 


“Alternative Baseball
Acquisition” means the acquisition (other than pursuant to the
Baseball Scheme) by any member of the Bank Group of not less than 71% of the
total issued share capital of Baseball which is funded by Alternative Baseball
Financing or by Guaranteed Parent Debt.


 


“Alternative Baseball
Financing” means, following the cancellation of the A1 Facility
Commitments and the B1 Facility Commitments, an amount of up to £500 million
raised by way of the introduction of one or more tranches under this Agreement
and having a final maturity date which falls no earlier than the Final Maturity
Date for the A Facility,  for the
purposes of (i) paying the cash consideration of an Alternative Baseball
Acquisition, (ii) refinancing the Existing Baseball Facilities and (iii) paying
the fees, costs and expenses payable by or on behalf of the Bank Group in
connection with the Alternative Baseball Acquisition.


 


“Alternative Bridge
Facility” means the alternative bridge facility made available
pursuant to the Alternative Bridge Facility Agreement, the proceeds of which
are on-lent to the Company and following a series of transactions as more
particularly described in the Steps Paper, applied for the purposes of repaying
in part, amounts outstanding under the Bridge Facility.


 


“Alternative Bridge
Facility Agreement” means the senior subordinated bridge facility
agreement to be entered into prior to the Structuring Date between, among
others, the Parent and the Mandated Lead Arrangers (as defined therein)
relating to the Alternative Bridge Facility or any agreement entered into
pursuant thereto and in accordance with the terms thereof for the purposes of
extending the term of such facilities beyond one year (including, in each case,
any Exchange Notes).


 


“Ancillary Facility” means any:


 


(a)           overdraft,
automated payment, cheque drawing or other current account facility;


 


(b)           forward
foreign exchange facility;


 


(c)           derivatives
facility;


 


(d)           guarantee,
bond issuance, documentary or stand-by letter of credit facility; 


 


(e)           performance
bond facility; and/or


 


(f)            such
other facility or financial accommodation as may be required in connection with
the Group Business and which is agreed in writing between the relevant UK
Borrowers and the relevant Ancillary Facility Lender.


 


“Ancillary Facility Commitment” means, in
relation to an Ancillary Facility Lender at any time, and save as otherwise
provided in this Agreement, the maximum Sterling Amount to be made available
under an Ancillary Facility granted by it, to the extent not cancelled or
reduced or transferred pursuant to the terms of such Ancillary Facility or
under this Agreement.


 


“Ancillary Facility Documents” means the
documents and other instruments pursuant to which an Ancillary Facility is made
available and the Ancillary Facility Outstandings under it are evidenced.


 


“Ancillary Facility Lender” means any Lender
which has notified the Facility Agent that it has agreed to its nomination in a
Conversion Notice to be an Ancillary Facility Lender in respect of an Ancillary
Facility granted pursuant to the terms of this Agreement.


 


6

















 


“Ancillary Facility Outstandings” means
(without double counting), at any time with respect to an Ancillary Facility
Lender and each Ancillary Facility provided by it, the aggregate of:


 


(a)           all
amounts of principal then outstanding under any overdraft, automated payment,
cheque drawing or other current account facility (determined in accordance with
the applicable terms) as at such time; and


 


(b)           in respect
of any other facility or financial accommodation, such other amount as fairly
represents the aggregate potential exposure of that Ancillary Facility Lender
with respect to it under its Ancillary Facility, as reasonably determined by
that Ancillary Facility Lender from time to time in accordance with its usual
banking practices for facilities or accommodation of the relevant type
(including without limitation, the calculation of exposure under any
derivatives facility by reference to the mark-to-market valuation of such
transaction at the relevant time).


 


“Ancillary Facility Termination Date” has
the meaning given to such term in paragraph (h) of Clause 6.1 (Utilisation of Ancillary Facilities).


 


“Anti-Terrorism Laws” mean:


 


(a)           Executive Order No. 13224
of September 23, 2001 - Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten To Commit, or Support Terrorism (the “Executive Order”); 


 


(b)           the Uniting and
Strengthening of America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the
USA Patriot Act); and


 


(c)           the Money
Laundering Control Act of 1986, Public Law 99-570.


 


“Applicable Margin” means the prevailing A
Facility Margin, the A1 Facility Margin, the B1 Facility Margin or Revolving
Facility Margin, as the context may require at the relevant time.


 


“Arrangers” means the Mandated Lead Arrangers and the Joint
Lead Arrangers and “Arranger” means
any of them.


 


“Asset Passthrough” means a series of transactions
between a Bank Holdco, one or more members of the Bank Group and an Asset
Transferring Party where:


 


(a)           in the case of an
asset being transferred by a Bank Holdco to the Asset Transferring Party that
asset:


 


(i)            is first
transferred by such Bank Holdco to a member of the Bank Group; and


 


(ii)           may
then be transferred between various members of the Bank Group, and is finally
transferred (insofar as such transaction relates to the Bank Group) to an Asset
Transferring Party; or 


 


(b)           in the case of an
asset being transferred by an Asset Transferring Party to a Bank Holdco, that
asset:


 


(i)            is first
transferred by that Asset Transferring Party to a member of the Bank Group; and



 


7

















 


(ii)           may then be transferred
between various members of the Bank Group, and is finally transferred (insofar
as such transaction relates to the Bank Group) to such Bank Holdco,


 


and where the purpose of each such asset
transfer is, in the case of an Asset Passthrough of the type described in
paragraph (a), to enable a Bank Holdco to indirectly transfer assets (other
than cash) to that Asset Transferring Party and, in the case of an Asset
Passthrough of the type described in paragraph (b), is to enable an Asset
Transferring Party to indirectly transfer assets (other than cash) to a Bank
Holdco, in either case, by way of transfers of those assets to and from (and,
if necessary, between) one or more members of the Bank Group in such a manner
as to be neutral to the Bank Group taken as a whole provided that:


 


(w)           the
consideration payable (if any) by the first member of the Bank Group to acquire
such assets comprises either (i) cash funded or to be funded directly or
indirectly by a payment from (in the case of an Asset Passthrough of the type
described in paragraph (a)) the Asset Transferring Party and (in the case of an
Asset Passthrough of the type described in paragraph (b)) a Bank Holdco, in
either case, in connection with that series of transactions or (ii) Subordinated
Funding or (iii) the issue of one or more securities;


 


(x)           the
consideration payable by (in the case of an Asset Passthrough of the type
described in paragraph (a)) the Asset Transferring Party is equal to the
consideration received or receivable by a Bank Holdco and (in the case of an
Asset Passthrough of the type described in paragraph (b)) by a Bank Holdco is
equal to the consideration received or receivable by the Asset Transferring
Party (and for this purpose, a security issued by one company shall constitute equal
consideration to a security issued by another company where such securities
have been issued on substantially the same terms and subject to the same
conditions);


 


(y)           all of
the transactions comprising such a series of transactions (from and including the
transfer of the assets by a Bank Holdco to and including the acquisition of
those assets by the Asset Transferring Party or vice versa) are completed
within two Business Days; and


 


(z)           upon
completion of all of the transactions comprising such a series of transactions,
no person (other than another member of the Bank Group) has any recourse to any
member of the Bank Group and no member of the Bank Group which is not an
Obligor may have any recourse to an Obligor, in each case in relation to such a
series of transactions (other than in respect of (i) the Subordinated
Funding or any rights and obligations under the securities, in each case,
mentioned in paragraph (w) above and (ii) covenants as to title provided,
in the case of an Asset Passthrough of the type described in paragraph (a), in
favour of the Asset Transferring Party on the same terms as such covenants were
provided by the Bank Holdco in respect of the relevant assets and, in the case
of an Asset Passthrough of the type described in paragraph (b), in favour of
the Bank Holdco on the same terms as such covenants were provided by the Asset
Transferring Party in respect of the relevant assets).


 


“Asset Transferring Party” means the member
of the Group (or any person in which a member of the Bank Group owns an
interest but which is not a member of the Group), other than a member of the
Bank Group (except where the asset being transferred is a security where such
member of the Group may be a member of the Bank Group), who is the initial
transferor or final transferee in respect of a transfer to or from a Bank
Holdco, as the case may be, through one or more members of the Bank Group.


 


8

















 


“Associated Costs Rate” means, in relation
to any Advance or Unpaid Sum, the rate determined in accordance with Schedule 6
(Associated Costs Rate).


 


“Authorisation” means an authorisation,
consent, approval, resolution, licence, exemption, filing, notarisation or
registration.


 


“Available A Facility Commitment” means, in
relation to a Lender, at any time and save as otherwise provided in this
Agreement, its A Facility Commitment at such time less the Sterling Amount of
its share of the A Facility Advances made under this Agreement, adjusted to
take account of:


 


(a)           any
cancellation or reduction of, or any transfer by such Lender or any transfer to
it of, any A Facility Commitment, in each case, pursuant to the terms of this
Agreement; and


 


(b)           in the
case of any proposed Advance, the Sterling Amount of its share of such A Facility
Advance which, pursuant to any other Utilisation Request is to be made on or
before the proposed Utilisation Date,


 


provided always
that such amount shall not be less than zero.


 


“Available A1
Facility Commitment” means, in relation to a Lender, at any time and
save as otherwise provided in this Agreement, its A1 Facility Commitment at
such time less the Sterling Amount of its share of the A1 Facility Advances
made under this Agreement, adjusted to take account of:


 


(a)           any cancellation or reduction of, or any
transfer by such Lender or any transfer to it of, any A1 Facility Commitment,
in each case, pursuant to the terms of this Agreement; and


 


(b)           in the case of any proposed Advance, the
Sterling Amount of its share of such A1 Facility Advance which, pursuant to any
other Utilisation Request is to be made on or before the proposed Utilisation
Date,


 


provided always that such amount shall not be less
than zero.


 


“Available Ancillary Facility Commitment”
means, in relation to an Ancillary Facility Lender and an Ancillary Facility
granted by it at any time, and save as otherwise provided in this Agreement or
in the applicable Ancillary Facility Documents, its Ancillary Facility
Commitment at such time, less the Sterling Amount of the relevant Ancillary Facility
Outstandings at such time, provided always that such amount shall not be less
than zero.


 


“Available B1
Facility Commitment” means, in relation to a Lender, at any time and
save as otherwise provided in this Agreement, its B1 Facility Commitment at such
time less the Sterling Amount of its share of the B1 Facility Advances made
under this Agreement, adjusted to take account of:


 


(a)           any cancellation or reduction of, or any
transfer by such Lender or any transfer to it of, any B1 Facility Commitment, in
each case, pursuant to the terms of this Agreement; and


 


(b)           in the case of any proposed Advance, the
Sterling Amount of its share of such B1 Facility Advance which, pursuant to any
other Utilisation Request is to be made on or before the proposed Utilisation
Date,


 


provided always that such amount shall not be less
than zero.


 


9

















 


“Available Commitment” means, in relation to
a Lender, the aggregate amount of  its
Available A Facility Commitments, its Available A1 Facility Commitments,
its Available B1 Facility Commitments, its Available Revolving Facility
Commitment and its Available Ancillary Facility Commitment, or, in the context
of a particular Facility, its Available A Facility Commitment, its Available A1
Facility Commitments, its Available B1 Facility Commitments, its Available
Revolving Facility Commitment or its Available Ancillary Facility Commitment,
as the context may require.


 


“Available Facility” means, in relation to a
Facility, at any time, the aggregate amount of the Available Commitments in
respect of that Facility at that time.


 


“Available Revolving Facility” means, at any
time, the aggregate amount of the Available Revolving Facility Commitments. 


 


“Available Revolving Facility Commitment” means,
in relation to a Lender, at any time and save as otherwise provided in this
Agreement, its Revolving Facility Commitment at such time, less the Sterling
Amount of its share of the Revolving Facility Outstandings, adjusted to take
account of:


 


(a)           any
cancellation or reduction of, or any transfer by such Lender or any transfer to
it of, any Revolving Facility Commitment, in each case, pursuant to the terms
of this Agreement; and


 


(b)           in the
case of any proposed Utilisation, the Sterling Amount of its share of (i) such
Revolving Facility Advance and/or Documentary Credit which pursuant to any
other Utilisation Request is to be made, or as the case may be, issued, and (ii) any
Revolving Facility Advance and/or Documentary Credit which is due to be repaid or
expire (as the case may be), in each case, on or before the proposed
Utilisation Date,


 


provided always
that such amount shall not be less than zero.


 


“B1 Facility”
means the term loan facility granted pursuant to Clause 2.1(c) (The Facilities) to Baseball Cash Bidco and/or pursuant to
the provisions of Clause 2.2 (Novation of B1 Facility),
the US Borrower.


 


“B1 Facility Margin”
means, in relation to the B1 Facility Advances, 2.250% per annum.


 


“B1 Facility Outstandings”
means, at any time the aggregate principal amount of the B1 Facility Advances
outstanding under this Agreement.


 


“Bank Group” means:


 


(a)           for
the purposes of the definition of “Bank Group Consolidated Revenues”, Clause
22.1 (Financial Statements), Clause 22.3 (Budget) and Clause 23 (Financial Condition)
and any other provisions of this Agreement using the terms defined in Clause 23
(Financial Condition):


 


(i)            the
Company and TCN;


 


(ii)           NTL
South Herts, for so long as a member of the Bank Group is the general partner
of South Hertfordshire United Kingdom Fund, Ltd or if it becomes a wholly-owned
Subsidiary of the Company;


 


(iii)         Fawnspring
Limited, for so long as it is a Subsidiary of the Company;


 


(iv)          each
of the Company’s and TCN’s other direct and indirect Subsidiaries from time to
time, excluding the Bank Group Excluded Subsidiaries; and


 


10

















 


(v)            without
prejudice to sub-paragraph (iv) above, each of the direct and indirect
Subsidiaries from time to time of NTL Communications Limited, excluding any
Subsidiary thereof which has a direct or indirect interest in the Company or
TCN;


 


(b)           for
all other purposes:


 


(i)            the Company and TCN
and each of their respective direct and indirect Subsidiaries from time to
time, other than the Bank Group Excluded Subsidiaries; and 


 


(ii)           each
of the direct and indirect Subsidiaries from time to time of NTL Communications
Limited to the extent not already included by virtue of sub-paragraph (i) above,
and excluding, any Subsidiary thereof which has a direct or indirect interest
in the Company or TCN,


 


but excluding for all purposes under (a) and
(b) above:


 


(i)            any Permitted Joint
Ventures; and


 


(ii)           the Baseball Group,
if the Baseball Acquisition is funded by a Stand Alone Baseball Financing.


 


For information purposes
only, the members of the Bank Group as at the date of this Agreement for the
purposes of paragraph (b) are listed in Part 1 of Schedule 9 (Members of the Bank Group).


 


“Bank Group Cash Flow” has the meaning
ascribed to it in Clause 23.1 (Financial Definitions).


 


“Bank Group Consolidated Revenues” means, in
respect of any period, the consolidated revenues for the Bank Group for that
period as evidenced by the financial information provided in respect of that
period pursuant to Clause 22.1 (Financial Statements).


 


“Bank Group Excluded Subsidiary” means:


 


(a)           any
Subsidiary of the UK Borrowers or NTL Communications Limited which is a Dormant
Subsidiary and which (i) has assets (save for loans existing on the date
of this Agreement owed to it by other members of the Bank Group) with an
aggregate value of £10,000 or less; and (ii) is not a Guarantor;


 


(b)           Telewest
Finance Corporation;


 


(c)           Flextech Interactive Limited;              


 


(d)           Fawnspring
Limited;


 


(e)           NTL
South Herts and its Subsidiaries, until such time as NTL South Herts becomes a
wholly-owned Subsidiary of the Company;


 


(f)            any
Subsidiary of the UK Borrowers or NTL Communications Limited which is a Project
Company; and


 


(g)           any
company which becomes a Subsidiary of the Parent or NTL Communications Limited in
each case, after the date of this Agreement pursuant to an Asset Passthrough,


 


provided
that any Bank Group Excluded Subsidiary may, at the
election of the Parent and upon not less than 10 Business Days’ prior written
notice to the Facility Agent, cease to be a Bank Group Excluded Subsidiary and
become a member of the Bank Group.


 


11

















 


“Bank Holdco” means a direct Holding Company
of a member of the Bank Group which is not a member of the Bank Group.


 


“Barclays Intercreditor Agreement” has the meaning given to
such term in the Group Intercreditor Agreement.


 


“Baseball”
means Virgin Mobile Holdings (UK) plc, incorporated in England & Wales
with registered number 3741555 and having its registered offices at Willow
Grove House, Windsor Road, White Horse Business Park, Trowbridge, Wiltshire,
BA14 0TQ.


 


“Baseball Acquisition” means the proposed
acquisition by the Baseball Bidcos of the entire issued and to be issued share
capital of Baseball by
way of a scheme of arrangement under Section 425 of the Act with Baseball’s shareholders.


 


“Baseball Bidcos” means Baseball Cash Bidco and Baseball
Stock Bidco.


 


“Baseball Cash Bidco” means NTL Investment Holdings Limited,
a company incorporated in England & Wales with registered number
3173552 and having its registered office at NTL House, Bartley Wood Business
Park, Hook, Hampshire RG27 9UP.


 


“Baseball Certain Funds Period” means, in relation to the A1
Facility and the B1 Facility, the period commencing on the date of this Agreement
and ending on the earlier of (a) the date on which the Baseball Scheme
proposal fails or is withdrawn, (b) 30 September 2006 or (c) the
date which is 30 days after the Baseball Effective Date.


 


“Baseball Clean-Up Period”
means the period commencing on the Baseball Effective Date and ending on the
date falling 4 months and 2 weeks thereafter.


 


“Baseball Drawstop Default”
means an Event of Default arising under any of the following provisions, in
each case, with respect to Baseball Cash Bidco only:


 


(a)           Clause 27.1 (Non-Payment);


 


(b)           Clause 27.2 (Covenants)
by virtue of a breach of the covenants under Clause 25.2 (Negative
Pledge) (in a manner which could reasonably be expected to have a
material adverse effect on the Security (taken as a whole)) or paragraphs (a),
(b), (c), (d), (g), (h) and (j) of Clause 24.22 (Baseball
Scheme Undertakings);


 


(c)           Clause 27.4 (Misrepresentation)
by virtue of a breach of any of the representations and warranties in Clauses
21.2 (Due Organisation) only as regards to the
provisions of this Agreement that relate to the A1 Facility and the B1
Facility, but not otherwise; or


 


(d)           Clause 27.6 (Insolvency),
Clause 27.7 (Winding-Up), Clause 27.8 (Execution and Distress) or Clause 27.9 (Similar
Events) other than any such event which is caused by the occurrence
or potential occurrence of another Event of Default.


 


“Baseball Effective Date”
means the date on which the Court Order is filed with the Registrar of
Companies pursuant to Section 425 of the Act.


 


“Baseball Group”
means Baseball and
each of its Subsidiaries from time to time.


 


“Baseball Lender”
means:


 


(a)           in relation to the A1 Facility and B1
Facility, any Lender which:


 


(i)            is named in Part 1 of Schedule 1
(Lenders and Commitments) as a Lender in
respect 


 


12

















 


of the
A1 Facility and/or B1 Facility; or


 


(ii)           has become a party to this Agreement in
accordance with the provisions of Clause 37 (Assignments
and Transfers) as a Lender in respect of the A1 Facility and/or B1
Facility; or


 


(b)           in relation to an Alternative Baseball
Financing, any Lender which has provided the Company and/or Baseball Cash
Bidco, with a commitment to provide some or all of the Alternative Baseball
Financing, whether pursuant to a duly executed commitment letter, this
Agreement or otherwise,


 


which in each case has not ceased to be a party to
this Agreement in accordance with the terms of this Agreement.


 


“Baseball Implementation
Agreement” means the agreement to be entered into between NTL
Incorporated, the Baseball Bidcos and Baseball in respect of the Baseball
Scheme (in the form agreed with the Bookrunners on or before the date of this
Agreement).


 


“Baseball Instructing Group”
means:


 


(a)           in relation to the A1 Facility and B1
Facility:


 


(i)            before any Utilisation of the A1 Facility
and the B1 Facility under this Agreement, a Baseball Lender or group of
Baseball Lenders whose Available A1 Facility Commitments and Available B1
Facility Commitments (as applicable) amount in aggregate to more than 662/3%
of the Available A1 Facility Commitments and Available B1 Facility Commitments
(taken together); and


 


(ii)           thereafter, a Baseball Lender or group of
Baseball Lenders to whom in aggregate more than 662/3% of
the A1 Facility Outstandings and B1 Facility Outstandings (taken together) are
(or if there are no A1 Facility Outstandings or B1 Facility Outstandings at
such time, immediately prior to their repayment, were then) owed; or


 


(b)           in relation to any Alternative Baseball
Financing:


 


(i)            before any Utilisation of the Alternative
Baseball Financing, a Baseball Lender or group of Baseball Lenders whose
commitments in respect of such Alternative Baseball Financing amount in
aggregate to more than 66 2/3% of the total commitments under such Alternative
Baseball Financing; or


 


(ii)           thereafter, a Baseball Lender or group of
Baseball Lenders to whom in aggregate more than 66 2/3%
of the outstandings under the Alternative Baseball Financing are (or if there
are no outstandings under the Alternative Baseball Financing prior to such
repayment, were then) owed.


 


in each case, calculated in accordance with the
provisions of Clause 43.9 (Calculation of Consents).


 


“Baseball Press Release”
means the announcement (in the form agreed with the Bookrunners on or before
the date of this Agreement) in accordance with Rule 2.5 of the Takeover
Code in respect of the Baseball Scheme by the Baseball Bidcos of all of the
issued and to be issued Baseball Shares not already owned by the Baseball
Bidcos.


 


“Baseball Resolutions”
means the resolutions passed at each of the board meetings and the
extraordinary general meeting of the Shareholders of Baseball.


 


13

















 


“Baseball Scheme”
means the scheme of arrangement under Section 425 of the
Act to be proposed by
Baseball to its shareholders, details of which are set out in the Baseball
Scheme Circular and which are consistent with the terms of the Baseball Press
Release.


 


“Baseball Scheme Circular”
means the circular to the shareholders of Baseball setting out the proposals
for the Baseball Scheme pursuant to which the Baseball Bidcos will acquire all
of the issued and to be issued Baseball Shares not already owned by the
Baseball Bidcos.


 


“Baseball Scheme Document”
means each of the following: 


 


(a)           the Baseball Press Release;


 


(b)           the Baseball Resolutions;


 


(c)           the Baseball Implementation Agreement;
and


 


(d)           the Baseball Scheme Circular,


 


and together the “Baseball Scheme Documents”.


 


“Baseball Shares”
means  the ordinary shares of Baseball
issued as at the date of this Agreement together with any shares to be issued
by Baseball prior to the Baseball Effective Date.


 


“Baseball Stock Bidco” means NTL (UK) Group, Inc., a
company incorporated in the State of Delaware, United States of America,
registered as a foreign company under the Act with registered number FC018124
and having its registered office at 9 East Loockerman Street, Suite 1B,
Dover, Delaware  19901, United States of America.


 


“BBA LIBOR” means in relation to LIBOR, the
British Bankers Association Interest Settlement Rate for the relevant currency
and Interest Period displayed on the appropriate page of the Telerate
screen.  If the agreed page is
replaced or service ceases to be available, the Facility Agent may specify
another page or service displaying the appropriate rate after consultation
with the Company and the Lenders. 


 


“BBC Guarantees”
means the guarantees required to be given by the Borrowers in favour of BBC
Worldwide Limited pursuant to the shareholder agreements relating to the UKTV
Joint Ventures.


 


“Beneficiary” means a beneficiary in respect
of a Documentary Credit.


 


“Blocked Account” means each interest
bearing account maintained with the Facility Agent (or such other bank as the
Facility Agent and the Company may jointly determine) in the name of an Obligor
for the purposes of Clauses 12.3 (Blocked Accounts)
or 12.8 (Trapped Cash) which is secured in favour
of the Security Trustee pursuant to the Security Documents, or as otherwise
required by the terms of this Agreement.


 


“Borrowers” means the UK Borrowers, the US
Borrower and any Acceding Borrower.


 


“Break Costs” means the amount (if any) by
which:


 


(a)           the
interest (excluding the Applicable Margin and Associated Costs Rate) which a
Lender should have received for the period from the date of receipt of all or
any part of its participation in an Advance or Unpaid Sum to the last day of
the current Interest Period or Term in respect of that Advance or Unpaid Sum,
had the amount so received been paid on the last day of that Interest Period or
Term;


 


14

















 


exceeds:


 


(b)           the
amount which that Lender would be able to obtain by placing an amount equal to
the principal amount of such Advance or Unpaid Sum received or recovered by it
on deposit with a leading bank in the Relevant Interbank Market for a period
starting on the Business Day following such receipt or recovery and ending on
the last day of the current Interest Period or Term.


 


“Bridge Facility” means the £1,800,000,000
bridge facility, the proceeds of which will be applied to fund the Ultimate
Parent’s deposit with the Exchange Agent (as defined in the Merger Agreement)
for the benefit of the Ultimate Parent’s shareholders, cash in an amount equal
to the Redemption Consideration as required under the Merger Agreement, and the
payment of any transaction fees and expenses in connection with the Merger
Agreement and the Finance Documents.


 


“Bridge Facility Agreement” means the senior
subordinated bridge facility agreement dated on or about the date hereof
between, among others, Merger Sub, NTL and the Mandated Lead Arrangers (as
defined therein) relating to the Bridge Facility or any agreement entered into
pursuant thereto and in accordance with the terms thereof for the purposes of
extending the term of such facilities beyond one year (including, in each case,
any Exchange Notes).


 


“Bridge Finance Documents” has the meaning
given to the term “Finance Documents”
in the Bridge Facility Agreement, the Alternative Bridge Facility Agreement or,
in each case, any Exchange Notes, as the case may be, as the context may
require.


 


“Budget” means in respect of any financial
year commencing after 31 December 2006, the budget for such financial
year, in the form and including the information required to be delivered by the
Company to the Facility Agent pursuant to Clause 22.3 (Budget).


 


“Business Day” means a day (other than a
Saturday or Sunday) on which (a) banks generally are open for business in
London and (b) if such reference relates to a date for the payment or
purchase of any sum denominated in:


 


(a)           euro (A) is
a TARGET Day and (B) is a day on which banks generally are open for
business in the financial centre selected by the Facility Agent for receipt of
payments in euro; or


 


(b)           in a
currency other than euro, banks generally are open for business in the
principal financial centre of the country of such currency.


 


“Business Division Transaction”
means any sale, transfer, demerger, contribution, spin-off or distribution of,
any creation or participation in any joint venture and/or entering into any
other transaction or taking any action with respect to, in each case, any
assets, undertakings and/or businesses of the Group which comprise all or part
of the “NTL – Business Segment” of the Group, to or with any other entity or
person, whether or not within the Group or the Bank Group, in each case, where
such transaction has the prior approval of an Instructing Group.


 


“Captive
Insurance Company”
means any captive insurance company for the Group (or any part thereof, which
includes the Bank Group).


 


“Cash” has the meaning ascribed to it in
Clause 23.1 (Financial Definitions).


 


“Cash Equivalent Investment” means:


 


(a)           debt securities
which are freely negotiable and marketable:


 


(i)            which mature not more than 12 months from the date
of acquisition; and


 


15

















 


(ii)           which are rated at least AA by Standard &
Poor’s or Fitch or Aa2 by Moody’s;


 


(b)           certificates
of deposit of, or time deposits or overnight bank deposits with, any commercial
bank whose short-term securities are rated at least A-2 by Standard and Poor’s or Fitch or P-2 by Moody’s and having
maturities of 12 months or less from the date of acquisition;


 


(c)           commercial
paper of, or money market accounts or funds with or issued by, an issuer rated
at least A-2 by Standard & Poor’s or Fitch or P-2 by Moody’s and having an original tenor of 12
months or less; 


 


(d)           medium
term fixed or floating rate notes of an issuer rated at least AA by Standard &
Poor’s or Fitch or Aa2 by Moody’s
at the time of acquisition and having a remaining term of 12 months or less
from the date of acquisition; or


 


(e)           any
investment in a money market fund or enhanced yield fund (i) whose
aggregate assets exceed £250 million and (ii) at least 90% of whose assets
constitute Cash Equivalent Investments of the type described in paragraphs (a) to
(d) of this definition.


 


“Centre of Main Interests” has the meaning
given to it in Article 3(1) of Council Regulation (EC) NO 1346/2000
of 29 May 2000 on Insolvency Proceedings.


 


“Change in Tax Law” means the introduction,
implementation, repeal, withdrawal or change in, or in the interpretation,
administration or application of any Law relating to taxation (a) in the
case of a participation in an Advance by a Lender named in Part 1 of  Schedule 1 (Lenders and
Commitments) after the date of this Agreement, or (b) in the
case of a participation in an Advance by any other Lender, after the date upon
which such Lender becomes a party to this Agreement in accordance with the
provisions of Clause 37 (Assignments and Transfers).


 


“Change of Control” means:


 


(a)           any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) other than any Permitted Holder or a “group” of Permitted
Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that for purposes of this paragraph (a) such
person or group shall be deemed to have “beneficial ownership” of all shares
that such person or “group” has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the Voting Stock of the Ultimate Parent (for
the purposes of this paragraph (a), such person shall be deemed to
beneficially own any Voting Stock of an entity held by any other entity (the “parent entity”), if such person is the beneficial owner (as
defined in this paragraph (a)), directly or indirectly, of more than 50%
of the Voting Stock of such parent entity);


 


(b)           the sale of all or
substantially all of the assets of the Bank Group taken as a whole;


 


(c)           during any period
of two consecutive years, individuals who at the beginning of such period
constituted the board of directors of the Ultimate Parent (together with any
new directors whose election by such board of directors or whose nomination for
election by the shareholders of such company was approved by a vote of a
majority of the directors of such company then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the board of directors of the Ultimate Parent, then in the office;


 


(d)           any change of control
(howsoever defined) occurs under the Existing High Yield Notes or (if
applicable) any High Yield Refinancing, in each case, for so long as any
principal amount 


 


16

















 


remains owing under the same and to the extent
such Existing High Yield Notes or (if applicable) High Yield Refinancing are
not defeased; or


 


(e)           any change of control (howsoever defined) occurs
under the Bridge Facility Agreement or the Alternative Bridge Facility
Agreement or, if applicable the Exchange Notes or the NTL High Yield Notes, in
each case, for so long as any principal amount remains owing under the same,
and in the case of the Exchange Notes and NTL High Yield Notes only, to the
extent such Exchange Notes or NTL High Yield Notes are not defeased,


 


provided that an
event or transaction shall not constitute a Change of Control under
paragraphs (a), (b) or (c) above:


 


(i)            in the
event that the Ultimate Parent becomes a wholly-owned Subsidiary of a Holding
Company and the stockholders of such Holding Company are substantially the same
as the stockholders of the Ultimate Parent prior to such transaction (in the
case of clause (c) above, such Holding Company shall be treated as
the Ultimate Parent thereafter);


 


(ii)           if the
transaction is a “Non-Control Acquisition”; or


 


(iii)         as a
result of any transactions expressly contemplated by the Steps Paper.


 


For these purposes:


 


a “Non-Control Acquisition” shall mean (a) any acquisition
of Voting Stock of the Ultimate Parent by an employee benefit plan (or a trust
forming a part thereof) maintained by the Ultimate Parent or any Subsidiary of
the Ultimate Parent or any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan or trust, (b) any
acquisition of Voting Stock of the Ultimate Parent by the Ultimate Parent or
any Subsidiary of the Ultimate Parent, or (c) any “Non-Control Transaction”;
and


 


a “Non-Control Transaction” shall mean (a) a merger,
amalgamation or consolidation of the Ultimate Parent or any Subsidiary of the
Ultimate Parent with or into another entity or entities, or (b) a sale of
all or substantially all of the assets of the Bank Group taken as a whole to
another entity or entities (each under clause (a) and (b) a “Transaction”) in which:


 


(A)          the
stockholders of the Ultimate Parent immediately before such Transaction own
directly or indirectly immediately following such Transaction at least 50% of
the Voting Stock of the surviving or transferee entity or entities of such
Transaction or the ultimate parent company to such surviving or transferee
entity or entities; and


 


(B)          the
individuals who were members of the board of directors of the Ultimate Parent
immediately prior to the execution of the agreement providing for such Transaction
constitute at least a majority of the members of the board of directors of the
surviving or transferee entity or entities of such Transaction or, if such
surviving or transferee entity or entities is not the ultimate parent company
to the Bank Group, the ultimate parent company to such surviving or transferee
entity or entities.


 


Upon and following
a Non-Control Acquisition, under clauses (a) and (c) above, the
term the “Ultimate Parent” shall be deemed to be a reference to such surviving
or transferee entity or, if such surviving or transferee entity or entities is
not the ultimate parent company to the Bank Group, the ultimate parent company
to such surviving or transferee entity or entities.


 


“Code” means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
thereunder.  Section references to
the Code are to the Code, as in effect at the date of this 


 


17

















 


Agreement and any
subsequent provisions of the Code, amendatory of it, supplemental to it or
substituted therefor.


 


“Commitment”
means:


 


(a)           when designated
“A Facility” in relation to a Lender at any time, and
save as otherwise provided in this Agreement, the amount set opposite its name
in the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this Agreement;


 


(b)           when designated
“A1 Facility” in relation to a Lender at any time, and
save as otherwise provided in this Agreement, the amount set opposite its name
in the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this Agreement;


 


(c)           when designated
“B1 Facility” in relation to a Lender at any time, and
save as otherwise provided in this Agreement, the amount set opposite its name
in the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this Agreement; and


 


(d)           when designated
“Revolving Facility” in relation to a Lender at any time, and
save as otherwise provided in this Agreement, the amount set opposite its name
in the relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this Agreement,


 


and without any such designation means “A Facility Commitment”, “A1 Facility
Commitment”, “B1 Facility Commitment”
and “Revolving Commitment”, as the context
requires.


 


“Commitment Letter” means the letter dated 3
March 2006 from the Bookrunners to NTL and the Company in relation to the
commitment of the Bookrunners to arrange and underwrite the Facilities together
with the related accession notices entered into by the Arrangers.


 


“Company” means:


 


(a)           NTLIH; or


 


(b)           following a solvent
liquidation of NTLIH, pursuant to the provisions of Clause 25.20 (Solvent Liquidation), NTL Finance Limited.


 


“Compliance Certificate” means a certificate
substantially in the form set out in Schedule 8 (Form of
Quarterly Compliance Certificate) or such other similar form as the
Facility Agent shall agree with the Company.


 


“Consolidated Debt Service” has the meaning
ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Consolidated Net Debt” has the meaning
ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Consolidated Net Income” has the meaning
ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Consolidated Operating Cashflow” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Consolidated Total Debt” has the meaning
ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Consolidated Total Net Cash Interest Payable”
has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


18

















 


“Content” means any rights to broadcast,
transmit, distribute or otherwise make available for viewing, exhibition or
reception (whether in analogue or digital format and whether as a channel or an
Internet service, a teletext-type service, an interactive service, or an
enhanced television service or any part of any of the foregoing, or on a
pay-per-view basis, or near video-on-demand, or video-on-demand basis or
otherwise) any one or more of audio and/or visual images, audio content, or
interactive content (including hyperlinks, re-purposed web-site content,
database content plus associated templates, formatting information and other
data including any interactive applications or functionality), text, data,
graphics, or other content, by means of any means of distribution, transmission
or delivery system or technology (whether now known or herein after invented).


 


“Content Transaction” means any sale, transfer, demerger,
contribution, spin-off or distribution of, any creation or participation in any
joint venture and/or entering into any other transaction or taking any action
with respect to, in each case, any assets, undertakings and/or businesses of
the Group which comprise all or part of the Content business of the Group, to
or with any other entity or person whether or not within the Group or Bank
Group.


 


“Contribution Notice” means a financial
support direction issued by the Pensions Regulator under section 38 or section 47
of the Pensions Act 2004.


 


“Conversion Notice” has the meaning given to
such term in paragraph (a) of Clause 6.1 (Utilisation
of Ancillary Facilities).


 


“Cost” means the cost estimated in good
faith by the relevant member of the Bank Group to have been incurred or to be
received by that member of the Bank Group in the provision or receipt of the
relevant service, facility or arrangement, including, without limitation, a
proportion of any material employment, property, information technology,
administration, utilities, transport and materials or other costs incurred or
received in the provision or receipt of such service, facility or arrangement,
but excluding costs which are either not material or not directly attributable
to the provision or receipt of the relevant service, facility or arrangement.


 


“Court Order”
means the order of the Court confirming the sanctioning of the Baseball Scheme
as required by Section 425 of the Act.


 


“Current Assets” has the meaning ascribed to
it in Clause 23.1 (Financial Definitions).


 


“Current Liabilities” has the meaning
ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Debt Proceeds” means the cash proceeds received in respect
of any Financial Indebtedness raised by any member of the Group other than
Parent Debt (after deducting all reasonable fees, commissions, costs and
expenses incurred by any member of the Group in connection with such raising)
whether raised by way of bilateral or syndicated credit facilities, in the
international or domestic debt capital markets or otherwise and including, for
the avoidance of doubt, any debt which at any time following issuance is
capable of being converted or exchanged into equity.


 


“Debt Service Cover Ratio” has the meaning given to such term
in paragraph (c) of Clause 23.2 (Ratios).


 


“Deductions
Limit” means the total amounts
which are deductible for the purposes of UK corporation tax by members of the
Bank Group in any financial year and which (a) arise from the payment or
accrual of actual or imputed amounts of interest on, or (b) constitute
foreign exchange losses on, any loan made to any member of the Bank Group by
any Non-Bank Group UK Taxpayer.


 


“Default” means an Event of Default or any
event or circumstance which (with the expiry of a grace period, the giving of
notice, the making of any determination under any of the Finance Documents or
any combination of any of the foregoing) would be an Event of Default provided
that in relation to 


 


19

















 


any event which is
subject to a materiality threshold or condition before such event would
constitute an Event of Default, such default shall not constitute a Default
until such materiality threshold or condition has been satisfied.


 


“Disposal” means
any sale, transfer, lease, surrender or other disposal by any member of the
Bank Group of any shares in any of its Subsidiaries or all or any part of its
revenues, assets, other shares, business or undertakings other than in the
ordinary course of business or trade.


 


“Documentary Credit” means a letter of
credit, bank guarantee, indemnity, performance bond or other documentary credit
issued or to be issued by an L/C Bank pursuant to Clause 4.1 (Conditions to Utilisation).


 


“Dormant Subsidiary” means, at any time,
with respect to any company, any Subsidiary of such company which is “dormant”
as defined in Section 249AA of the Act (or the equivalent under the laws
of the jurisdiction of incorporation of the relevant company). 


 


“Double Taxation Treaty” means in relation
to a payment of interest on an Advance made to any Borrower, any convention or
agreement between the government of such Borrower’s Relevant Tax Jurisdiction
and any other government for the avoidance of double taxation with respect to
taxes on income and capital gains which makes provision for exemption from tax
imposed by such Borrower’s Relevant Tax Jurisdiction on interest.


 


“Effective Date” has the meaning given to
such term in paragraph (a) of Clause 6.1 (Utilisation
of Ancillary Facilities).


 


“Eligible Deposit Bank” has the meaning
ascribed to it in Clause 23.1 (Financial
Definitions).


 


“EMU” means Economic and Monetary Union as
contemplated in the Treaty on European Union.


 


“EMU Legislation” means legislative measures
of the European Union for the introduction of, changeover to or operation of
the euro in one or more member states, being in part legislative measures to
implement the third stage of EMU.


 


“Encumbrance” means:


 


(a)           a
mortgage, charge, pledge, lien, encumbrance or other security interest securing
any obligation of any person; 


 


(b)           any
arrangement under which money or claims to, or the benefit of, a bank or other
account may be applied, set-off or made subject to a combination of accounts so
as to effect payment of sums owed or payable to any person; or


 


(c)           any other
type of agreement or preferential arrangement (including title transfer and
retention arrangements) having a similar effect.


 


“Environment” means living organisms
including the ecological systems of which they form part and the following
media:


 


(a)           air
(including air within natural or man-made structures, whether above or below
ground);


 


(b)           water
(including territorial, coastal and inland waters, water under or within land
and water in drains and sewers); and


 


(c)           land
(including land under water).


 


20

















 


“Environmental Claim” means any
administrative, regulatory or judicial action, suit, demand, demand letter,
claim, notice of non-compliance or violation, investigation, proceeding,
consent order or consent agreement relating to any Environmental Law or
Environmental Licence.


 


“Environmental Law” means all laws and
regulations of any relevant jurisdiction which:


 


(a)           have
as a purpose or effect the protection of, and/or prevention of harm or damage
to, the Environment;


 


(b)           provide
remedies or compensation for harm or damage to the Environment; or 


 


(c)           relate
to Hazardous Substances or health or safety matters.


 


“Environmental Licence” means any
Authorisations required at any time under Environmental Law.


 


“Equity Equivalent Funding” means a loan
made to, or any Financial Indebtedness owed by, any person where the Financial
Indebtedness incurred thereby:


 


(a)           may
not be repaid at any time prior to the repayment in full of all Outstandings
and cancellation of all Available Commitments; 


 


(b)           carries
no interest or carries interest which is payable only on non-cash pay terms or
following repayment in full of all Outstandings and cancellation of all
Available Commitments; and


 


(c)           is
either (i) structurally and contractually subordinated to the Facilities
or (ii) contractually subordinated to the Facilities, in each case,
pursuant to the HYD Intercreditor Agreement and/or the Group Intercreditor
Agreement.


 


“Equity Proceeds” means the cash proceeds
raised by any member of the Group by way of equity securities offerings in the
international or domestic public equity capital markets (after deducting all
reasonable fees, commissions, costs and expenses incurred by any member of the
Group in connection with such raising) and which do not constitute Debt
Proceeds.


 


“ERISA” means the U.S. Employee Retirement
Income Security Act of 1974, as amended from time to time, and the regulations
promulgated and the rulings issued under it. 
Section references to ERISA are to ERISA as in effect on the date
of this Agreement.


 


“ERISA Affiliate” means, in relation to a
member of the Bank Group, each person (as defined in section 3(9) of
ERISA) which together with that member of the Bank Group would be deemed to be
a “single employer” within the meaning of section 414(b), (c), (m) or (o)
of the Code.


 


“EURIBOR” means, in relation to any amount
to be advanced to or owed by an Obligor under this Agreement in euro on which
interest for a given period is to accrue:


 


(a)           the
rate per annum for deposits in euro which appears on the Relevant Page for
such period at or about 11.00 am (Brussels time) on the Quotation Date for such
period; or


 


(b)           if no
such rate is displayed and the Facility Agent shall not have selected an
alternative service on which such rate is displayed as contemplated by the
definition of “Relevant Page”, the arithmetic mean (rounded upwards, if not
already such a multiple, to 5 decimal places) of the rates (as notified to the
Facility Agent) at which each of the Reference Banks was offering to prime
banks in the European Interbank Market deposits in euro for such period at or
about 11.00 am (Brussels time) on the Quotation Date for such period.


 


21

















 


“Eurobond” means
one or more listed notes issued by the Company to the US Borrower after the
date hereof either for cash subscription, in consideration of the novation of
debt obligations hereunder or in exchange for and satisfaction of the Short
Term Notes, as the same may be amended, supplemented, restated, increased,
replaced or otherwise modified from time to time as permitted under this
Agreement.


 


“European Interbank Market” means the
interbank market for euro operating in Participating Member States.


 


“Event of Default” means any of the events
or circumstances described as such in Clause 27 (Events of
Default).


 


“Excess Capacity Network Service” means the
provision of network services, or agreement to provide network services, by a
member of the Bank Group in favour of one or more other members of the Group
where such network services are only provided in respect of the capacity
available to such member of the Bank Group in excess of that network capacity
it requires to continue to provide current services to its existing and projected
future customers and to allow it to provide further services to both its
existing and projected future customers.


 


“Excess Cash Flow” means in relation to any
financial year of the Company, Bank Group Cash Flow less (a) Consolidated
Debt Service for such financial year, (b) the aggregate amount of all
payments or prepayments of principal, whether voluntary or mandatory, of
Consolidated Total Debt made in such financial year, (c) proceeds from
disposals permitted by Clause 25.6(i)(ii)(Disposals)
received during such financial year and (d) proceeds from any Content
Transaction or any Business Division Transaction received during such financial
year, provided that no such amounts prepaid and used in the calculation under
paragraph (b) shall be available for reborrowing and, provided further
that for the purposes of such calculation, no amount shall be included or
excluded more than once.


 


“Exchange Act” means the US Securities
Exchange Act of 1934, as amended.


 


“Exchange Notes” means each of the securities issued in
exchange for any of the loans outstanding under the Bridge Facility or the
Alternative Bridge Facility, as the context may require, and including any
indenture pursuant to which they are issued.


 


“Excluded Group” means each member of the
Group which is not a member of the Bank Group.


 


“Excluded Group Operating Cashflow” has the
meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Existing Baseball Facilities” means the certain senior
facilities agreement dated 2 July 2004 made between, amongst others, Baseball and Lloyds TSB
Bank PLC as Original Lender and as Agent (each as defined therein).


 


“Existing Credit Facilities” means the
Existing NTL Senior Credit Facilities Agreement, the Existing Telewest Senior
Credit Facilities Agreement, the Existing Telewest Second Lien Credit Facility
Agreement and the Existing Flextech Senior Credit Facilities Agreement.


 


“Existing Encumbrance” means any Encumbrance
existing as at the date of this Agreement, details of which are set out in Part 1
of Schedule 10 (Existing Encumbrances).


 


“Existing Financial Indebtedness” means the
Financial Indebtedness existing as at the date of this Agreement, details of
which are set out in Part 3 of Schedule 10 (Existing
Financial Indebtedness). 


 


“Existing Flextech Senior Credit Facilities Agreement”
means that certain senior credit facility agreement dated 10 May 2005 made
between the Flextech Broadband Limited and Flextech 


 


22

















 


Broadcasting
Limited as original borrowers, Barclays Capital, BNP Paribas, Citigroup Global
Markets Limited, Credit Suisse First Boston, Deutsche Bank AG London and others
as Arrangers, Barclays Bank PLC as Agent and Security Trustee, the Original
Guarantors and the financial and other institutions named therein as Lenders
(each as defined therein).


 


“Existing Hedging Agreements” means the
hedging agreements existing as at the date of this Agreement, details of which
are set out in Part 6 of Schedule 10 (Existing
Hedging Agreements).


 


“Existing High Yield Notes” means the
Sterling denominated 9.75% senior notes due 2014, the dollar denominated 8.75%
senior notes due 2014 and the euro denominated 8.75% senior notes due 2014, in
each case, issued by NTL Cable.


 


“Existing Loans” means the loans granted by
members of the Bank Group existing as at the date of this Agreement, details of
which are set out in Part 2 of Schedule 10 (Existing
Loans).


 


“Existing NTL Senior Credit Facilities Agreement”
means that certain senior credit facility dated 13 April 2004 made between
NTL Incorporated as Ultimate Parent, NTL Investment Holdings Limited as
Borrower, Credit Suisse First Boston, Deutsche Bank AG London, Goldman Sachs
International, Morgan Stanley Dean Witter Bank Limited and others as Mandated
Lead Arrangers, Credit Suisse First Boston as Facility Agent and Security
Agent, GE Capital Structured Finance Group Limited as Administrative Agent and
the financial and other institutions named therein as Lenders (each as defined
therein).


 


“Existing Performance Bonds” means each of
the performance bonds or similar obligations issued by members of the Bank
Group existing as at the date of this Agreement, details of which are set out
in Part 4 of Schedule 10 (Existing
Performance Bonds).


 


“Existing Telewest Second Lien Credit Facility
Agreement” means that certain second lien facility agreement dated
21 December 2004 made between Telewest UK Limited, Telewest Communications
Network Limited, Telewest Global France LLC, Barclays Capital, BNP Paribas,
Citigroup Global Markets Limited, Credit Suisse First Boston, Deutsche Bank AG
London and others as Mandated Lead Arrangers, Barclays Bank PLC as Facility
Agent and Security Trustee, Barclays Bank PLC as US Paying Agent, the Original
Guarantors and the financial and other institutions named therein as Lenders
(each as defined therein).


 


“Existing Telewest Senior Credit Facilities Agreement”
means that certain senior credit facility dated 21 December 2004 made
between the Borrower, Barclays Capital, BNP Paribas, Citigroup Global Markets
Limited, Credit Suisse First Boston, Deutsche Bank AG London and others as
Mandated Lead Arrangers, Barclays Bank PLC as Facility Agent and Security
Trustee, Barclays Bank PLC as US Paying Agent, GE Capital Structured Finance
Group Limited as Administrative Agent, the Original Guarantors and the
financial and other institutions named therein as Lenders (each as defined
therein).


 


“Existing UKTV Group Loan Stock” means the
loan stock and redeemable preference shares issued by members of the UKTV Group,
details of which are set out in Part 5 of Schedule 10 (Existing UKTV Group Loan Stock).


 


“Existing Vendor Financing Arrangements”
means each of the existing finance leases and vendor financing arrangements
existing as at the date of the Agreement, details of which are set out in Part 7
of Schedule 10 (Existing Vendor
Financing Arrangements).


 


“Expiry Date” means, in relation to any
Documentary Credit granted under this Agreement, the date stated in it to be
its expiry date or the latest date on which demand may be made under it being a
date falling on or prior to the Final Maturity Date in respect of the Revolving
Facility.


 


23

















 


“Facilities” means the A Facility, the A1
Facility, the B1 Facility, the Revolving Facility, any Ancillary Facility and
any Documentary Credit granted to the Borrowers under this Agreement, and “Facility” means any of them, as the context
may require.


 


“Facility Agent’s Spot Rate of Exchange”
means, in relation to 2 currencies, the Facility Agent’s spot rate of exchange
for the purchase of the first-mentioned currency with the second-mentioned
currency in the London foreign exchange market at or about 11 a.m. on a
particular day.


 


“Facility Office” means the office notified
by a Lender to the Facility Agent in writing on or before the date it becomes a
Lender or, following that date, (i) by not less than five Business Days’
written notice as the office through which it will perform its obligations
under this Agreement where the office is situated in Financial Action Task
Force countries, or (ii) with the prior written consent of the Facility
Agent, an office through which it will perform its obligations under this
Agreement situated in non-Financial Action Task Force countries.


 


“Fees Letters” means the fees letters
referred to in Clauses 16.2 (Arrangement and
Underwriting Fee), 16.3 (Agency Fee) and
16.5 (L/C Bank Fee).


 


“Final Maturity Date” means:


 


(a)           in
respect of the Revolving Facility, the date falling 60 months after the Merger
Closing Date;


 


(b)           in
respect of the A Facility and the A1 Facility, the date falling 60 months after
the Merger Closing Date; and


 


(c)           in respect of the B1 Facility, the date falling 78
months after the Merger Closing Date.


 


“Finance Documents” means: 


 


(a)           this
Agreement, any Documentary Credit, any Accession Notices and any Transfer
Deeds;


 


(b)           the
Fees Letters;


 


(c)           any
Ancillary Facility Documents;


 


(d)           the
Security Documents;


 


(e)           the Security Trust Agreement;


 


(f)            the
Group Intercreditor Agreement;


 


(g)           the HYD
Intercreditor Agreement;


 


(h)           the Barclays Intercreditor Agreement;


 


(i)            the
Hedging Agreements entered into pursuant to Clause 24.9 (Hedging);


 


(j)            any
other agreement or document entered into or executed by a member of the Bank
Group pursuant to any of the foregoing documents; and


 


(k)           any
other agreement or document designated a “Finance
Document” in writing by the Facility Agent and the Company.


 


“Finance Lease” means a lease treated as a capital or finance
lease pursuant to GAAP.


 


“Finance Parties” means the Agents, the
Arrangers, the Bookrunners, the Security Trustee, the 


 


24

















 


Lenders and each
Hedge Counterparty and “Finance Party”
means any of them.


 


“Financial Action Task Force” means the Financial
Action Task Force on Money Laundering, an inter-governmental body, the purpose
of which is the development and promotion of policies, at both national and
international levels, to combat money laundering.


 


“Financial Indebtedness” means, without double
counting, any Indebtedness for or in respect of:


 


(a)           moneys
borrowed;


 


(b)           any
amount raised by acceptance under any acceptance credit facility;


 


(c)           any
amount raised pursuant to any note purchase facility or the issue of bonds,
notes, debentures, loan stock or any similar instrument (for the avoidance of
doubt excluding any loan notes or similar instruments issued solely by way of
consideration for the acquisition of assets in order to defer capital gains or
equivalent taxes where such loan notes or similar instruments are not issued
for the purpose of raising finance);


 


(d)           the
principal portion of any liability in respect of any Finance Lease;


 


(e)           receivables
sold or discounted (other than any receivables to the extent they are sold on a
non-recourse basis);


 


(f)            the
amount of any liability in respect of any purchase price for assets or services
the payment of which is deferred for a period in excess of 150 days in order to
raise finance or to finance the acquisition of those assets or services;


 


(g)           any
amount raised under any other transaction (including any forward sale or
purchase agreement) required to be accounted for as indebtedness in accordance
with GAAP;


 


(h)           any
derivative transaction entered into in connection with protection against or
benefit from fluctuation in any rate or price (and, when calculating the value
of any derivative transaction, only the marked to market value shall be taken
into account, provided that for the purposes of Clause 27.5 (Cross Default), only the net amount not paid or which is
payable by the relevant member of the Group shall be included);


 


(i)            any
amount raised pursuant to any issue of shares which are expressed to be
redeemable in cash (other than redeemable shares in respect of which the
redemption is prohibited until after repayment in full of all Outstandings
under the Facilities);


 


(j)            any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by a
bank or financial or other institution; or


 


(k)           the
amount of any liability in respect of any guarantee or indemnity for the
Financial Indebtedness of another person referred to in paragraphs (a) to
(j) above.


 


“Financial Officer” means the Chief
Financial Officer, the Deputy Chief Financial Officer, the Vice President –
Finance, the Controller or the Group Treasurer, in each case, of the Company or
of the Group, or any similar officer of the Company or of the Group.


 


“Financial Quarter” has the meaning ascribed
to it in Clause 23.1 (Financial Definitions).


 


“Financial Support Direction” means a
financial support direction issued by the Pensions Regulator under Section 43
of the Pensions Act 2004.


 


25

















 


“Fitch” means Fitch Ratings or any successor thereof.


 


“Foreign Pension Plan” means any plan, fund
(including, without limitation, any superannuation fund) or other similar
program established or maintained outside the United States of America by any
member of the Group for the benefit of employees of any member of the Group
residing outside the United States of America, which plan, fund or other
similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination
of employment, and which plan is not subject to ERISA or the Code.


 


“Funded Excluded Subsidiary” means, in
respect of a Funding Passthrough, a Bank Group Excluded Subsidiary or any
person in which a member of the Bank Group owns an interest but which is not a
member of the Bank Group which:


 


(a)           indirectly
receives funding from a Bank Holdco; and/or


 


(b)           by way
of dividend or other distribution, loan or payment of interest on or the
repayment of the principal amount of any indebtedness owed by it, directly or
indirectly, makes a payment to a Bank Holdco.


 


“Funding Passthrough” means a series of
transactions between a Bank Holdco, one or more members of the Bank Group and a
Funded Excluded Subsidiary where:


 


(a)           in the case of
funding being provided by a Bank Holdco to the Funded Excluded Subsidiary, that
funding is:


 


(i)            first made
available by the Bank Holdco to (in the case of the Parent) the Company or, one
of its Subsidiaries (other than in the case of NTL Communications Limited, the
Parent or any of its Subsidiaries) by way of the subscription for new
securities, capital contribution or Subordinated Funding;


 


(ii)           secondly (if relevant) made available by the recipient
of the Funding Passthrough under (i) above, to a member of the Bank Group
(other than the Company) which may be followed by one or more transactions
between members of the Bank Group (other than the Company) and finally made
available by a member of the Bank Group (other than the Company) to the Funded
Excluded Subsidiary in all such cases by way of either the subscription for new
securities, the advancing of loans or capital contribution; or


 


(b)           in the case of a
payment to be made by the Funded Excluded Subsidiary to a Bank Holdco that
payment is:


 


(i)            first made by the
Funded Excluded Subsidiary to a member of the Bank Group, and thereafter is
made between members of the Bank Group (as relevant), by way of dividend or
other distribution, loan or payment of interest on or the repayment of the
principal amount of any indebtedness owed by such Funded Excluded Subsidiary or
relevant member of the Bank Group; and


 


(ii)           finally made by the Company to the Parent or by one of
the Subsidiaries of NTL Communications Limited (other than the Parent or any of
its Subsidiaries) to NTL Communications Limited by way of dividend or other
distribution, loan or the payment of interest on or the repayment of the
principal amount of any loan made by way of Subordinated Funding.


 


“GAAP” means accounting principles generally accepted in the
United States of America.


 


26

















 


“Group” means:


 


(a)           for
the purposes of Clause 22.1 (Financial Statements),
Clause 22.3 (Budget) and Clause 23 (Financial Condition) and any other provisions in this
Agreement using the terms defined in Clause 23 (Financial Condition):


 


(i)            the
Ultimate Parent and its Subsidiaries from time to time; 


 


(ii)           NTL South Herts, for so long as a member
of the Group is the general partner of South Hertfordshire United Kingdom Fund,
Ltd. or if it becomes a wholly-owned Subsidiary of the Group; and


 


(b)           for
all other purposes, the Ultimate Parent and its Subsidiaries from time to time.


 


Group
Business” means the provision of broadband and communications
services, including:


 


(a)           residential
telephone, mobile telephone, cable television and Internet services, including
wholesale Internet access solutions to Internet service providers;


 


(b)           data, voice and
Internet services to large businesses, public sector organisations and small
and medium sized enterprises;


 


(c)           national
and international communications transport services to communications
companies; and


 


(d)           the provision of
Content,


 


and any related
ancillary or complementary business to any of the services described above in
the United  Kingdom, the Isle of Man, the
Republic of Ireland and the Channel Islands provided that “Group Business” may
include the provision of any such services outside the United Kingdom, the Isle
of Man, the Republic of Ireland and the Channel Islands which constitute a non-material
part of the Group Business and which are acquired pursuant to an acquisition
permitted under the terms of this Agreement.


 


“Group Intercreditor Agreement” means the
intercreditor agreement dated on or about the Merger Closing Date between, among
others, certain of the Obligors, other members of the Group and the Finance
Parties.


 


“Group Structure Chart” means:


 


(a)           as at the date of
this Agreement, the group structure charts relating to the Telewest Group and
the NTL Group, in each case, as constituted immediately prior to the Merger
Closing Date, which have been delivered to the Facility Agent prior to the date
hereof; and


 


(b)           thereafter, the
group structure charts delivered to the Facility Agent pursuant to paragraph 2
of Part 5 of Schedule 4 (Vanilla Conditions
Subsequent Documents) and paragraph 2 of Part 6 of Schedule 4
(Baseball Conditions Subsequent Documents)
or any updated group structure chart which is delivered to the Facility Agent
pursuant to Clause 24.14 (Group Structure Chart)
from time to time.


 


“Guaranteed Parent Debt” has the meaning given to such term
in paragraph (h) of Clause 25.4 (Financial Indebtedness).


 


27

















 


“Guarantors” means:


 


(a)           for the purposes of
Clause 29 (Guarantee and Indemnity),
the Parent, the Original Guarantors and any Acceding Guarantors; and


 


(b)           for
the purposes of any other provision of the Finance Documents, the Original
Guarantors and any Acceding Guarantors;


 


and “Guarantor” means any one of them as the
context requires, provided that in either case, such person has not been
released from its rights and obligations as a Guarantor hereunder pursuant to
Clause 43.7 (Release of Guarantees or
Security).


 


“Hazardous Substance” means any waste,
pollutant, contaminant or other substance (including any liquid, solid, gas,
ion, living organism or noise) that may be harmful to human health or other
life or the Environment.


 


“Hedge Counterparty” means each Lender or
Affiliate of a Lender which is a party to a Hedging Agreement entered into for
the purposes of Clause 24.9 (Hedging) and “Hedge Counterparties” means all such
Lenders or Affiliates.


 


“Hedging Agreement” means any agreement in
respect of an interest rate swap, currency swap, forward foreign exchange
transaction, cap, floor, collar or option transaction or any other treasury
transaction or any combination of it or any other transaction entered into in
connection with protection against or benefit from fluctuation in any rate or
price.


 


“High Yield Refinancing” means any Financial
Indebtedness incurred for the purposes of refinancing all or a portion of the
Existing High Yield Notes and/or the NTL High Yield Notes including any
Financial Indebtedness incurred for the purpose of the payment of all
principal, interest, fees, expenses, commissions, make-whole and any other
contractual premium payable under the Existing High Yield Notes and/or the NTL
High Yield Notes, as the case may be, being refinanced and any reasonable fees,
costs and expenses incurred in connection with such refinancing, in respect of
which the following terms apply:


 


(a)           the final maturity
date or redemption date of such refinancing occurs on or after the scheduled
redemption date in respect of the high yield notes being refinanced;


 


(b)           the average life of
the High Yield Refinancing is not less than (or in respect of a refinancing in
part, is equal to) the remaining average life of the high yield notes which are
being refinanced, as at the time of such refinancing; and


 


(c)           the
Financial Indebtedness constituted by any High Yield Refinancing is
structurally subordinated to the Facilities on a basis no less favourable to
the Facilities than the basis on which the Existing High Yield Notes and/or the
NTL High Yield Notes, as the case may be, are subordinated to the Facilities.


 


“Holding Company” of a company means a
company of which the first-mentioned company is a Subsidiary.


 


“HYD Intercreditor Agreement” means the
intercreditor agreement dated 13 April 2004 between certain of the
Obligors, the Finance Parties and the indenture trustee in respect of the
Existing High Yield Notes as the same may otherwise be amended, supplemented,
novated or restated from time to time.


 


28

















 


“Increased Cost” means:


 


(a)           any
reduction in the rate of return from a Facility or on a Finance Party’s (or an
Affiliate’s) overall capital;


 


(b)           any
additional or increased cost; or


 


(c)           any
reduction of any amount due and payable under any Finance Document,


 


which is incurred
or suffered by a Finance Party or any of its Affiliates to the extent that it
is attributable to that Finance Party having agreed to make available its
Commitment or having funded or performed its obligations under any Finance
Document.


 


“Indebtedness” means any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent (including interest and other
charges relating to it).


 


“Indemnifying Lender” has the meaning set
out in Clause 5.1(b) (Issue of Documentary
Credits).


 


“Information Memoranda” means the Initial Information
Memorandum and the Subsequent Information Memorandum.


 


“Initial Information Memorandum” means the
information memorandum dated October 2005 approved by the Company
concerning the Obligors which, at the request of the Company and on its behalf,
was prepared in relation to the Facilities and the business, assets, financial
condition and prospects of the Group and which has been made available by the
Mandated Lead Arrangers to selected banks and other institutions for the
purpose of syndicating the Facilities, as supplemented by the proxy statement
dated 31 January 2006 and delivered in connection with the Merger and the
Forms 10-K of the Ultimate Parent and NTL dated 28 February 2006.


 


“Initial Security Documents” means the
security documents listed in Part 4 of Schedule 4 (Vanilla Initial Security Documents).


 


“Instructing Group” means:


 


(a)           before
any Utilisation of the Facilities under this Agreement, a Lender or group of
Lenders whose Available Commitments amount in aggregate to more than 66 2/3% of
the Available Facilities; and


 


(b)           thereafter,
a Lender or group of Lenders to whom in aggregate more than 66 2/3% of the
aggregate amount of the Outstandings are (or if there are no Outstandings at
such time, immediately prior to their repayment, were then) owed,


 


in each case,
calculated in accordance with the provisions of Clause 43.9 (Calculation of Consents).


 


“Intellectual Property Rights” means any
patent, trade mark, service mark, registered design, trade name or copyright or
any license to use any of the same.


 


“Interest” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


“Interest
Cover Ratio” has the meaning given to such term in paragraph (b) of
Clause 23.2 (Ratio).


 


“Interest Period” means, save as otherwise
provided in this Agreement, any of those periods mentioned in Clause 14.1 (Interest Periods for Term Facility Advances).


 


29

















 


“Intra-Group Services” means:


 


(a)           the sale of
programming or other Content by any member(s) of the Group to one or more
members of the Bank Group on arms’ length terms;


 


(b)           the lease or
sublease of office space, other premises or equipment on arms’ length terms by one
or more members of the Bank Group to one or more members of the Group or by one
or more members of the Group to one or more members of the Bank Group;


 


(c)           the provision or
receipt of other services, facilities or other arrangements (in each case not constituting
Financial Indebtedness) in the ordinary course of business, by or from one or
more members of the Bank Group to or from one or more members of the Group
including, without limitation, (i) the employment of personnel, (ii) provision
of employee healthcare or other benefits, (iii) acting as agent to buy
equipment, other assets or services or to trade with residential or business
customers, and (iv) the provision of audit, accounting, banking, IT,
telephony, office, administrative, compliance, payroll or other similar
services provided that the consideration for the provision thereof is, in the
reasonable opinion of the Company, no less than Cost; and


 


(d)           the extension, in
the ordinary course of business and on terms no less favourable to the relevant
member of the Bank Group than arms’ length terms, by or to any member of the
Bank Group to or by any such member of the Group of trade credit not
constituting Financial Indebtedness in relation to the provision or receipt of
Intra-Group Services referred to in paragraphs (a), (b) or  (c) above.


 


“IRS Ruling”
means the private ruling from the US Internal Revenue Service being sought by
NTL the effect of which is to permit the cash portion of the purchase price for
the Merger to be financed through borrowings by members of the Group
incorporated in England & Wales without giving rise to materially
adverse US tax consequences to NTL, the Ultimate Parent or their respective
shareholders whether prior to or following the Merger.


 


“Joint Venture” means any joint venture,
partnership or similar arrangement between any member of the Bank Group and any
other person that is not a member of the Bank Group.


 


“Joint Venture Group” means any Joint
Venture and its subsidiaries from time to time (including upon and following
the Merger Closing Date, the UKTV Group).


 


“Law” means:


 


(a)           common
or customary law;


 


(b)           any
constitution, decree, judgment, legislation, order, ordinance, regulation,
statute, treaty or other legislative measure in any jurisdiction; and


 


(c)           any directive,
regulation, practice, requirement which has the force of law and which is
issued by any governmental body, agency or department or any central bank or
other fiscal, monetary, regulatory, self-regulatory or other authority or
agency.


 


“L/C Bank” means the Original L/C Bank and
any other Lender which has been appointed as an L/C Bank in accordance with
Clause 5.11 (Appointment and Change of L/C Bank)
and which has not resigned in accordance with paragraph (c) of Clause 5.11
(Appointment and Change of L/C Bank).


 


“L/C Bank Accession Certificate” means a
duly completed accession certificate in the form set out in Schedule 11 (Form of L/C Bank Accession Certificate).


 


30

















 


“L/C Proportion” means, in relation to a
Lender in respect of any Documentary Credit and save as otherwise provided in
this Agreement, the proportion (expressed as a percentage) borne by such Lender’s
Available Revolving Facility Commitment to the Available Revolving Facility
immediately prior to the issue of such Documentary Credit.


 


“Legal Opinions” means any of the legal
opinions referred to in paragraph 5 of Part 1 to Schedule 4 (Conditions Precedent to First Utilisation),
paragraph 6 of Part 2 to Schedule 4 (Conditions
Precedent to First Baseball Utilisation) and paragraph 2 of Part 2
to Schedule 7 (Accession Documents)
required to be delivered pursuant to Clause 3.1 (Vanilla
Conditions Precedent), Clause 3.2 (Baseball
Conditions Precedent) and Clause 26 (Acceding Group Companies), respectively.


 


“Lender” means a person (including each L/C Bank and each
Ancillary Facility Lender) which:


 


(a)           is
named in Part 1 of Schedule 1 (Lenders and Commitments);
or


 


(b)           has
become a party to this Agreement in accordance with the provisions of Clause 37
(Assignments and Transfers),


 


which in each case
has not ceased to be a party to this Agreement in accordance with the terms of
this Agreement.


 


“Leverage Ratio” has the meaning given to such term in
paragraph (a) of Clause 23.2 (Ratios).


 


“LIBOR” means, in relation to any amount to
be advanced to or owed by an Obligor under this Agreement in a currency (other
than euro) on which interest for a given period is to accrue:


 


(a)           the
rate per annum which appears on the Relevant Page for such period at or
about 11.00 am on the Quotation Date for such period; or


 


(b)           if no
such rate is displayed and the Facility Agent shall not have selected an
alternative service on which such rate is displayed as contemplated by the
definition of “Relevant Page”, the arithmetic mean (rounded upwards, if not
already such a multiple, to the nearest 5 decimal places) of the rates (as
notified to the Facility Agent) at which each of the Reference Banks was
offering to prime banks in the London interbank market deposits in the relevant
currency for such period at or about 11.00 am on the Quotation Date for such
period.


 


“Major Event of Default” means an Event of
Default arising under any of the following provisions:


 


(a)           Clause 27.1 (Non-Payment);


 


(b)           Clause 27.2 (Covenants);


 


(c)           Clause 27.5 (Cross-Default);


 


(d)           Clause 27.6 (Insolvency);


 


(e)           Clause 27.7 (Winding-Up);


 


(f)            Clause 27.8 (Execution or Distress);


 


(g)           Clause 27.9 (Similar Events);


 


(h)           Clause 27.10 (Repudiation);


 


(i)            Clause 27.11 (Illegality);


 


31

















 


(j)            Clause 27.12 (Intercreditor Default); and 


 


(k)           Clause 27.14 (Material Adverse Effect).


 


“Margin Stock” shall have the meaning provided in Regulation
U.


 


“Marketable Securities” means any security
which is listed on any publicly recognised stock exchange and which has, or is
issued by a company which has, a capitalisation of not less than £1 billion (or
its equivalent in other currencies) as at the time such Marketable Securities
are acquired by any member of the Bank Group by way of consideration for any
disposal permitted under Clause 25.6 (Disposals).


 


“Material Adverse Effect” means a material
adverse change in:


 


(a)           the
financial condition, assets or business of the Obligors (taken as a whole); or


 


(b)           the
ability of any Obligor to perform and comply with its payment or other material
obligations under any Finance Document (taking into account the resources
available to such Obligor from any other member of the Bank Group).


 


“Material Subsidiary” means, at any time, a
member of the Bank Group whose contribution to Consolidated Operating Cashflow
(on a consolidated basis if it has Subsidiaries) represents at least 5% of the
Consolidated Operating Cashflow calculated by reference to the most recent
financial statements of the Bank Group delivered pursuant to paragraph (b)(ii) of
Clause 22.1 (Financial Statements).


 


“Maturing Advance” has the meaning ascribed
to it in Clause 8.2 (Rollover Advances).


 


“Member State” means a member of the
European Community.


 


“Merger” means the merger of NTL with Merger
Sub pursuant to the terms and conditions of the Merger Agreement and the
reorganization, recapitalization and refinancing of the Group in connection
therewith in accordance with the Steps Paper.


 


“Merger Agreement” means the agreement and
plan of merger dated as of 2 October 2005 (as amended and restated on 14 December 2005
and 30 January 2006) made between NTL, the Ultimate Parent and the Merger
Sub.


 


“Merger  Closing Date”
means the date on which the Merger is completed in accordance with, and subject
to the terms and conditions of the Merger Agreement.


 


“Merger Documents” means the Merger Agreement (including the
Company Disclosure Schedule and the Parent Disclosure Schedule, each as
defined therein, and attached thereto), and all other documents and agreements
executed or to be executed pursuant to (or in connection with) the Merger
Agreement and any other document designated as a “Merger Document” by the
Facility Agent and the Ultimate Parent.


 


“Merger Indebtedness” means Financial
Indebtedness by the Ultimate Parent (or a newly incorporated wholly-owned
subsidiary of the Ultimate Parent) in an amount not exceeding the equity value
of the Telewest Group provided that
the proceeds of such Financial Indebtedness shall be contributed by the
Ultimate Parent (or the newly incorporated wholly-owned subsidiary of the
Ultimate Parent, as applicable) to one or more of its Subsidiaries for the
purpose of enabling such Subsidiaries to purchase the historical Telewest
business as part of an internal reorganisation of subsidiaries of Telewest in
accordance with the Steps Paper and provided
further that such Financial Indebtedness will be repaid by the
Ultimate Parent (or such newly incorporated wholly owned 


 


32

















 


subsidiary of the
Ultimate Parent) on the same day on which it is incurred.


 


“Merger Sub” means Neptune Bridge Borrower,
LLC, a Delaware limited liability company, which has been established for the
purposes of the Merger in accordance with the terms and conditions of the
Merger Agreement.


 


“Moody’s” means Moody’s Investor Services, Inc.
or any successor thereof.


 


“Multiemployer Plan” shall mean any
multiemployer plan as defined in Section 4001(a)(3) of ERISA, which
is maintained or contributed to by (or to which there is an obligation to
contribute of) any member of the Group or an ERISA Affiliate, and each such
plan for the five year period immediately following the latest date on which
any member of the Group or an ERISA Affiliate maintained, contributed to or had
an obligation to contribute to such plan.


 


“Necessary Authorisations” means all
Authorisations (including Environmental Licences and any Authorisations issued
pursuant to or any deemed Authorisations under any Statutory Requirements) of
any person including any government or other regulatory authority required by
applicable Law to enable it to:


 


(a)           lawfully
enter into and perform its obligations under the Finance Documents to which it
is party;


 


(b)           ensure
the legality, validity, enforceability or admissibility in evidence in England
and, if different, its jurisdiction of incorporation or establishment, of such
Finance Documents to which it is party; and


 


(c)           carry
on its business from time to time.


 


“Net Proceeds” means:


 


(a)           any
cash proceeds received by any member of the Bank Group (including, when
received, any cash proceeds received by way of deferred instalment of purchase
price or from the sale of Cash Equivalent Investments or Marketable Securities
acquired by any member of the Bank Group in consideration for any Disposal as
contemplated under Clause 25.6 (Disposals))
in connection with any Disposal after deducting:


 


(i)            all
taxes paid or reasonably estimated by such member of the Bank Group to be
payable by any member of the Bank Group as a result of that Disposal; 


 


(ii)           all
reasonable fees, commissions costs and expenses incurred by such member of the
Bank Group in arranging or effecting that Disposal, including, without
limitation, any amount required to be paid by any member of the Bank Group to
any proprietor of any intellectual property rights (not being a member of the
Bank Group) (including intellectual property licences) related to the assets
disposed of where such payment is on arms’ length terms and is required to enable
such intellectual property rights to be transferred with such assets to the
extent necessary to facilitate the applicable Disposal;


 


(iii)         in the case of a Disposal effected by a member of
the Bank Group other than a Borrower, such provision as is reasonable for all
costs and taxes (after taking into account all available credits, deductions
and allowances) incurred by the Bank Group to a person other than a member of
the Bank Group and fairly attributable to up-streaming the cash proceeds to a
Borrower or making any distribution in connection with such proceeds to enable
them to reach a Borrower;


 


33

















 


(iv)          any cash proceeds
which are to be applied towards discharging any Encumbrance over such asset;
and


 


(v)            in the
case of a Disposal of a non-wholly-owned Subsidiary or Joint Venture, to the
extent received by any member of the Bank Group, any cash proceeds attributable
to any interest in such Subsidiary or Joint Venture owned by any person other
than a member of the Bank Group; and


 


(b)           the
cash proceeds received by any member of the Bank Group of any claim for loss or
destruction of or damage to the property of a member of the Bank Group under
any insurance policy after deducting any such proceeds relating to the third
party claims which are applied towards meeting such claims and any reasonable
costs incurred in recovering the same.


 


“New Equity” means a subscription for capital stock of the
Ultimate Parent or any other form of equity contribution to the Ultimate Parent
previously agreed by the Facility Agent (acting reasonably) in writing, in each
case, where such subscription or contribution does not result in a Change of
Control.


 


“New UK” means a company to be newly incorporated in England &
Wales for the purpose of acting as the company identified as such in the Steps
Paper.


 


“New UK2” means a company to be newly incorporated in England &
Wales for the purpose of acting as the company identified as such in the Steps
Paper.


 


“Non-Bank Group Serviceable Debt” means:


 


(a)           Financial
Indebtedness arising under the Bridge Facility Agreement or the Alternative
Bridge Facility (or the Exchange Notes, as applicable) or the NTL High Yield
Notes, the Existing High Yield Notes or any High Yield Refinancing; 


 


(b)           Financial Indebtedness arising under any Guaranteed
Parent Debt; and


 


(c)           any
other Financial Indebtedness which is raised by any member of the Group which
is not a member of the Bank Group, (i) where the Company has provided not
less than 5 Business Days’ prior written notice to the Facility Agent
designating such Financial Indebtedness as Non-Bank Group Serviceable Debt, and
(ii) the proceeds of which are contributed into the Bank Group in
accordance with the provisions of Clause 24.15 (Contributions to the Bank Group), 


 


in the case of
paragraph (c), to the extent only of the principal amounts so designated at the
relevant time and provided that any Non-Bank Group Serviceable Debt shall
thereafter at all times remain Non-Bank Group Serviceable Debt. 


 


“Non-Bank Group UK Taxpayer” means any company that is (a) a
Subsidiary of the Ultimate Parent, (b) within the charge to UK corporation
tax, and (c) not a member of the Bank Group.


 


“Non-Consenting Lender”
is a Lender which does not agree to a consent to an amendment to, or a waiver
of, any provision of the Finance Documents where:


 


(a)           the Company or the Facility Agent has
requested the Lenders to consent to an amendment to, or waiver, of any
provision of the Finance Documents;


 


(b)           the consent or amendment in question
requires the agreement of all Lenders;


 


(c)           Lenders representing not less than 80% of
the Commitments or Outstandings, as the case may 


 


34

















 


be,
have agreed to such consent or amendment; and


 


(d)           the Company has notified the Lender it
will treat it as a Non-Consenting Lender.


 


“Non-Funding Lender”
is either:


 


(a)           a Lender which fails to comply with its
obligation to participate in any Advance where:


 


(i)            all conditions to the relevant
Utilisation (including without limitation, delivery of a Utilisation Request)
have been satisfied or waived by an Instructing Group (or with respect to the
A1 Facility and the B1 Facility, a Baseball Instructing Group) in accordance
with the terms of this Agreement;


 


(ii)           Lenders representing not less than 80% of
the relevant Commitments have agreed to comply with their obligations to
participate in such Advance; and


 


(iii)         the Company has notified the Lender that
it will treat it as a Non-Funding Lender; or


 


(b)           a Lender which has given notice to a
Borrower or the Facility Agent that it will not make, or it has disaffirmed or
repudiated any obligation to participate in, an Advance.


 


“Notes” means
the Short Term Notes or the Eurobond as applicable.


 


“Notes Engagement Letter”
means the letter dated 3 March 2006 from the Bookrunners to NTL and the
Company in relation to the commitment of the Bookrunners to arrange and
underwrite the NTL High Yield Notes.


 


“NTL” means NTL
Incorporated, a Delaware corporation, whose registered office is at 1209 Orange
Street, Wilmington, Delaware 19801, United States of America.


 


“NTL Group” means NTL and
its Subsidiaries from time to time.  For
information purposes only, the members of the NTL Group as at the date of this
Agreement are listed in Part 3 of Schedule 9 (Members of
the NTL Group).


 


“NTL High Yield Notes”
means:


 


(a)           prior to the delivery of a Structure
Notice the high yield notes to be issued by NTL pursuant to the NTL High Yield
Offering, the proceeds of which are to be applied in refinancing all amounts
outstanding under the Bridge Facility Agreement or the Alternative Bridge
Facility Agreement (as the case may be) and costs and expenses in relation
thereto; or


 


(b)           after
the delivery of a Structure Notice, the high yield notes to be issued by NTL
Cable pursuant to the NTL High Yield Offering, the proceeds of which, through
the steps outlined in the Steps Paper, are to be applied to refinance all
amounts outstanding under the Bridge Facility Agreement or the Alternative
Bridge Facility Agreement (as the case may be) 
and costs and expenses in relation thereto.  


 


“NTL High Yield Offering”
means the offering of the NTL High Yield Notes by NTL or NTL Cable on a shelf
registration statement filed with the SEC (or, if a shelf registration is not
available, pursuant to an exemption from registration under the United States
Securities Act of 1933 including pursuant to Rule 144A and/or Regulation S
of the United States Securities Act of 1933, with SEC registration rights)
(excluding the issuance of the Exchange Notes).


 


35

















 


“NTL South Herts” means NTL (South
Hertfordshire) Limited (formerly known as Cable & Wireless
Communications (South Hertfordshire) Limited), a company incorporated in England &
Wales with registered number 2401044.


 


“Obligors” means the Borrowers and the
Guarantors and “Obligor” means any
of them.


 


“Obligors’ Agent” means the Company in its
capacity as agent for the Parent and the Obligors (other than the US Borrower),
pursuant to Clause 30.18 (Obligors’ Agent).


 


“Optional Currency” means, in relation to
any Advance, any currency other than euro, Dollars and Sterling which:


 


(a)           is
readily available to banks in the London interbank market, and is freely
convertible into Sterling on the Quotation Date and the Utilisation Date for
the relevant Advance; and


 


(b)           has
been approved by the Facility Agent (acting on the instructions of all the
Lenders) on or prior to receipt by the Facility Agent of the relevant
Utilisation Request.


 


“Original Financial Statements” means:


 


(a)           in relation to NTL
the audited consolidated financial statements of the NTL Group for the
financial year ended 31 December 2005; and 


 


(b)           in relation to the
Ultimate Parent, the audited consolidated financial statements of the Telewest
Group for the financial year ended 31 December 2005.


 


“Original Guarantor” means each of the
companies and partnerships listed in Part 1 of Schedule 2 (The  Original Guarantors),
which in each case has not ceased to be a party to this Agreement in accordance
with the terms of this Agreement.


 


“Original Obligors” means the UK Borrowers, the US Borrower
and the Original Guarantors.


 


“Outstanding L/C Amount” means:


 


(a)           each
sum paid or payable by an L/C Bank to a Beneficiary pursuant to the terms of a
Documentary Credit; and


 


(b)           all
liabilities, costs (including, without limitation, any costs incurred in
funding any amount  which falls due from
an L/C Bank under a Documentary Credit), claims, losses and expenses which an
L/C Bank (or any of the Indemnifying Lenders) incurs or sustains in connection
with a Documentary Credit,


 


in each case which
has not been reimbursed or in respect of which cash cover has not been provided
by or on behalf of a relevant Borrower.


 


“Outstandings”
means, at any time, the Term Facility Outstandings, the Revolving Facility
Outstandings and any Ancillary Facility Outstandings.


 


“Parent” means:


 


(a)           NTL Cable; or


 


(b)           following
completion of the steps described in the Steps Paper and culminating in the
structure entitled “First Alternative
(Structure 1) – Final Structure” or “First
Alternative (Structure 1) – Final Structure (assumes Step 6)” and upon its accession to this Agreement as an Acceding
Guarantor, New UK2.


 


36

















 


“Parent Debt” means any Financial Indebtedness of the
Ultimate Parent or one or more of its Subsidiaries (other than a member of the
Bank Group).


 


“Parent Intercompany Debt” means any
Financial Indebtedness owed by any member of the Bank Group to the Ultimate
Parent or its Subsidiaries (other than another member of the Bank Group) from
time to time which is subordinated to the Facilities pursuant to the terms of
the Group Intercreditor Agreement.


 


“Participating Employers” means the Company
and any members of the Group which participate or have at any time participated
in a UK Pension Scheme.


 


“Participating Member State” means any
member of the European Community that at the relevant time has adopted the euro
as its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.


 


“PBGC” means the Pension Benefit Guaranty
Corporation established pursuant to section 4002 of ERISA, or any
successor to it.


 


“Pensions Regulator” means the body
corporate established under Part 1 of the Pensions Act 2004.


 


“Permitted Auditors” means any of
Pricewaterhouse Coopers, Ernst & Young, Deloitte & Touche or
KPMG or any of their respective successors or any other internationally
recognised firm of accountants.


 


“Permitted Holders” shall mean any person
who, together with any of its Affiliates, is the “beneficial owner” (as defined
in Rule 13d-3 and 13d-5 under the Exchange Act) of 5% or more of the
outstanding Voting Stock of the Ultimate Parent on the date of this Agreement
or becomes such a holder as a result of the Baseball Acquisition or the
Alternative Baseball Acquisition and any Affiliates of such persons from time
to time.


 


“Permitted Joint Ventures” means any Joint Venture permitted
under Clause 25.9 (Joint Ventures)
that the Company designates as such by giving notice in writing to the Facility
Agent.


 


“Permitted Payments” means:


 


(a)           the
payment of any dividend, payment, loan or other distribution, or the repayment
of a loan or the redemption of loan stock or redeemable equity made, at any
time, to fund the payment of expenses (including taxes and the buy back of
stock from employees) by any member of the Group the aggregate amount of such
payments being no greater than (i) £50 million (or its equivalent) for the period from the Merger
Closing Date to the first anniversary thereof, (ii) £50 million (or its
equivalent) for the period from the first anniversary of the Merger Closing
Date to the second anniversary of the Merger Closing Date, or (iii) thereafter
£35 million (or its equivalent) in each anniversary year; 


 


(b)           the payment of any
dividend, payment, loan or other distribution, or the repayment of a loan, or
the redemption of loan stock or redeemable equity, in each case, which is
required in order to facilitate the making of payments by any member of the
Group and to the extent required:


 


(i)            by the
terms of the Finance Documents; 


 


(ii)           by the
terms of the Bridge Finance Documents, the Exchange Notes, the Existing High
Yield Notes, the NTL High Yield Notes, any High Yield Refinancing (or in each
case, any guarantee of the obligations thereunder) to the extent such payment
is permitted or not prohibited by the terms of the HYD Intercreditor Agreement
or other applicable intercreditor agreement, other than any payments in
relation to any fees, 


 


37

















 


costs, expenses, commissions or other payments
required to be made in respect of any amendment, consent or waiver in respect
thereof;


 


(iii)         by the terms of any Guaranteed Parent Debt;


 


(iv)          by the
terms of any agreements for Financial Indebtedness which constitutes Non-Bank
Group Serviceable Debt falling within paragraph (c) of the definition
thereof;


 


(v)            by the
terms of any Hedging Agreement entered into by a member of the Group relating
to currency or interest rate hedging of Financial Indebtedness referred to in
sub-paragraphs (i) to (iv) above and which is not entered into for
investment or speculative purposes; 


 


(vi)          by the purposes of
implementing the steps expressly contemplated by the Steps Paper;


 


(vii)         by the
purposes of implementing any Content Transaction or Business Division
Transaction;


 


(viii)        by the
terms of the Notes;


 


(ix)          by the terms of any
Subordinated Funding to the extent required to facilitate any Permitted
Payments,


 


where, in the case of sub-paragraphs (i) to
(ix), the payment under the relevant indebtedness or obligation referred to
therein has fallen due or will fall due within five Business Days of such
Permitted Payment being made;


 


(c)           any
payment of any dividend, payment, loan or
other distribution, or the repayment of a loan, or the redemption of loan stock
or redeemable equity made to any member of the Group (other than a member of
the Bank Group), provided that:


 


(i)            an
amount equal to such payment is promptly re-invested by such member of the
Group (other than the Bank Group) into a member of the Bank Group; 


 


(ii)           the
aggregate principal amount of such payments and re-invested amounts on any day
does not exceed £50 million (or
its equivalent in other currencies); and 


 


(iii)         to the extent any
such payments are made in cash, any re-invested amounts are also made in cash;


 


(d)           any
payment of any dividend, payment, loan or
other distribution, or the repayment of a loan, or the redemption of loan stock
or redeemable equity made in order to enable payments of
dividends or distributions by the
Ultimate Parent to its shareholders or the repurchase of capital stock of the
Ultimate Parent: 


 


(i)            in an amount of up
to £10 million per annum plus, at any time after 1 January 2007, an
additional amount per annum, up to the maximum amount specified below
determined by reference to the Leverage Ratio immediately prior to the
declaration of such dividend or the making of such payment, loan or other distribution
(calculated on a pro forma basis after giving effect to such payment) in
accordance with the following table:


 


38

















 


	
  Leverage Ratio

  	
   

  	
  Maximum Amount Per

  Annum

  
	
   

  	
   

  	
   

  
	
  Greater than 3.5 x but less than or equal to 4.5 x

  	
   

  	
  £25 million

  
	
   

  	
   

  	
   

  
	
  Greater than 3.0 x but less than or equal to 3.5 x

  	
   

  	
  £50 million

  
	
   

  	
   

  	
   

  
	
  Less than or equal to 3.0 x

  	
   

  	
  No Limit

  



 


(ii)           in an amount of up
to £200 million from the cash proceeds of a Content Transaction; and 


 


(iii)         in an amount of up
to £200 million from the cash proceeds of a Business Division Transaction
provided that the Leverage Ratio immediately prior to the declaration of such
dividend or the making of such payment, loan or other distribution is less than
4.0:1,


 


in each case, provided always that no Event of
Default has occurred or is continuing or would result following such payment; 


 


(e)           any
payments made pursuant to and in accordance with the Tax Cooperation Agreement
provided that a copy of the certification or filings referred to in clause 5 of
the Tax Cooperation Agreement, as the case may be, shall have been provided to
the Facility Agent not less than five Business Days before such payment is to
be made;


 


(f)            the
payment of preference distributions in accordance with the terms and conditions
of the outstanding redeemable preference shares of Sit-up provided that the
aggregate amount of all such preference distributions paid in any financial
year shall not exceed £1,000 and any payment with respect to the purchase or redemption
by any member of the Group of all or any portion of the outstanding redeemable
preference shares of Sit-up pursuant to the terms of the Sit-up Acquisition
Documents (including any such payment as may be permitted under the articles of
association of Sit-up); or


 


(g)           any
payment of any dividend, payment, loan or other distribution, or the repayment
of a loan, or the redemption of loan stock or redeemable equity made pursuant
to an Asset Passthrough or a Funding Passthrough, in each case, funded solely
from cash generated by entities outside of the Bank Group.


 


“Plan” means any pension plan as defined in section 3(2) of
ERISA, which (i) is maintained or contributed to by (or to which there is
an obligation to contribute by) any member of the Group or an ERISA Affiliate,
and each such plan for the 5 year period immediately following the latest date
on which any member of the Group or an ERISA Affiliate maintained, contributed
to or had an obligation to contribute to such plan and (ii) is subject to
ERISA, but excluding any Multiemployer Plan.


 


“Project Company” means a Subsidiary of a
company (or a person in which such company has an interest) which has a special
purpose and whose creditors have no recourse to any member of the Bank Group in
respect of Financial Indebtedness of that Subsidiary or person, as the case may
be, or any of such Subsidiary’s or person’s Subsidiaries (other than recourse
to such member of the Bank Group who had granted an Encumbrance over its shares
or other interests in such Project Company beneficially owned by it provided
that such recourse is limited to an enforcement of such an Encumbrance).


 


39

















 


“Proportion” in relation to a Lender, means:


 


(a)           in
relation to an Advance to be made under this Agreement, the proportion borne by
such Lender’s Available Commitment in respect of the relevant Facility, the
relevant Borrower and the relevant currency to the relevant Available Facility;


 


(b)           in
relation to an Advance or Advances outstanding under this Agreement, the
proportion borne by such Lender’s share of the Sterling Amount of such Advance
or Advances to the total Sterling Amount thereof;


 


(c)           if
paragraph (a) does not apply and there are no Outstandings, the proportion
borne by the aggregate of such Lender’s Available Commitment to the Available
Facilities (or if the Available Facilities are then zero, by its Available
Commitment to the Available Facilities immediately prior to their reduction to
zero); and


 


(d)           if
paragraph (b) does not apply and there are any Outstandings, the
proportion borne by such Lender’s share of the Sterling Amount of the
Outstandings to the Sterling Amount of all the Outstandings for the time being.


 


“Protected Party” means a Finance Party or
any Affiliate of a Finance Party which is or will be, subject to any Tax
Liability in relation to any amount payable under or in relation to a Finance
Document.


 


“Qualifying UK Lender” means in relation to
a payment of interest on a participation in an Advance to a UK Borrower, a
Lender which is:


 


(a)           a UK
Bank Lender;


 


(b)           a UK
Non-Bank Lender; or


 


(c)           a UK
Treaty Lender.


 


“Quarter Date” has the meaning ascribed to
it in Clause 23.1 (Financial Definitions).


 


“Quotation Date” means, in relation to any
currency and any period for which an interest rate is to be determined:


 


(a)           if the
relevant currency is Sterling, the first day of that period;


 


(b)           if the
relevant currency is euro, 2 TARGET Days before the first day of that period;
or


 


(c)           in
relation to any other currency, 2 Business Days before the first day of that
period,


 


provided that if
market practice differs in the Relevant Interbank Market for a currency, the
Quotation Date for that currency will be determined by the Facility Agent in
accordance with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Date will be the last of those
days).


 


“Redemption Consideration” means the $16.25 cash consideration
payable in respect of each of the Ultimate Parent’s common stock that the
Ultimate Parent’s shareholders will receive in the Merger.


 


“Reference Banks” means the principal London
offices of Barclays Bank plc, Citigroup and The Bank of New York or such other
bank or banks as may be appointed as such by the Facility Agent after
consultation with the Company.


 


“Regulation T” shall mean Regulation T of the Board of
Governors of the Federal Reserve System as 


 


40

















 


from to time in
effect and any successor to all or any portion thereof.


 


“Regulation U” shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.


 


“Regulation X” shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or any portion thereof.


 


“Relevant Interbank Market” means, in
relation to euro, the European Interbank Market and in relation to any other
currency, the London interbank market therefor.


 


“Relevant Page” means the page of the
Reuters or Telerate screen on which is displayed in relation to LIBOR, BBA
LIBOR for the relevant currency, or, in relation to EURIBOR, the European
offered rates for euro, or, if such page or service shall cease to be
available, such other page or service which displays the London interbank
offered rates for the relevant currency as the Facility Agent, after
consultation with the Lenders and the Company, shall select.


 


“Relevant Tax Jurisdiction” means:


 


(a)           the
United Kingdom, in relation to a UK Borrower; 


 


(b)           the United States of America, in relation to the US
Borrower; and


 


(c)           any
jurisdiction in which any person is liable to tax by reason of its domicile,
residence, place of management or other similar criteria (but not any
jurisdiction in respect of which that person is liable to tax by reason only of
its having a source of income in that jurisdiction).


 


“Renewal Request” means, in relation to a
Documentary Credit, a Utilisation Request therefor, in respect of which the
proposed Utilisation Date stated in it is the Expiry Date of an existing
Documentary Credit and the proposed Sterling Amount is the same or less than
the Sterling Amount of that existing Documentary Credit.


 


“Repayment Date” means:


 


(a)           in
relation to any Revolving Facility Advance, the last day of its Term; 


 


(b)           in respect of the A Facility Outstandings
and the A1 Facility Outstandings, each of the dates specified in Clause 9.1 (Repayment of A Facility Outstandings and A1 Facility Outstandings)
as a Repayment Date in respect of the relevant Term Facility Outstandings, and


 


(c)           in respect of the B1 Facility
Outstandings, the relevant Final Maturity Date,


 


provided that if
any such day is not a Business Day in the relevant jurisdiction for payment,
the Repayment Date will be the next succeeding Business Day in the then current
calendar month (if there is one) or the preceding Business Day (if there is
not).


 


“Repayment Instalment” means, in respect of
the A Facility Outstandings and the A1 Facility Outstandings, the amounts
required to be paid by way of repayment on each Repayment Date, as specified in
Clause 9.1 (Repayment of A Facility Outstandings and A1
Facility Outstandings), as an A Facility Repayment Instalment or an
A1 Facility Repayment Instalment (as applicable).


 


“Repeating Representations” means the
representations and warranties set out in Clauses 21.2 (Due
Organisation), 21.5 (No Immunity),
21.6 (Governing Law and Judgments),
21.7 (All Actions Taken), 21.9 (Binding Obligations), 21.10 (No Winding
Up), 21.11 (No Event of Default),
21.18 (Execution of 


 


41






 













 


Finance
Documents), 21.27
(Investment Company Act), 21.28 (Margin Stock), 21.34 (US Patriot Act) and 21.36 (Compliance with ERISA).


 


“Reservations” means:


 


(a)           the
principle that equitable remedies are remedies which may be granted or refused
at the discretion of the court, the limitation of enforcement by laws relating
to bankruptcy, insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws generally affecting the rights of
creditors, the time barring of claims under any applicable law, the possibility
that an undertaking to assume liability for or to indemnify against non-payment
of any stamp duty or other tax may be void, defences of set-off or counterclaim
and similar principles;


 


(b)           anything
analogous to any of the matters set out in paragraph (a) above under any
laws of any applicable jurisdiction;


 


(c)           the
reservations in or anything disclosed by any of the Legal Opinions; 


 


(d)           any circumstance
arising through a failure to obtain any consent from the lenders under the
Existing Credit Facilities or the Existing Baseball Facilities to (i) the
execution of the Finance Documents, (ii) the exercise of any rights or the
performance of any obligations under the Finance Documents or (iii) any
other matter contemplated by the Finance Documents; and 


 


(e)           any
circumstance arising through a failure to obtain any consent from any lessor,
licensor or other counterparty whose consent is required to the grant of any
Security over any lease, licence or other agreement or contract on or before
the execution of a Security Document.


 


“Restricted Guarantors” means: 


 


(a)           each
of the Original Guarantors listed in Part 2 of Schedule 2 (The Restricted Guarantor);
and


 


(b)           any other Guarantor
that accedes to this Agreement pursuant to Clause 26.2 (Acceding
Guarantors), which is (i) incorporated, created or organised
under the laws of the United States of America or any State of the United
States of America (including the District of Columbia) and is a “United States
person” (as defined in Section 7701(a)(30) of the Code); or (ii) treated
for US federal income tax purposes as a disregarded entity that is a branch of
a Guarantor described in sub-paragraph (b)(i) hereof.


 


“Restricted Party” means any person listed
in the Annex to the Executive Order referred to in the definition of “Anti-Terrorism
Laws” or on the “Specially Designated Nationals and Blocked Persons” list
maintained by the Office of Foreign Assets Control of the United States
Department of the Treasury;


 


“Revolving Facility” means the revolving
loan facility (including any Ancillary Facility and the Documentary Credit
facility) granted to the relevant Borrower pursuant to Clause 2.1(d) (The Facilities).


 


“Revolving Facility Instructing Group” means:


 


(a)           before
any Utilisation of the Revolving Facility under this Agreement, a Lender or
group of Lenders whose Available Revolving Facility Commitments amount in
aggregate to more than 66 2/3% of the Available Revolving Facility; and


 


42

















 


(b)           thereafter,
a Lender or group of Lenders to whom in aggregate more than 66 2/3% of the
aggregate amount of the Revolving Facility Outstandings are (or if there are no
Revolving Facility Outstandings at such time, immediately prior to their
repayment, were then) owed,


 


in each case
calculated in accordance with the provisions of Clause 43.9 (Calculation of Consents).


 


“Revolving Facility Margin” means, in
relation to Revolving Facility Advances and subject to Clause 13.3 (Margin Ratchet for Revolving Facility Advances), 1.625% per
annum.


 


“Revolving Facility Outstandings” means, at
any time, the aggregate outstanding amount of each Revolving Facility Advance
and of each Outstanding L/C Amount.


 


“Rollover Advance” has the meaning ascribed
to it in Clause 8.2 (Rollover Advances).


 


“Screenshop” means Screenshop Limited, a company incorporated
under the laws of England and Wales with registered number 3529106.


 


“Screenshop Intra-Group Loan Agreement” means the loan
agreement dated 10 May 2005 between Screenshop and Flextech Broadband
Limited.


 


“SEC” means the United States Securities and Exchange
Commission.


 


“Security” means the Encumbrances created or
purported to be created pursuant to the Security Documents.


 


“Security Documents” means:


 


(a)           each
of the Initial Security Documents and the Subsequent Security Documents;


 


(b)           any
security documents required to be delivered by an Acceding Obligor pursuant to
Clauses 26.1 (Acceding Borrowers) and 26.2 (Acceding Guarantors);


 


(c)           any
other document executed at any time by any member of the Group conferring or
evidencing any Encumbrance for or in respect of any of the obligations of the
Obligors under this Agreement whether or not specifically required by this
Agreement; and


 


(d)           any
other document executed at any time pursuant to Clause 24.12 (Further Assurance) or any similar covenant in any of the
Security Documents referred to in paragraph (a) to (d) above.


 


“Security Trust Agreement” means that
certain security trust agreement dated on or about the Merger Closing Date made
between the Security Trustee and the Lenders and relating to the appointment of
the Security Trustee as trustee of the Security.


 


“Senior Fees Letter”
means the letter dated 3 March 2006 from the Bookrunners to NTL and the
Company in relation to the fees payable to the Bookrunners for arranging and
underwriting the Facilities.


 


“Short Term Notes”
means the notes to be issued by the Company  to the US Borrower after the first Utilisation
of the B1 Facility hereunder.


 


“Sit-up” means sit-up Limited, a company incorporated under
the laws of England and Wales with registered number 3877786 and having its
registered office at 179-181 The Vale, Acton, London  W3 7RW.


 


43

















 


“Sit-up Acquisition Documents” means each of:


 


(a)           the share purchase
deed between Screenshop and Alpine Situp LLC for the sale of 1,991,841
preference shares and 565,919 warrants to subscribe for ordinary shares in the
capital of Sit-up, dated 23 March 2005;


 


(b)           the offer document dated
on or about 10 May 2005 which describes the terms and conditions of the
recommended offer made by Screenshop to purchase the issued and to be issued
shares of Sit-up;


 


(c)           the share purchase
agreement between Screenshop, John Egan, Ashley Faull and Christopher Manson
dated on or around 10 May 2005;


 


(d)           the subscription
agreement between the Sit-up, Screenshop, Flextech Broadband Limited, John
Egan, Ashley Faull and Christopher Manson entered into on or about 10 May 2005.


 


(e)           and any other
document designated as an “Sit-up Acquisition Document” in writing to the
Facility Agent by the Company.


 


“Solvent” and “Solvency” mean,
with respect to any US Obligor on a particular date, that on such date (a) the
value of the property of such US Obligor (both at present and present fair and
present fair sales value) is greater than the total amount of liabilities,
including, without limitation, contingent and unliquidated liabilities, of such
US Obligor as such liabilities mature, (b) such person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
person’s ability to pay such debts and liabilities as they mature and (c) such
US Obligor is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such person’s property would
constitute an unreasonably small capital. 
The amount of contingent and unliquidated liabilities at any time shall
be computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“Solvent Liquidation” has the meaning given to such term in
Clause 25.20 (Solvent Liquidation).


 


“Stand Alone Baseball
Financing” means Financial Indebtedness which is incurred either:


 


(a)           following the cancellation of the A1
Facility and the B1 Facility, for the purposes set out in paragraph (b) of
Clause 2.3 (Purposes); or 


 


(b)           for the purposes of refinancing the Total
Baseball Debt, 


 


provided that in
each case:


 


(i)            the aggregate principal amount of such
Financial Indebtedness does not exceed £500 million;


 


(ii)           the annual interest expense of such
Financial Indebtedness is no greater than the interest expense payable under an
equivalent principal amount of A1 Facility or B1 Facility which is cancelled in
accordance with Clause 10.1 (Voluntary Cancellation)
or (as applicable) an equivalent principal amount of the Total Baseball Debt
being prepaid; 


 


(iii)         immediately prior to the incurrence of such
Financial Indebtedness, the Bank Group is in compliance with the financial
covenants set out in Clause 23.2 (Ratios); 


 


(iv)          no creditor in respect of such Financial
Indebtedness shall at any time have any 


 


44

















 


recourse to any member
of the Bank Group;


 


(v)            such Financial Indebtedness may benefit
from guarantees and first priority security over the assets of members of the
Baseball Group but not any member of the Bank Group;


 


(vi)          following consummation of the Stand Alone
Baseball Financing any transactions entered into between the Bank Group and the
Baseball Group shall be subject to the provisions of Clause 25.10 (Transactions with Affiliates); and


 


(vii)         any such Stand Alone Baseball Financing
is completed by 31 December 2006.


 


“Standard & Poor’s” means Standard &
Poor’s Ratings Group or any successor thereof.


 


“Statutory Requirements” means any
applicable provision or requirement of any Act of Parliament (including without
limitation, the Communications Act 2003 and the Broadcasting Acts 1990 and
1996) or any instrument, rule or order made under any Act of Parliament or
any regulation or by-law of any local or other competent authority or any
statutory undertaking or statutory company which has jurisdiction in relation
to the carrying out, use, occupation, operation of the properties or the
businesses of any member of the Bank Group carried out thereon.


 


“Sterling Amount” means at any time:


 


(a)           in
relation to an Advance denominated in Sterling, the amount thereof, and in
relation to any other Advance, the Sterling equivalent of the amount specified
in the Utilisation Request (as at the date thereof) for that Advance, in each
case, as adjusted, if necessary, in accordance with the terms of this Agreement
and to reflect any repayment, consolidation or division of that Advance;


 


(b)           in
relation to a Documentary Credit, (i) if such Documentary Credit is
denominated in Sterling, the Outstanding L/C Amount in relation to it at such
time or (ii) if such Documentary Credit is not denominated in Sterling,
the equivalent in Sterling of the Outstanding L/C Amount at such time,
calculated as at the later of (1) the date which falls 2 Business Days
before its issue date or any renewal date or (2) the date of any revaluation
pursuant to Clause 5.3 (Revaluation of Documentary
Credits);


 


(c)           in
relation to any Ancillary Facility granted by a Lender, the amount of its
Revolving Facility Commitment converted to provide its Ancillary Facility
Commitment as at the time of such conversion; and


 


(d)           in
relation to any Outstandings, the aggregate of the Sterling Amounts (calculated
in accordance with paragraphs (a), (b) and (c) above) of each
outstanding Advance and/or Outstanding L/C Amount, made under the relevant
Facility or Facilities (as the case may be) and/or in relation to Ancillary
Facility Outstandings, (i) if such Outstandings are denominated in
Sterling, the aggregate amount of it at such time and (ii) if such
Outstandings are not denominated in Sterling, the Sterling equivalent of the
aggregate amount of it at such time.


 


“Steps Paper” means the alternative papers entitled “Steps Plan: Version 1 – Combination of NTL, Telewest and Virgin Mobile
before Structures 1 and 2” and “Steps Plan: Version 2 –
Combination of NTL, Telewest and Virgin Mobile after Structures 1 and 2”,
in each case, as agreed between NTL and the Bookrunners setting out the
restructuring steps affecting the Telewest Group and NTL Group occurring prior
to, on and following the Merger Closing Date.


 


“Structure 2 Senior Facilities Agreement” means the senior
facilities agreement agreed to by the parties hereto to become effective
following implementation and completion of the restructuring steps 


 


45

















 


referred to in the
Steps  Paper as “Second
Alternative (Structure 2) – Final Structure”, the form of which is
attached to this Agreement as Annex A.


 


“Structure Notice” means the structure notice (if any) to be
delivered by NTL and the Company to the Bookrunners, in accordance with the
provisions of the Commitment Letter, pursuant to which NTL and the Company
elect to implement the restructuring steps referred to in the Steps Paper as “Post-Combination Restructuring - Second Alternative (Structure 2)”.


 


“Structuring Completion Date” means the date falling 3 months
after the Merger Closing Date. 


 


“Structuring Date”
means the date proposed in the Structure Notice on which the relevant
restructuring steps referred to in the Steps Paper as “Post-Combination
Restructuring - Second Alternative (Structure 2)” are to be
effected, which shall be a date falling no later than the Structuring
Completion Date and shall be no less than 4 Business Days after the date of the
Structure Notice.


 


“Subordinated Funding” means any loan made
to any Obligor by any member of the Group, that is not an Obligor which:


 


(a)           constitutes Parent
Intercompany Debt;


 


(b)           is an intercompany
loan arising under the arrangements referred to in paragraph (c) of the
definition of “Permitted Payments”;


 


(c)           is an
intercompany loan existing as at the date of this Agreement (including any
inter-company loan the benefit of which has, at any time after the date of this
Agreement, been assigned to any other member of the Group, where such
assignment is not otherwise prohibited by this Agreement); or


 


(d)           constitutes
Equity Equivalent Funding,


 


provided that, the
relevant debtor and creditor are party to the Group Intercreditor Agreement as
an Intergroup Debtor or Intergroup Creditor (as such terms are defined in the
Group Intercreditor Agreement), respectively, or where the relevant debtor and
creditor are party to such other subordination arrangements as may be
satisfactory to the Facility Agent, acting reasonably.


 


“Subscriber” means any person who has
entered into an agreement (which has not expired or been terminated) with an
Obligor to be provided with services by an Obligor through the operation of
telecommunications and/or television systems operated by the Bank Group in
accordance with applicable Telecommunications, Cable and Broadcasting Laws
(including any part of such system and all modifications, substitutions,
replacements, renewals and extensions made to such systems).


 


“Subsequent Information
Memorandum” means the Initial Information Memorandum updated to
reflect any changes to the terms of the Facilities made since October 2005,
the Baseball Acquisition and the business, assets, financial condition and
prospects of the Baseball Group.


 


“Subsequent Security Documents” means the
security documents listed in paragraph 4 of Part 6 of Schedule 4 (Baseball Conditions Subsequent Documents).


 


“Subsidiary” of a company shall be construed
as a reference to:


 


(a)           any
company:


 


(i)            more than 50% of
the issued share capital or membership interests of which is beneficially
owned, directly or indirectly, by the first-mentioned company; or


 


46

















 


(ii)           where
the first-mentioned company has the right or ability to control directly or
indirectly the affairs or the composition of the board of directors (or
equivalent of it) of such company; or


 


(iii)         which
is a Subsidiary of another Subsidiary of the first-mentioned company; or 


 


(b)           for
the purposes of Clause 22 (Financial
Information) and Clause 23 (Financial
Condition) and any provision of this Agreement where the financial
terms defined in Clause 23 (Financial
Condition) are used,  any
legal entity which is accounted for under applicable GAAP as a Subsidiary of
the first-mentioned company.


 


“Successful Syndication” has the meaning
given to it in the Senior Fees Letter.


 


“Syndication Date” means the date specified
by the Bookrunners (and notified to the Facility Agent and the Company) as the
day on which Successful Syndication has occurred.


 


“Takeover Code” means the City Code on Takeovers and Mergers
as administered by the Takeover Panel.


 


“Takeover Panel” means the Panel on Takeovers and Mergers.


 


“TARGET Day” means any day on which the
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system is open for the settlement of payments in euro.


 


“Tax Cooperation Agreement” means the agreement to be entered
into following the date hereof between the Ultimate Parent, the Company and TCN
relating to arrangements in connection with, amongst other things, the payment
of US taxes in form and substance agreed with the Facility Agent and the
Mandated Lead Arrangers.


 


“Tax Credit” means a credit against, relief
or remission for, or repayment of any tax.


 


“Tax Deduction” means a deduction or
withholding for or on account of tax from a payment made or to be made under a
Finance Document.


 


“Tax Losses” means any amount capable of surrender pursuant
to Chapter IV of Part X of the Taxes Act.


 


“Taxes Act” means the Income and Corporation
Taxes Act 1988.


 


“Tax Liability” has the meaning set out in
paragraph (e) of Clause 17.3 (Tax Indemnity).


 


“Tax Payment” means the increase in any
payment made by an Obligor to a Finance Party under paragraph (c) of
Clause 17.1 (Tax Gross-up) or any amount
payable under paragraph (d) of Clause 17.1 (Tax Gross-up)
or under Clause 17.3 (Tax Indemnity).


 


“TCN Group” means TCN and its Subsidiaries from time to time.


 


“Telecommunications, Cable and Broadcasting Laws”
means the Telecommunications Act 1984, the Broadcasting Act 1990 (together with
the Broadcasting Act 1996), the Communications Act 2003 and all other laws,
statutes, regulations and judgments relating to broadcasting or
telecommunications or cable television or broadcasting applicable to any member
of the Bank Group, and/or the business carried on by, any member of the Bank
Group (for the avoidance of doubt, not including laws, statutes, regulations or
judgments relating solely to consumer credit, data protection or intellectual
property).


 


“Telewest Group” means the Ultimate Parent
and its Subsidiaries from time to time. 
For information 


 


47

















 


purposes only, the
members of the Telewest Group as at the date of this Agreement and prior to the
Merger taking place, are listed in Part 2 of Schedule 9 (Members of the Telewest Group).


 


“Telewest UK” means Telewest UK Limited, a company
incorporated in England & Wales with registered number 04925679 and
having its registered office at Export House, Cawsey Way, Woking, Surrey GU21
6QX.


 


“Term” means:


 


(a)           in
relation to a Revolving Facility Advance, the period for which such Advance is
borrowed as specified in the relevant Utilisation Request; and


 


(b)           in
relation to any Documentary Credit, the period from the date of its issue until
its Expiry Date.


 


“Term Facilities”
means the A Facility, the A1 Facility and the B1 Facility and “Term Facility” means any of them, as the context requires.


 


“Term Facility Advance”
means any A Facility Advance, an A1 Facility Advance or B1 Facility Advance and
“Term Facility Advances” shall be
construed accordingly.


 


“Term Facility Outstandings”
means, at any time, the aggregate of the A Facility Outstandings, the A1
Facility Outstandings and the B1 Facility Outstandings, at such time.


 


“Termination Date” means:


 


(a)           in relation
to the Revolving Facility, the date which is 30 days prior to the Final
Maturity Date in respect of the Revolving Facility; 


 


(b)           in
relation to the A Facility, the earlier of (i) 2 October 2006 or (ii) the
Merger Closing Date; 


 


(c)           in relation to the A1 Facility and the B1 Facility,
the earlier of (i) 2 October 2006 or (ii) the date falling 15
days after the Baseball Effective Date; and


 


(d)           in
relation to each Ancillary Facility, the relevant Ancillary Facility
Termination Date.


 


“Total Baseball Debt”
means all amounts drawn under the A1 Facility and the B1 Facility by Baseball
Cash Bidco and used for any of the purposes specified in paragraph (b) of
Clause 2.3 (Purpose) (including without
limitation, any principal amounts, prepayment penalties, make-whole payments,
accrued interest and Break Costs relating thereto).


 


“Transfer Date” means, in relation to any
Transfer Deed, the effective date of such transfer as specified in such
Transfer Deed.


 


“Transfer Deed” means a duly completed deed
of transfer and accession in the form set out in Schedule 3 (Form of Deed of Transfer and Accession) which has been
executed as a deed by a Lender and a Transferee whereby such Lender seeks to
transfer to such Transferee all or a part of such Lender’s rights, benefits and
obligations under this Agreement as contemplated in Clause 37 (Assignments and Transfers) and such Transferee agrees to
accept such transfer and to be bound by this Agreement and to accede to the HYD
Intercreditor Agreement, the Group Intercreditor Agreement and the Security
Trust Agreement.


 


“Transferee” means a bank or other
institution to which a Lender seeks to transfer all or part of its rights,
benefits and obligations under this Agreement pursuant to and in accordance
with Clause 37 (Assignments and Transfers).


 


48

















 


“UK Bank Lender” means, in relation to a
payment of interest on a participation in an Advance to a Borrower, a Lender
which is beneficially entitled to and within the charge to United Kingdom
corporation tax as regards that payment and (a) if the participation in
that Advance was made by it, is a Lender which is a “bank” (as defined for the
purposes of section 349 of the Taxes Act in section 840A of the Taxes
Act) or (b) if the participation in that Advance was made by a different
person, such person was a “bank” (as defined for the purposes of section 349
of the Taxes Act in section 840A of the Taxes Act) at the time that
Advance was made.


 


“UK Borrowers” means:


 


(a)           as at the date of the Agreement, each of
the Company, TCN and NTLIH Sub; and


 


(b)           thereafter, any Acceding Borrower that is
liable to corporation tax in the United Kingdom,


 


excluding any UK Borrower which has been liquidated in
accordance with the provisions of Clause 25.20 (Solvent
Liquidation) but including the relevant Successor Entity (provided
it is also liable to corporation tax in the United Kingdom) thereafter, and “UK Borrower” means any of them.


 


“UK Channel Management” means UK Channel
Management Limited, a company incorporated in England & Wales with
registered number 3322468, whose registered office is at Export House, Cawsey
Way, Woking, Surrey GU21 6QX.


 


“UK Channel Management Group” means the UK
Channel Management and its Subsidiaries from time to time.


 


“UK Channel Management Security Trustee Undertakings”
means the agreement to be entered into on or following the Merger Closing Date
between the Security Trustee, BBC Worldwide Limited, Flextech Broadband Limited
and United Artists Investments Limited in relation to the shareholders’
agreement relating to UK Channel Management.


 


“UK Gold” means UK Gold Holdings Limited, a
company incorporated in England and Wales with registered  number 3298738, whose registered office is at
Export House, Cawsey Way, Woking, Surrey GU21 6QX.


 


“UK Gold Group” means UK Gold and its
Subsidiaries from time to time.


 


“UK Gold Security Trustee Undertaking” means
the agreement to be entered into on or following the Merger Closing Date
between the Security Trustee, BBC Worldwide Limited and Flextech Broadband
Limited in relation to the shareholders agreement relating to UK Gold.


 


“UK Holdcos” means NTL Cable, Telewest UK, and, provided that
the step described in the Steps Paper entitled “Post-Combination
Restructuring-Alternative Step 6x (Structure 1)” is not implemented,
New UK and New UK2, and “UK Holdco”
means any of them.


 


“UK Non-Bank Lender” means, in relation to a
payment of interest on an Advance to a Borrower:


 


(a)           a
Lender which is beneficially entitled to the income in respect of which that
payment is made and is a UK Resident company (the first condition set out in section 349B
of the Taxes Act); or


 


(b)           a
Lender which satisfies one of the other conditions set out in section 349B
of the Taxes Act,


 


where H.M. Revenue &
Customs has not given a direction under section 349C of the Taxes Act
which relates to that payment of interest on an Advance to such Borrower.


 


49

















 


“UK Pension Scheme” means a pension scheme
in which any member of the Group participates or has at any time participated,
and which has its main administration in the United Kingdom or is primarily for
the benefit of employees in the United Kingdom.


 


“UK Resident” means a person who is resident
in the United Kingdom for the purposes of the Taxes Act and “non-UK Resident” shall be construed
accordingly.


 


“UK  Treaty Lender”
means in relation to a payment of interest on an Advance to a UK Borrower, a
Lender which is entitled to claim full relief from liability to taxation otherwise
imposed by such UK Borrower’s Relevant Tax Jurisdiction (in relation to that
Lender’s participation in Advances made to such UK Borrower) on interest under
a Double Taxation Treaty and which does not carry on business in that UK
Borrower’s Relevant Tax Jurisdiction through a permanent establishment with
which that Lender’s participation in that Advance is effectively connected and,
in relation to any payment of interest on any Advance made by that Lender, such
UK Borrower has received notification in writing from H.M. Revenue &
Customs authorising such UK Borrower to pay interest on such Advances without
any Tax Deduction.


 


“UKTV Group” means each of the UK Channel
Management Group, UK Gold Group and UKTV New Ventures Group.


 


“UKTV Joint Ventures” means each of UK
Channel Management, UK Gold and UKTV New Ventures.


 


“UKTV New Ventures” means UKTV New Ventures
Limited, a company incorporated in England and Wales with registered number
04266373, whose registered office is at Export House, Cawsey Way, Woking,
Surrey GU21 6QX.


 


“UKTV New Ventures Group” means the UKTV New
Ventures and its Subsidiaries from time to time. 


 


“UKTV New Ventures Security Trustee Undertaking”
means the agreement to be entered into on or following the Merger Closing Date
between the Security Trustee, BBC Worldwide Limited and Flextech Broadband
Limited in relation to the shareholders agreement relating to UKTV New
Ventures.


 


“Ultimate Parent” means, as at the date of
this Agreement, Telewest Global, or at any time thereafter, the person (if any)
that accedes to this Agreement as the Ultimate Parent pursuant to Clause 26.3 (Acceding Holding Company).


 


“United States” or “US” means the
United States of America, its territories, possessions and other areas subject
to the jurisdiction of the United States of America;


 


“Unpaid Sum” means any sum due and payable
by an Obligor under any Finance Document (other than any Ancillary Facility
Document) but unpaid.


 


“US Accession Lender” means in relation to a payment of
interest on a participation in an Advance, a Lender which is not a Qualifying
UK Lender.


 


“US Bankruptcy Code” means the Bankruptcy Reform Act of 1978,
11 USC. §§ 101 et seq., as amended, or any successor thereto;


 


“US Dollars”, “Dollars” or “$” means the lawful currency for the time being of the
United States;


 


“US Obligors” means the US Borrower and the Restricted
Guarantors, and “US Obligor” means any of them.


 


50

















 


“US Paying Agent” means as at the date of
this Agreement, Deutsche Bank AG, New York Branch and at any other time, any
other person that has been delegated with, or appointed for the purposes of,
carrying out the functions set out in Clause 30.21 (US Paying Agent) subject to the terms set out in that
Clause.


 


“Utilisation” means the utilisation of a
Facility under this Agreement, whether by way of an Advance, the issue of a
Documentary Credit or the establishment of any Ancillary Facility.


 


“Utilisation Date” means:


 


(a)           in
relation to an Advance, the date on which such Advance is (or is requested) to
be made;


 


(b)           in relation to a
utilisation by way of Ancillary Facility, the date on which such Ancillary
Facility is established; and 


 


(c)           in relation to a
utilisation by way of Documentary Credit, the date on which such Documentary
Credit is to be issued, 


 


in each case, in accordance
with the terms of this Agreement.


 


“Utilisation Request” means:


 


(a)           in
relation to an Advance a duly completed notice in the form set out in Part 1
to Schedule 5 (Form of Utilisation
Request (Advances)); or 


 


(b)           in
relation to a Documentary Credit, a duly completed notice in the form set out
in Part 2 to Schedule 5 (Form of Utilisation
Request (Documentary Credits)).


 


“Vanilla  Certain Funds Period”
means, in relation to the A Facility, the period commencing on the date of this
Agreement and ending on the earlier of (i) 2 October 2006 and (ii) the
Merger Closing Date.


 


“Vanilla Clean-Up Period” means the period commencing on the
Merger Closing Date and ending on the date falling 4 months and 2 weeks
thereafter.


 


“Vanilla Drawstop Default”
means an Event of Default arising under any of the following provisions:


 


(a)           with respect to
NTL, the Company, TCN or the Merger Sub only, Clause 27.1 (Non-Payment);



 


(b)           with respect to the
Company or TCN only, Clause 27.2 (Covenants) by
virtue of a breach of the covenant in Clause 25.2 (Negative
Pledge) which has a material adverse effect on the Security (taken
as a whole);


 


(c)           with respect to
NTL, the Company, TCN or the Merger Sub only, Clause 27.4 (Misrepresentation)
by virtue of a breach of any of the representations and warranties in Clause
21.2 (Due Organisation); or


 


(d)           with respect to
NTL, the Company, TCN and the Merger Sub only, Clause 27.6 (Insolvency), Clause 27.7 (Winding-Up),
Clause 27.8 (Execution and Distress) or Clause
27.9 (Similar Events) other than any such
event which is caused by the occurrence or potential occurrence of another
Event of Default.


 


“Vendor Financing Arrangements” means any
arrangement, contractual or otherwise, pursuant to which credit or other
financing is provided or arranged by a supplier (or any of its Affiliates) of
assets 


 


51

















 


(including
equipment) and/or related services to a member of the Bank Group in connection
with such supply of assets and/or services.


 


“Voting Stock” of a person means all classes
of capital stock, share capital or other interests (including partnership
interests) of such person then outstanding and normally entitled (without
regard to the occurrence of any contingency, other than resulting from any
default under any instrument until such default occurs)
to vote in the election of directors, managers or trustees thereof.


 


“Whitewash Documents”
means certified copies of all applicable resolutions, statutory declarations,
auditors’ reports and other documents required by sections 155 to 158 of the
Act to enable any company to provide any financial assistance applicable to it.


 


“Working
Capital” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


1.2          Accounting Expressions


 


All accounting
expressions which are not otherwise defined in this Agreement shall be
construed in accordance with GAAP.


 


1.3          Construction


 


Unless a contrary
indication appears, any reference in this Agreement to:


 


the “Facility Agent”, the “US Paying
Agent”, the “Administrative Agent”,
a “Mandated Lead Arranger”, a “Joint Lead Arranger”, a “Bookrunner”,
the “Security Trustee”, a “Hedge Counterparty”, the “L/C Bank”, an “Ancillary Facility Lender” or a “Lender” shall be construed so as to include their respective
and any subsequent successors, Transferees and permitted assigns in accordance
with their respective interests;


 


“agreed form” means, in relation to any
document, in the form agreed by or on behalf of the Bookrunners and the Company
prior to the date of this Agreement;


 


“company” includes any body corporate;


 


“continuing” in relation to an Event of
Default, or a Default shall be construed as meaning that (a) the
circumstances constituting such Event of Default or Default continue or (b) neither
the Facility Agent (being duly authorised to do so) nor the Lenders have waived
in accordance with this Agreement, such of its or their rights under this
Agreement as arise as a result of that event;


 


“determines” or “determined” means, save as otherwise provided herein, a
determination made in the absolute discretion of the person making the
determination;


 


the “equivalent” on any given date in one
currency (the “first currency”) of
an amount denominated in another currency (the “second currency”) is a reference to the amount of the first
currency which could be purchased with the second currency at the Facility
Agent’s Spot Rate of Exchange at or about 11:00 a.m. on the relevant date
for the purchase of the first currency with the second currency or for the
purposes of determining any amounts testing any covenant or determining whether
an Event of Default has occurred under this Agreement:


 


(a)           in the case of any basket or threshold
amount qualifying a covenant:


 


(i)            in order to determine how much of such
basket or threshold has been used at any time, for each transaction entered
into in reliance upon the utilisation of such basket or in reliance upon such
threshold not being reached prior to such time, the date upon which such
transaction was entered into; and


 


52

















 


(ii)           in order to determine the permissibility of
a proposed transaction, on the date upon which the permissibility of that
transaction is being tested for the purposes of determining compliance with
that covenant; and 


 


(b)           in the case of any basket or threshold
amount relating to an Event of Default, the date on which the relevant event is
being assessed for the purposes of determining whether such Event of Default
has occurred,


 


provided that in
the case of Financial Indebtedness proposed to be incurred to refinance other
Financial Indebtedness denominated in a currency other than Sterling or other
than the currency in which such refinanced Financial Indebtedness is
denominated, if such refinancing would cause any applicable
Sterling-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such Sterling
denominated restriction shall be deemed not to be exceeded so long as the
principal amount of such refinancing Financial Indebtedness does not exceed the
principal amount of such Financial Indebtedness being refinanced in the
applicable currency at the then current exchange rate.


 


“month” is a reference to a period starting
on one day in a calendar month and ending on the numerically corresponding day
in the next succeeding calendar month save that, where any such period would
otherwise end on a day which is not a Business Day, it shall end on the next
succeeding Business Day, unless that day falls in the calendar month succeeding
that in which it would otherwise have ended, in which case it shall end on the
immediately preceding Business Day provided that, if a period starts on the
last Business Day in a calendar month or if there is no numerically
corresponding day in the month in which that period ends, that period shall end
on the last Business Day in that later month (provided that in any reference to
“months” only the last month in a
period shall be construed in the aforementioned manner);


 


a “repayment” shall include a “prepayment” and references to “repay” or “prepay” shall be construed accordingly;


 


a “person” shall be construed as a reference
to any person, firm, company, whether with limited liability or otherwise,
government, state or agency of a state or any association or partnership
(whether or not having separate legal personality) of two or more of the
foregoing;


 


“tax” shall be construed so as to include
all present and future taxes, charges, imposts, duties, levies, deductions or
withholdings of any kind whatsoever, or any amount payable on account of or as
security for any of the foregoing, by whomsoever on whomsoever and wherever
imposed, levied, collected, withheld or assessed together with any penalties,
additions, fines, surcharges or interest relating to it; and “taxes” and “taxation” shall be construed accordingly;


 


“VAT” shall be construed as value added tax
as provided for in the Value Added Tax Act 1994 and legislation (or purported
legislation and whether delegated or otherwise) supplemental to that Act or in
any primary or secondary legislation promulgated by the European Community or
European Union or any official body or agency of the European Community or
European Union, and any tax similar or equivalent to value added tax imposed by
any country other than the United Kingdom and any similar or turnover tax
replacing or introduced in addition to any of the same; 


 


“wholly-owned Subsidiary” of a company shall
be construed as a reference to any company which has no other members except
that other company and that other company’s wholly-owned Subsidiaries or
nominees for that other company or its wholly-owned Subsidiaries; and


 


the “winding-up”, “dissolution” or “administration”
of a company shall be construed so as to include any equivalent or analogous
proceedings under the Law of the jurisdiction in which such company is
incorporated, established or organised or any jurisdiction in which such
company carries 


 


53

















 


on business,
including the seeking of liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection from creditors or relief of
debtors.


 


1.4          Currency


 


“€” and “euro”
denote the lawful currency of each Participating Member State, “£” and “Sterling”
denote the lawful currency of the United Kingdom and “$” and “Dollars”
denote the lawful currency of the United States of America.


 


1.5          Statutes


 


Any reference in
this Agreement to a statute or a statutory provision shall, save where a
contrary intention is specified, be construed as a reference to such statute or
statutory provision as the same shall have been, or may be, amended or re-enacted.


 


1.6          Time


 


Any reference in
this Agreement to a time shall, unless otherwise specified, be construed as a
reference to London time.


 


1.7          References to Agreements


 


Unless otherwise
stated, any reference in this Agreement to any agreement or document (including
any reference to this Agreement) shall be construed as a reference to:


 


(a)           such agreement or document as amended,
varied, novated or supplemented from time to time;


 


(b)           any other agreement or document whereby
such agreement or document is so amended, varied, supplemented or novated; and


 


(c)           any other agreement or document entered
into pursuant to or in accordance with any such agreement or document.


 


1.8          Documentary Credits


 


Any reference in
this Agreement to:


 


(a)           an amount borrowed includes any amount
utilised by way of Documentary Credit;


 


(b)           a Lender funding its participation in a
Utilisation includes an Indemnifying Lender participating in a Documentary
Credit;


 


(c)           amounts outstanding under this Agreement
include amounts outstanding under, or in relation to, any Documentary Credit;


 


(d)           an outstanding amount of a Documentary
Credit at any time is the maximum amount that is or may be payable by the L/C
Bank in respect of that Documentary Credit at that time;


 


(e)           a Borrower “repaying” a Documentary Credit or an Ancillary Facility
utilised by way of performance bond means:


 


(i)            that Borrower providing cash cover for that
Documentary Credit or performance bond;


 


(ii)           the maximum amount payable under the
Documentary Credit or performance bond being reduced in accordance with its
terms or otherwise in a manner satisfactory to 


 


54

















 


the L/C or Ancillary Facility Lender, as the case be,
in each case, acting reasonably; or


 


(iii)         the L/C Bank or Ancillary Facility Lender,
as the case be, being satisfied that it has no further liability under that
Documentary Credit or performance bond,


 


and that the amount by which a Documentary Credit or
performance bond is repaid under sub-paragraph (e)(i) or reduced under
sub-paragraph (e)(ii) above is the amount of the relevant cash cover or
reduction; and


 


(f)            a Borrower providing “cash cover” for a Documentary Credit or an Ancillary Facility utilised by
way of performance bond means that Borrower paying an amount in the currency of
the Documentary Credit or performance bond to an interest-bearing account in
the name of that Borrower and the following conditions are met:


 


(i)            the account is with the Facility Agent (if
the cash cover is to be provided for all the Indemnifying Lenders) or with an
Indemnifying Lender or the L/C Bank or the Ancillary Facility Lender (if the
cash cover is to be provided for that Indemnifying Lender or the L/C Bank or
Ancillary Facility Lender, as the case may be); 


 


(ii)           in the case of cash deposited as cash cover
for a Documentary Credit, withdrawals from the account may only be made to pay
a Finance Party amounts due and payable to it under this Agreement in respect
of that Documentary Credit until no amount is or may be outstanding under that
Documentary Credit; and


 


(iii)         the relevant Borrower has executed a
security document over that account, in form and substance satisfactory to the
Facility Agent or the Finance Party with which that account is held, creating a
first ranking security interest over that account,


 


or on such other terms as may be satisfactory to the
Facility Agent, the relevant Indemnifying Lender, the relevant Ancillary
Facility Lender or the L/C Bank.


 


1.9          Holding Company of Ultimate Parent


 


If at any time the
Ultimate Parent becomes the Subsidiary of any Holding Company as contemplated
by, inter alia, the definition of “Change of Control”, the provisions of Clause
26.3 (Acceding Holding Company)
shall apply and upon satisfaction of the provisions thereof, any references in
the Finance Documents to “Ultimate Parent” shall thereafter be deemed to be
references to such Holding Company


 


1.10        No Personal Liability


 


No personal liability shall attach to any director,
officer or employee of any member of the Group for any representation or
statement made by that member of the Group in a certificate signed by such
director, officer or employee.


 


2.             THE FACILITIES


 


2.1          The Facilities


 


The Lenders grant
upon the terms and subject to the conditions of this Agreement:


 


(a)           to the Borrowers (other than the US
Borrower), a term loan facility in a maximum amount of £3,200,000,000 (the “A Facility”) which shall be available in
Sterling in a single drawing;


 


55

















 


(b)           to Baseball Cash Bidco, a term loan
facility in a maximum amount of £175,000,000 (the “A1 Facility”) which shall be available in Sterling in a single
drawing;


 


(c)           to Baseball Cash Bidco, a term loan
facility in a maximum amount of £300,000,000 (the “B1 Facility”) which shall be available in Dollars and/or
Sterling; and


 


(d)           to the Borrowers (other than the US
Borrower), a revolving loan facility in a maximum aggregate amount of
£100,000,000 (the “Revolving Facility”)
which shall be available for drawing in euro, Dollars, Sterling or any Optional
Currency subject to the utilisation in full of the A Facility.


 


2.2          Novation of B1 Facility


 


Subject to the
provisions of Clause 37.3 (Assignments or Transfers
by Lenders), the Facility Agent may, at
any time after the date falling 15 days after the Baseball Effective Date on
not less than 2 Business Days prior notice, require Baseball Cash Bidco to
(and Baseball Cash Bidco shall promptly thereafter) transfer by way of novation
and in form satisfactory to the Facility Agent, some or all of its obligations
under the B1 Facility to the US Borrower, whereupon such US Borrower
shall become the primary obligor in respect of such obligations as if it had
been the original Borrower thereof.


 


2.3          Purpose


 


(a)           The A Facility shall be applied towards
financing:


 


(i)            the repayment in full of all amounts due
and payable under the Existing Credit Facilities (including in each case
without limitation, by way of principal, interest, break costs, fees and
expenses, commission and any other premiums); and


 


(ii)           any fees, costs and expenses due and
payable under the Finance Documents and any other fees, costs and expenses
incurred by the Obligors in connection with the negotiation and preparation of
the Finance Documents,


 


provided that, for
the avoidance of doubt, no portion of the A Facility (or proceeds therefrom)
may be used to finance any part of the purchase price payable for the Merger or
any related fees, costs and expenses incurred therein.


 


(b)           The A1 Facility and B1 Facility shall be
applied towards financing or refinancing:


 


(i)            firstly, the entire cash consideration payable by
Baseball Cash Bidco in respect of the Baseball Shares to be acquired by the
Baseball Bidcos pursuant to the Baseball Scheme and any payments to holders of
options in respect of the Baseball Shares who exercise or surrender their
options in connection with the Baseball Scheme;


 


(ii)           secondly, after payment in full of the
amounts specified in sub-paragraph (i) above, the payment of related fees,
costs and expenses (and taxes thereon) due and payable by or on behalf of the
Baseball Bidcos in connection with the Baseball Scheme including all stamp,
registration or similar taxes thereon; and 



 


(iii)         thirdly, after payment in full of the
amounts specified in sub-paragraph (ii) above, the repayment in full of
all amounts due and payable under the Existing Baseball Facilities (including
in each case without limitation, by way of principal, interest, break costs,
fees and expenses, commission and any other premiums) on or after the Baseball
Effective Date. 


 


56

















 


(c)           The Revolving Facility shall be applied for
the purposes of financing the ongoing working capital requirements and the
general corporate purposes of the Bank Group and may be utilised by way of
Revolving Facility Advances, Documentary Credits or, subject to the provisions
of Clause 6 (Ancillary Facilities), Ancillary
Facilities.


 


(d)           Each Borrower shall apply all amounts
borrowed under this Agreement in or towards satisfaction of the purposes
referred to in paragraphs (a) to (c) (as applicable) and none of the
Finance Parties shall be obliged to concern themselves with such application.


 


2.4          Several Obligations


 


The obligations of
each Finance Party under this Agreement are several and the failure by a Finance
Party to perform any of its obligations under this Agreement shall not affect
the obligations of any of the Obligors towards any other party to this
Agreement nor shall any other party be liable for the failure by such Finance
Party to perform its obligations under this Agreement.  


 


2.5          Several Rights


 


The rights of each
Finance Party are several and any debt arising under this Agreement at any time
from an Obligor to any Finance Party to this Agreement shall be a separate and
independent debt.  Each Finance Party
may, except as otherwise stated in this Agreement, separately enforce its
rights under this Agreement.


 


3.             CONDITIONS


 


3.1          Vanilla Conditions Precedent


 


The obligations of
the Lenders to make the A Facility and the Revolving Facility available shall
be conditional upon the Facility Agent having confirmed to the Company that it
has received (or has waived in accordance with this Agreement, the requirement
to receive) the documents listed in Part 1 of Schedule 4 (Conditions Precedent to First Utilisation) and that each is
satisfactory, in form and substance, to the Facility Agent, acting
reasonably.  The Facility Agent shall
notify the Company and the Lenders promptly upon being so satisfied.


 


3.2          Baseball Conditions Precedent


 


The obligations of the Lenders to make the A1 Facility
and the B1 Facility available shall be conditional upon the Facility Agent
having confirmed to Baseball Cash Bidco that it has received (or has waived in
accordance with this Agreement, the requirement to receive) the documents
listed in Part 2 of Schedule 4 (Conditions Precedent to
First Baseball Utilisation) and that each is satisfactory, in form
and substance, to the Facility Agent, acting reasonably.  The Facility Agent shall notify Baseball Cash
Bidco and the Lenders promptly upon being so satisfied.


 


3.3          Vanilla Conditions Subsequent


 


The Company shall
procure (and each relevant Obligor shall ensure) that:


 


(a)           immediately after the first Utilisation,
the Merger Sub and NTL shall have filed the certification of merger with the
Secretary of State of Delaware and the Ultimate Parent shall have filed the
charter amendment as set forth in Section 2.01(b) of the Merger
Agreement; 


 


(b)           within 30 days after the Merger Closing
Date (or earlier, to the extent required by any time-limit prescribed by law)
all Initial Security Documents shall have been registered or filed with all
appropriate authorities to the extent necessary for the purposes of perfecting
the Security created thereunder; 


 


57

















 


(c)           within 30 days after the Merger Closing
Date, there shall have been delivered to the Facility Agent each of the
documents listed in Part 5 of Schedule 4 (Vanilla
Conditions Subsequent Documents) each in form and substance
satisfactory to the Facility Agent, acting reasonably; and


 


(d)           within 10 days after the Merger Closing
Date, such members of the TCN Group as shall be necessary to ensure that the
80% Security Test (after giving effect to the Merger) is satisfied, shall have
acceded to this Agreement as Acceding Guarantors and provided all necessary
documentation in connection with such accession in accordance with the
provisions of Clause 26.2 (Acceding
Guarantors).


 


The Facility Agent
shall notify the Company and the Lenders promptly upon being so satisfied.


 


3.4          Baseball Conditions Subsequent


 


The Baseball Cash Bidco shall procure (and the Company
shall ensure) that as soon as reasonably practicable and in any event within 90
days of the Baseball Effective Date such members of the Baseball Group as shall
be necessary to ensure that the 80% Security Test (after giving effect to the
Baseball Acquisition) is satisfied, shall have acceded to this Agreement as
Acceding Guarantors and provided all necessary documentation required to be delivered
pursuant to the provisions of Clause 26.2 (Acceding
Guarantor) and each of the documents listed in Part 6 of Schedule 4
(Baseball Condition Subsequent Documents),
each in form and substance satisfactory to the Facility Agent, acting
reasonably.  The Facility Agent shall
notify the Company and the Lenders promptly upon being so satisfied.


 


3.5          Vanilla Certain Funds Period


 


Prior to the end of
the Vanilla Certain Funds Period, no Finance Party may:


 


(a)           exercise any rights of rescission,
termination, cancellation, set-off or counterclaim;


 


(b)           exercise any remedy under Clause 27 (Events of Default) or any other remedy in connection with a
Finance Document; 


 


(c)           invoke any right or discretion for which
provision is made in this Agreement requiring any prepayment or repayment of
any A Facility Advance, any Revolving Facility Advance or any Documentary
Credit; or


 


(d)           refuse to make available any A Facility
Advance for the purposes set out in paragraph (a) of Clause 2.3 (Purpose), 


 


unless either:


 


(i)            the conditions
precedent to first Utilisation required by Clause 3.1 (Vanilla
Conditions Precedent) are not satisfied or waived or a Borrower
fails to deliver a Utilisation Request in respect of such Utilisation; or 


 


(ii)           a Vanilla Drawstop
Default has occurred and is continuing,


 


provided that any matter contained in this Clause 3.5
shall be without prejudice to the Lenders’ rights or remedies in respect of any
Event of Default which has occurred and which remains outstanding upon the
expiry of the Vanilla Certain Funds Period.


 


58

















 


3.6          Baseball Certain Funds Period


 


Prior to the end of the Baseball Certain Funds Period,
no Finance Party may:


 


(a)           have the right to prevent or limit the
making of any drawdown under the A1 Facility or the B1 Facility whether by
cancellation, rescission or termination of the A1 Facility and/or the B1
Facility or otherwise (including by invoking any conditions precedent other
than in accordance with Clause 3.2 (Baseball Conditions Precedent)
or by invoking the provisions of Clause 15.1 (Market
Disruption);


 


(b)           make or enforce any claims that it may have
under the Finance Documents if the effect of such claim or enforcement would
prevent or limit the making of any drawdown under the A1 Facility and/or  the B1 Facility;


 


(c)           exercise any right of set-off, counterclaim
or similar right or remedy if to do so would prevent or limit the making of any
drawdown under  the A1 Facility or  the B1 Facility; or


 


(d)           cancel or declare the A1 Facility and/or
the B1 Facility due and payable or payable on demand,


 


unless either:


 


(i)            the conditions precedent to first
Utilisation required by Clause 3.2 (Baseball Conditions
Precedent) are not satisfied or waived or a Borrower fails to
deliver a Utilisation Request in respect of such Utilisation; 


 


(ii)           a Baseball Drawstop Default has occurred
and is continuing; or


 


(iii)         it is unlawful for such Lender to make any
A1 Facility Advance and/or B1 Facility Advance,


 


provided that any
matter contained in this Clause 3.6 shall be without prejudice to the Lenders’
rights or remedies in respect of any Event of Default which has occurred and
which remains outstanding upon the expiry of the Baseball Certain Funds Period.


 


4.             UTILISATION


 


4.1          Conditions to Utilisation


 


Save as otherwise
provided in this Agreement, an Advance will be made by the Lenders to a
Borrower or a Documentary Credit will be issued by an L/C Bank at a Borrower’s
(other than the US Borrower’s) request if:


 


(a)           in the case of an Advance, the Facility
Agent has received from such Borrower a duly completed Utilisation Request in
the relevant form, and in the case of a Documentary Credit, both the Facility
Agent and the L/C Bank have received from a Borrower (other than the US
Borrower) a duly completed Utilisation Request in the relevant form, in each
case, no earlier than the day which is 10 Business Days and no later than 2:00 p.m.
on the day which is 3 Business Days (or in the case of any Documentary
Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later
than 2:00 p.m. on the day which is 5 Business Days) prior to the proposed
Utilisation Date for such Advance or Documentary Credit, receipt of which shall
oblige such Borrower to utilise the amount requested on the Utilisation Date
stated therein upon the terms and subject to the conditions contained in this
Agreement;


 


59

















 


(b)           the proposed Utilisation Date is a Business
Day for the proposed currency of the Advance or Documentary Credit, as the case
may be, which is or precedes the relevant Termination Date;


 


(c)           in the case of a Utilisation by way of Term
Facility Advance, such Utilisation would result in the maximum principal amount
of the Term Facility Advance being utilised, or in the case of a Utilisation by
way of a Revolving Facility Advance, such Utilisation occurs on or after the
maximum principal amount of the Term Facility being utilised and, the proposed
Sterling Amount of such Revolving Facility Advance is (i) equal to the
amount of the Available Revolving Facility Commitment at such time, or (ii) less
than such amount but equal to a minimum of £5 million, or an integral multiple
of £1 million;


 


(d)           in the case of a Utilisation by way of
Documentary Credit, the proposed Sterling Amount of such Documentary Credit is (i) equal
to the amount of the Available Revolving Facility or (ii) less than such
amount but equal to or more than £1 million
or such lesser amount as the L/C Bank may agree;


 


(e)           in the case of a Utilisation by way of a
Revolving Facility Advance, immediately after the making of such Advance there
will be no more than 10 Revolving Facility Advances
then outstanding;


 


(f)            in the case of a Utilisation by way of a
Documentary Credit, the proposed Term of the Documentary Credit ends on or
before the Termination Date in respect of the Revolving Facility;


 


(g)           in the case of a Utilisation by way of a
Revolving Facility Advance, the proposed Term of such Advance is a period of 1,
2, 3 or 6 months or such other period of up to 12 months as all the Lenders
having a Revolving Facility Commitment may agree prior to submission of the
relevant Utilisation Request, and ends on or before the Final Maturity Date in
respect of the Revolving Facility provided that, save as the Bookrunners may
otherwise agree, prior to the Syndication Date, the Term of each Revolving
Facility Advance shall be 1 month (or, if less, such duration as is necessary
to ensure that such Term ends on the Syndication Date);


 


(h)           in the case of a Utilisation by way of an
Advance (other than a Rollover Advance), the interest rate applicable to such
Advance’s first Interest Period or Term (as the case may be) will not have to
be determined under Clause 15 (Market Disruption and
Alternative Interest Rates);


 


(i)            in the case of a Utilisation by way of a
Documentary Credit which is  not
substantially in the form set out in Schedule 12 (Form of Documentary
Credit), the L/C Bank shall have approved the terms of such
Documentary Credit (acting reasonably); and


 


(j)            in the case of any Utilisation, on the date
of the Utilisation Request, the date of any Conversion Notice and the proposed
Utilisation Date:


 


(i)            in the case of a Rollover Advance or a
Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), the Facility Agent shall
not have received instructions from a Revolving Facility Instructing Group
requiring the Facility Agent to refuse such rollover or renewal of a
Documentary Credit by reason of an Event of Default having occurred which is
continuing or would result from the proposed Rollover Advance or the renewal of
that Documentary Credit; or


 


(ii)           in the case of any Utilisation other than
that referred to in sub-paragraph (i):


 


(A)          in the case of the first Utilisation,
subject to the provisions of Clause 3.5 (Vanilla  Certain Funds Period), all representations
set out in Clause 21 


 


60

















 


(Representations and Warranties) made by
each of the persons identified as making those representations are true in all
material respects by reference to the circumstances then existing and no
Default is continuing or would result from the proposed Utilisation; or


 


(B)          in the case of any other Utilisation,
subject to the provisions of Clause 3.6 (Baseball Certain Funds
Period), the Repeating Representations made by the persons
identified as making those representations are true in all material respects by
reference to the circumstances then existing and no Default is continuing or
would result from the proposed Utilisation.


 


4.2          Lenders’ Participations


 


Each Lender will
participate through its Facility Office in each Advance made pursuant to Clause
4.1 (Conditions to Utilisation) in its
respective Proportion.


 


5.             DOCUMENTARY CREDITS


 


5.1          Issue of Documentary Credits


 


(a)           Each L/C Bank shall issue Documentary
Credits pursuant to Clause 4.1 (Conditions to Utilisation)
by:


 


(i)            completing the issue date and the proposed
Expiry Date of any Documentary Credit to be issued by it; and


 


(ii)           executing and delivering such Documentary
Credit to the relevant Beneficiary on the relevant Utilisation Date.


 


(b)           Each Lender having a Revolving Facility
Commitment (an “Indemnifying Lender”)
will participate by way of indemnity in each Documentary Credit in an amount
equal to its L/C Proportion.


 


(c)           The Facility Agent shall notify each
Indemnifying Lender and the L/C Bank of the details of any requested
Documentary Credit (including the Sterling Amount of it, and, if such
Documentary Credit is not to be denominated in Sterling, the relevant currency
in which it will be denominated and the amount of it) and its participation in
that Documentary Credit.


 


5.2          Renewal of Documentary Credits


 


(a)           Each Borrower (other than the US Borrower)
may request that a Documentary Credit issued on its behalf be renewed by
delivering to the Facility Agent and the L/C Bank a Renewal Request which
complies with Clause 4.1 (Conditions to Utilisation).


 


(b)           The terms of each renewed Documentary
Credit shall be the same as those of the relevant Documentary Credit
immediately prior to its renewal, except that (as stated in the Renewal Request
therefor):


 


(i)            its amount may be less than the amount of
such Documentary Credit immediately prior to its renewal; and


 


(ii)           its Term shall start on the date which was
the Expiry Date of that Documentary Credit immediately prior to its renewal,
and shall end on the proposed Expiry Date specified in the Renewal Request.


 


61

















 


(c)           If the conditions set out in this Clause
5.2 have been met, the L/C Bank shall amend and re-issue the relevant
Documentary Credit pursuant to a Renewal Request.


 


5.3          Revaluation of Documentary Credits


 


(a)           If any Documentary Credit is denominated in
a currency other than Sterling and has a Term of more than 6 months, the
Facility Agent shall on each Quarter Date falling on 31 March and 30 September recalculate
the Sterling Amount of that Documentary Credit by notionally converting into
the relevant currency, the outstanding amount of that Documentary Credit on the
basis of the Facility Agent’s Spot Rate of Exchange on the date of calculation.


 


(b)           The relevant Borrower shall, if requested
by the Facility Agent within 2 days of any calculation under paragraph (a) above,
ensure that within 3 Business Days sufficient Revolving Facility Outstandings
are repaid (subject to Break Costs, if applicable, but otherwise without
penalty or premium which might otherwise be payable) to prevent the Sterling
Amount of the Revolving Facility Outstandings exceeding the aggregate amount of
all of the Revolving Facility Commitments adjusted to reflect any cancellations
or reductions, following any adjustment under paragraph (a) above.


 


5.4          Immediately Payable


 


If a Documentary
Credit or any amount outstanding under a Documentary Credit is expressed to be
immediately payable, the relevant UK Borrower shall repay that amount
immediately.


 


5.5          Claims under a Documentary Credit


 


(a)           Each relevant Borrower irrevocably and
unconditionally authorises the L/C Bank to pay any claim made or purporting to
be made under a Documentary Credit requested by it and which appears on its
face to be in order (a “claim”).


 


(b)           Each relevant Borrower shall within 3
Business Days of a demand pay to the Facility Agent for the L/C Bank an amount
equal to the amount of any claim.


 


(c)           Each relevant Borrower acknowledges that
the L/C Bank:


 


(i)            is not obliged to carry out any
investigation or seek any confirmation from any other person before paying a
claim; and


 


(ii)           deals in documents only and will not be
concerned with the legality of a claim or any underlying transaction or any
available set-off, counterclaim or other defence of any person.


 


(d)           The obligations of each relevant Borrower
under this Clause 5.5 will not be affected by:


 


(i)            the sufficiency, accuracy or genuineness of
any claim or any other document; or


 


(ii)           any incapacity of, or limitation on the
powers of, any person signing a claim or other document.


 


(e)           Without prejudice to any other matter
contained in this Clause 5.5, the L/C Bank shall notify the relevant Borrowers
as soon as reasonably practicable after receiving a claim.


 


5.6          Documentary Credit Indemnities


 


(a)           The relevant Borrower shall within 3
Business Days of demand indemnify the L/C Bank against any cost, loss or
liability incurred by the L/C Bank (otherwise than by reason of the 


 


62

















 


L/C Bank’s gross negligence or wilful misconduct) in
acting as the L/C Bank under any Documentary Credit requested by such Borrower
provided that this indemnity shall not take effect until the Merger Closing
Date.


 


(b)           Each Indemnifying Lender shall (according
to its L/C Proportion) promptly on demand indemnify the L/C Bank against any
cost, loss or liability incurred by the L/C Bank (otherwise than by reason of
the L/C Bank’s gross negligence or wilful misconduct) in acting as the L/C Bank
under any Documentary Credit (except to the extent that the L/C Bank has been
reimbursed by an Obligor pursuant to a Finance Document).


 


(c)           If any Indemnifying Lender is not permitted
(by its constitutional documents or any applicable Law) to comply with
paragraph (b) above, then that Indemnifying Lender will not be obliged to
comply with paragraph (b) and shall instead be deemed to have taken, on
the date the relevant Documentary Credit is issued (or if later, on the date
that Indemnifying Lender’s participation in the Documentary Credit is
transferred or assigned to that Indemnifying Lender in accordance with the
terms of this Agreement), an undivided interest and participation in the
Documentary Credit in an amount equal to its L/C Proportion of that Documentary
Credit.  On receipt of demand from the
Facility Agent, that Indemnifying Lender shall pay to the Facility Agent (for
the account of the L/C Bank) an amount equal to its L/C Proportion of the
amount demanded under paragraph (b) above.


 


(d)           The relevant Borrower shall within 3
Business Days of demand reimburse any Indemnifying Lender for any payment it
makes to the L/C Bank under this Clause 5.6 in respect of that Documentary
Credit unless an Obligor has already reimbursed the L/C Bank in respect of that
payment.


 


(e)           The obligations of each Indemnifying Lender
under this Clause 5.6 are continuing obligations and will extend to the
ultimate balance of sums payable by that Indemnifying Lender in respect of any
Documentary Credit, regardless of any intermediate payment or discharge in
whole or in part.


 


(f)            The obligations of any Indemnifying Lender
under this Clause 5.6 will not be affected by any act, omission, matter or
thing which, but for this Clause 5.6 would reduce, release or prejudice any of
its obligations under this Clause 5.6 (without limitation and whether or not
known to it or any other person) including:


 


(i)            any time, waiver or consent granted to, or
composition with, any Obligor, any beneficiary under a Documentary Credit or
any other person;


 


(ii)           the release of any Obligor or any other
person under the terms of any composition or arrangement with any creditor of
any member of the Group;


 


(iii)         the taking, variation, compromise,
exchange, renewal or release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any Obligor, any
beneficiary under a Documentary Credit or any other person or any
non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any
security;


 


(iv)          any incapacity or lack of power, authority
or legal personality of or dissolution or change in the members or status of an
Obligor, any beneficiary under a Documentary Credit or any other person;


 


(v)            any amendment or restatement (however
fundamental) or replacement of a Finance Document, any Documentary Credit or
any other document or security;


 


63

















 


(vi)          any unenforceability, illegality or
invalidity of any obligation of any person under any Finance Document, any
Documentary Credit or any other document or security; or


 


(vii)         any insolvency or similar proceedings.


 


5.7          Rights of Contribution


 


No Obligor will be
entitled to any right of contribution or indemnity from any Finance Party in
respect of any payment it may make under this Clause 5 (Documentary
Credits).


 


5.8          Role of the L/C Bank


 


(a)           Nothing in this Agreement constitutes the
L/C Bank as a trustee or fiduciary of any other person.


 


(b)           The L/C Bank shall not be bound to account
to any Lender for any sum or the profit element of any sum received by it for its
own account.


 


(c)           The L/C Bank may accept deposits from, lend
money to and generally engage in any kind of banking or other business with any
member of the Group.


 


(d)           The L/C Bank may rely on:


 


(i)            any representation, notice of document
believed by it to be genuine, correct and appropriately authorised; and


 


(ii)           any statement made by a director,
authorised signatory or employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his power to verify.


 


(e)           The L/C Bank may engage, pay for and rely
on the advice or services of any lawyers, accountants, surveyors or other
experts.


 


(f)            The L/C Bank may act in relation to the
Finance Documents through its personnel and agents.


 


(g)           The L/C Bank is not responsible for:


 


(i)            the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the L/C Bank, the
Facility Agent, the Mandated Lead Arrangers, an Obligor or any other person
given in or in connection with any Finance Document; or


 


(ii)           the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in anticipation of or in
connection with any Finance Document.


 


5.9          Exclusion of Liability


 


(a)           Without limiting paragraph (b) below,
the L/C Bank will not be liable for any action taken by it under or in
connection with any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.


 


(b)           No Finance Party (other than the L/C Bank)
may take any proceedings against any officer, employee or agent of the L/C Bank
in respect of any claim it might have against the L/C Bank or in respect of any
act or omission of any kind by that officer, employee or agent in relation to
any Finance Document.


 


64

















 


5.10        Credit Appraisal by the Indemnifying Lenders


 


Without affecting
the responsibility of any Obligor for information supplied by it or on its
behalf in connection with any Finance Document, each Indemnifying Lender
confirms to the L/C Bank that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of the
risks arising under or in connection with any Finance Document, including but
not limited to, those listed in paragraphs (a) to (d) of Clause 30.16
(Credit Appraisal by the Lenders).


 


5.11        Appointment and Change of L/C Bank


 


(a)           The Company, with the prior written consent
of the relevant Lender, may designate any Lender with a Revolving Facility
Commitment as an L/C Bank or as a replacement therefor, but not with respect to
Documentary Credits already issued by any other L/C Bank.


 


(b)           Any Lender so designated shall become an
L/C Bank under this Agreement by delivering to the Facility Agent an executed
L/C Bank Accession Certificate.


 


(c)           An L/C Bank may resign as issuer of further
Documentary Credits at any time if (i) the Company and an Instructing
Group consent to such resignation or so require; (ii) there is, in the
reasonable opinion of the L/C Bank, an actual or potential conflict of interest
in it continuing to act as L/C Bank; or (iii) its Revolving Facility
Commitment is reduced to zero, provided that the L/C Bank shall not resign
until a replacement L/C Bank is appointed.


 


6.             ANCILLARY FACILITIES


 


6.1          Utilisation of Ancillary Facilities


 


(a)           Each Borrower (other than the US Borrower)
may subject to paragraph (b) below, at any time at least 35 days prior to
the Termination Date in respect of the Revolving Facility by delivery of a
notice (a “Conversion Notice”) to
the Facility Agent, request an Ancillary Facility to be established by the
conversion of any Lender’s Available Revolving Facility Commitment (or any part
of it) into an Ancillary Facility Commitment with effect from the date (in this
Clause 6, the “Effective Date”)
specified in the Conversion Notice (being a date not less than 3 Business
Days after the date such Conversion Notice is received by the Facility Agent).


 


(b)           Each Conversion Notice shall specify:


 


(i)            the nominated Ancillary Facility Lender;


 


(ii)           the type of Ancillary Facility and the
currency or currencies in which the relevant Borrower wishes such Ancillary
Facility to be available;


 


(iii)         the proposed Sterling Amount of the original
Ancillary Facility Commitment, being an amount equal to (i) the Available
Revolving Facility Commitment of the nominated Ancillary Facility Lender or, if
less, (ii) equal to or more than £5 million;


 


(iv)          the commencement and expiry date for the
relevant Ancillary Facility (such expiry date not to extend beyond the Final
Maturity Date in respect of the Revolving Facility); 


 


(v)            if the Ancillary Facility is an overdraft
facility comprising more than one account its maximum gross amount (that amount
being the “Designated Gross Amount”)
and its maximum net amount (that amount being the “Designated Net Amount”); and


 


65

















 


(vi)          such other details as to the nature,
amount, fees for and operation of the proposed Ancillary Facility as the
Facility Agent and the nominated Ancillary Facility Lender may reasonably
require.


 


(c)           The Facility Agent shall promptly notify
each of the Lenders having a Revolving Facility Commitment of each Conversion
Notice received pursuant to paragraph (a) above.


 


(d)           Any Lender nominated as an Ancillary
Facility Lender which has notified the Facility Agent of its consent to such
nomination shall be authorised to make the proposed Ancillary Facility
available in accordance with the Conversion Notice (as approved by the Facility
Agent) with effect on and from the Effective Date.  No other Lender shall be obliged to consent
to the nomination of the Ancillary Facility Lender.


 


(e)           Any material variation from the terms of
the Ancillary Facility or any proposed increase or reduction of the Ancillary
Facility Commitment shall be effected on and subject to the provisions of this
Clause 6 mutatis mutandis as if such Ancillary
Facility were newly requested, provided that the Sterling Amount of the Ancillary
Facility Outstandings under each Ancillary Facility shall at no time exceed the
related Ancillary Facility Commitment.


 


(f)            Each relevant Borrower may (subject to
compliance with the applicable terms of the relevant Ancillary Facility) at any
time by giving written notice to the Facility Agent and the relevant Ancillary
Facility Lender cancel any Ancillary Facility Commitment pursuant to and in
accordance with Clause 10.1 (Voluntary Cancellation),
provided that on the date of such cancellation, that part of such Ancillary
Facility Commitment as shall have been so cancelled shall be converted back
into the Revolving Facility Commitment of the relevant Lender unless the
Revolving Facility Commitments are also cancelled on such date.


 


(g)           The Ancillary Facility Commitment of any
Ancillary Facility Lender shall terminate and be cancelled on the date agreed
therefor between the relevant Ancillary Facility Lender and the relevant
Borrower, provided such date shall be no later than the Termination Date in respect
of the Revolving Facility (the “Ancillary
Facility Termination Date”). 
Any Ancillary Facility Outstandings on the applicable Ancillary Facility
Termination Date shall be repaid in full by the relevant Borrower on such date.


 


(h)           The Revolving Facility Commitment of each
Lender at any time shall be reduced by the amount of any Ancillary Facility
Commitment of such Lender at such time but shall, subject to any other
provisions of this Agreement, automatically be increased by the amount of any
portion of its Ancillary Facility Commitment which ceases to be made available
to the relevant Borrowers for any reason (other than as a result of Utilisation
of it) in accordance with the terms of such Ancillary Facility or is cancelled
pursuant to paragraphs (f) or (g) above.


 


6.2          Operation of Ancillary Facilities


 


(a)           Subject to paragraph (b) below, the
terms governing the operation of any Ancillary Facility (including the rate of
interest (including default interest), fees, commission and other remuneration
in respect of such Ancillary Facility) shall be those determined by agreement
between the Ancillary Facility Lender and the relevant Borrower, provided that
such terms shall be based upon the normal commercial terms and market rates of
the relevant Ancillary Facility Lender.


 


(b)           In the case of any inconsistency or
conflict between the terms of any Ancillary Facility, the applicable Ancillary
Facility Documents and this Agreement, the terms and provisions of the
applicable Ancillary Facility Document shall prevail unless the contrary
intention is expressly provided for in this Agreement.


 


66

















 


(c)           Each relevant Borrower and Ancillary
Facility Lender will promptly upon request by the Facility Agent, supply the
Facility Agent with such information relating to the operation of each
Ancillary Facility (including without limitation details of the Ancillary
Facility Outstandings and the Sterling Amount thereof) as the Facility Agent
may from time to time reasonably request (and each relevant Borrower consents
to such documents and information being provided to the Facility Agent and the
other Lenders).


 


6.3          Ancillary Facility Default


 


(a)           If a default occurs under any Ancillary
Facility, no Ancillary Facility Lender may demand repayment of any monies or
demand cash cover for any Ancillary Facility Outstandings, or take any
analogous action in respect of any Ancillary Facility, until the Acceleration
Date.


 


(b)           If an Acceleration Date occurs, the claims
of each Lender with a Revolving Facility Commitment and each Ancillary Facility
Lender in respect of amounts outstanding to them under the Revolving Facility
and Ancillary Facilities respectively shall be adjusted in accordance with this
Clause 6.3 by making all necessary transfers of such portions of such claims
such that following such transfers the Revolving Facility Outstandings and
Ancillary Facility Outstandings (together with the rights to receive interest,
fees and charges in relation thereto) of (i) each Lender with a Revolving
Facility Commitment and (ii) each Ancillary Facility Lender, in each case
as at the Acceleration Date shall be an amount corresponding pro rata to the proportion that the sum of such Lender’s
Revolving Facility Commitment and/or (as the case may be) Ancillary Facility
Commitment bears to the sum of all of the Revolving Facility Commitments and
the Ancillary Commitments, each as at the Acceleration Date.


 


(c)           No later than the third Business Day
following the Acceleration Date each of the Ancillary Facility Lenders shall
notify the Facility Agent in writing of the Sterling Amount of its Ancillary
Facility Outstandings as at the close of business on the Acceleration Date,
such amount to take account of any clearing of debits which were entered into the
clearing system of such Ancillary Facility Lenders prior to the Acceleration
Date and any amounts credited to the relevant accounts prior to close of
business on the Acceleration Date.


 


(d)           On receipt of the information referred to
in paragraph (c) above, the Facility Agent will promptly determine what
adjustment payments (if any) are necessary as between the Lenders participating
in the Revolving Facility and each Ancillary Facility Lender in order to ensure
that, following such adjustment payments, the requirements of paragraph (b) above
are complied with.


 


(e)           The Facility Agent will notify all the
Lenders as soon as practicable of its determinations pursuant to paragraph (d) above,
giving details of the adjustment payments required to be made.  Such adjustment payments shall be payable by
the relevant Lenders and shall be made to the Facility Agent within 3 Business
Days following receipt of such notification from the Facility Agent.  The Facility Agent shall distribute the
adjustment payments received, among the Ancillary Facility Lenders and the
Lenders participating in the Revolving Facility in order to satisfy the
requirements of paragraph (b) above.


 


(f)            If at any time following the Acceleration
Date, the amount of Revolving Facility Outstandings of any Lender or Ancillary
Facility Outstandings of any Ancillary Facility Lender used in the Facility
Agent’s calculation of the adjustments required under paragraph (d) above
should vary for any reason (other than as a result of currency exchange
fluctuation or other reason which affects all relevant Lenders equally),
further adjustment payments shall be made on the same basis (mutatis mutandis) provided for in this Clause 6.3.


 


67

















 


(g)           In respect of any amount paid by any Lender
(a “Paying Lender”) pursuant to
either of paragraphs (e) or (f) above, as between a relevant Borrower
and the Paying Lender, the amount so paid shall be immediately due and payable
by such relevant Borrower to the Paying Lender and the payment obligations of
such relevant Borrower to the Lender(s) which received such payment shall be
treated as correspondingly reduced by the amount of such payment.


 


(h)           Each Lender shall promptly supply to the
Facility Agent such information as the Facility Agent may from time to time
request for the purpose of giving effect to this Clause 6.3.


 


(i)            If an Ancillary Facility Lender has the
benefit of any Encumbrance securing any of its Ancillary Facilities, the
realisations from such security when enforced will be treated as an amount
recovered by such Ancillary Facility Lender in its capacity as a Lender which
is subject to the sharing arrangements in Clause 35 (Sharing
Among the Finance Parties) to the intent that such realisation
should benefit all Lenders pro rata.


 


7.             OPTIONAL CURRENCIES


 


7.1          Selection of Currency


 


Each relevant Borrower under the
Revolving Facility shall select the currency of a Revolving Facility Advance
made to it (which shall be Sterling, Dollars, euro or an Optional Currency) in the
Utilisation Request relating to the relevant Revolving Facility Advance.


 


7.2          Unavailability of Optional Currency


 


If before 10.00 a.m.
on the Quotation Date for the relevant Revolving Facility Advance:


 


(a)           a Lender notifies the Facility Agent that
the relevant Optional Currency is not readily available to it in the amount
required; or


 


(b)           a Lender notifies the Facility Agent that
compliance with its obligation to participate in the Revolving Facility Advance
in the proposed Optional Currency would contravene a Law or regulation
applicable to it, 


 


the Facility Agent
will promptly give notice to the relevant Borrower to that effect.  In this event, any Lender that gives notice
pursuant to this Clause 7.2 will be required to participate in the relevant Revolving
Facility Advance in Sterling (in an amount equal to that Lender’s Proportion of
the Sterling Amount of the relevant Revolving Facility Advance or, in respect
of a Rollover Advance, an amount equal to that Lender’s Proportion of the
Sterling Amount of any amount that the Lenders are actually required to advance
in accordance with Clause 8.2 (Rollover Advances)),
and its participation will be treated as a separate Advance denominated in
Sterling during that Term.


 


8.             REPAYMENT OF REVOLVING FACILITY OUTSTANDINGS


 


8.1          Repayment of Revolving Facility Advances


 


Each relevant Borrower shall
(subject to Clause 8.2 (Rollover Advances))
repay the full amount of each Revolving Facility Advance drawn by it on its
Repayment Date.


 


8.2          Rollover Advances


 


Without prejudice
to each relevant
Borrower’s obligation to repay the full amount of each Revolving Facility
Advance made to it on the applicable Repayment Date, where, on the same day on
which such relevant
Borrower is due to repay a Revolving Facility Advance (a “Maturing Advance”) such 


 


68

















 


relevant Borrower has also requested
that a Revolving Facility Advance in the same currency as and in an amount
which is equal to or less than the Maturing Advance be made to it (a “Rollover Advance”), subject to the Lenders
being obliged to make such Rollover Advance under Clause 4.1 (Conditions to Utilisation), the amount to be so repaid and
the amount to be so drawn down shall be netted off against each other so that
the amount which such relevant
Borrower is actually required to repay on the applicable Repayment Date shall
be the net amount remaining after such netting off.


 


8.3          Cash Collateralisation of Documentary Credits


 


A relevant Borrower may give
the Facility Agent not less than 5 Business Days’ prior written notice of its
intention to repay all or any portion of a Documentary Credit requested by it
and, having given such notice, shall procure that the relevant Outstanding L/C
Amount in respect of such Documentary Credit is reduced in accordance with such
notice by providing cash cover therefor in accordance with Clause 1.8 (Documentary Credits) (in each case,) or by reducing the
Outstanding L/C Amount of such Documentary Credit or by cancelling such
Documentary Credit and returning the original to the L/C Bank or the Facility
Agent on behalf of the Lenders.


 


8.4          Final Repayment


 


The Company shall
procure that all amounts outstanding under the Revolving Facility shall be
repaid in full on its Final Maturity Date.


 


9.             REPAYMENT OF TERM FACILITY
OUTSTANDINGS


 


9.1          Repayment of A Facility Outstandings and A1 Facility
Outstandings


 


The relevant
Borrowers shall make such repayments as may be necessary to ensure that on each
of the dates set out in the table below (each a “Repayment Date”) the aggregate Sterling Amount of the A
Facility Outstandings and A1 Facility Outstandings (as at the close of business
in London on the Merger Closing Date or the Baseball Effective Date, as
applicable) is reduced by an amount equal to the amount set out in the table
below (each, an “A Facility  Repayment Instalment” or an “A1 Facility Repayment Instalment” (as applicable)).


 


	
   

  	
   

  	
  Amount Repayable

  
	
  Repayment Date

  	
   

  	
  A Facility

  	
   

  	
  A1 Facility

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2007

  	
   

  	
  £225 million

  	
   

  	
  £12 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2008

  	
   

  	
  £225 million

  	
   

  	
  £12 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2008

  	
   

  	
  £225 million

  	
   

  	
  £12 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2009

  	
   

  	
  £250 million

  	
   

  	
  £15 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2009

  	
   

  	
  £450 million

  	
   

  	
  £25 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2010

  	
   

  	
  £500 million

  	
   

  	
  £27 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2010

  	
   

  	
  £550 million

  	
   

  	
  £30 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Final Maturity Date

  	
   

  	
  £775 million
  (or such other amounts outstanding in respect of the A Facility on the Final
  Maturity Date.)

  	
   

  	
  £42 million
  (or such other amounts outstanding in respect of the A1 Facility on the Final
  Maturity Date.)

  



 


69

















 


9.2          No Reborrowing of A Facility Advances or A1 Facility
Advances


 


No Borrower may
reborrow any part of any A Facility Advance or the A1 Facility Advance which is
repaid.


 


9.3          Repayment of B1 Facility Outstandings


 


The US Borrower and/or Baseball Cash Bidco (as
applicable) shall repay the aggregate outstanding principal amount of the B1
Facility Advances in full in one installment on its Final Maturity Date (the “B1 Facility Repayment Date”).


 


10.          CANCELLATION


 


10.1        Voluntary Cancellation


 


The Company may, by
giving to the Facility Agent not less than 3 Business Days’ prior written
notice to that effect (unless an Instructing Group has given its prior consent
to a shorter period or, with respect to the A1 Facility and the B1 Facility, a
Baseball Instructing Group) cancel any Available Facility in whole or any part
(but if in part, in an amount that reduces the Sterling Amount of such Facility
by a minimum amount of £5,000,000 and an integral multiple of £1,000,000) and
any such cancellation shall (subject to the provisions of Clause 6.1(g) (Utilisation of Ancillary Facilities), reduce the relevant
Available Commitments of the Lenders rateably.


 


10.2        Notice of Cancellation


 


Any notice of
cancellation given by the Company pursuant to Clause 10.1 (Voluntary
Cancellation) shall be irrevocable and shall specify the date upon
which such cancellation is to be made and the amount of such cancellation.


 


10.3        Cancellation of Available Commitments


 


(a)           On each Termination Date any Available
Commitments in respect of the Facility to which such Termination Date relates
shall automatically be cancelled and the Commitment of each Lender in relation
to such Facility shall automatically be reduced to zero.


 


(b)           No Available Commitments which have been
cancelled hereunder may thereafter be reinstated.


 


11.          VOLUNTARY PREPAYMENT


 


11.1        Voluntary Prepayment


 


(a)           Any Borrower may, by giving to the Facility
Agent not less than 5 Business Days’ prior written notice to that effect
(unless an Instructing Group, or in the case of an A1 Facility Advance and/or
B1 Facility Advance, a Baseball Instructing Group) has given its prior consent
to a shorter period):


 


70

















 


(i)            repay the A Facility Advance or A1 Facility
Advance (as applicable) drawn by it in whole or in part (but if in part, in an
amount that reduces the Sterling Amount of the A Facility Advance or A1
Facility Advance (as applicable) by a minimum amount of £5,000,000 and an
integral multiple of £1,000,000) together with accrued interest on the amount
repaid without premium or penalty but subject to the payment of any Break Costs
(if applicable); and


 


(ii)           repay the B1 Facility Advance drawn by it
in whole or in part (but if in part, in an amount that reduces the Sterling
Amount of the B1 Facility Advance by a minimum amount of £5,000,000 and an
integral multiple of £1,000,000), together with accrued interest on the amount
repaid without premium or penalty but subject to the payment of any Break Costs
(if applicable) and subject to a 1.00% prepayment premium payable on the
principal amount being repaid during the first 18 months from the Merger
Closing Date.


 


(b)           Without prejudice to the provisions of
paragraph (a) above, the Company may at its option at any time on or prior
to 31 December 2006, refinance the whole (but not part only) of any A1
Facility Outstandings and B1 Facility Outstandings from the proceeds of a Stand
Alone Baseball Financing


 


11.2        Right of Prepayment and Cancellation in relation to a single Lender


 


If any sum payable
to any Lender by an Obligor is required to be increased under Clause 17.1 (Tax Gross-up) or a Lender claims indemnification from a
Borrower under the provisions of Clause 17.3 (Tax
Indemnity) or Clause 18.1 (Increased Costs)
that Borrower may elect by providing, at least 5 Business Days’ prior
notice of its intention to repay or to cause to be repaid such Lender’s share
of the Outstandings to the Facility Agent, to repay such Lender’s share of the
Outstandings on a non-pro rata basis and immediately to cancel any Commitments
then outstanding of such Lender.  In such
event, such Borrower shall procure that, on the last day of each of the then
current Interest Periods or Terms (as the case may be) such Lender’s portion of
each Advance to which each such Interest Period or Term relates is repaid and
if the relevant Lender is also an L/C Bank, such Borrower shall procure that
the relevant Outstanding L/C Amount(s) are reduced to zero and if the relevant
Lender is also an Ancillary Facility Lender, such Borrower shall repay the
relevant Ancillary Facility Outstandings in full.


 


11.3        Application of Repayments


 


(a)           To the extent applicable, any repayment
made pursuant to Clauses 11.1 (Voluntary Prepayment),
12.2 (Repayment from Net Proceeds),
12.4 (Repayment from Excess Cash Flow),
12.5 (Repayment from Debt Proceeds)
and 12.6 (Repayment from Equity Proceeds)
and, to the extent applicable, any repayment made under Clause 12.7 (Repayments from Securitisations) under the
circumstances set out therein, shall be applied at the end of the Interest
Period or Term current at the time of receipt of such proceeds subject to
paragraph (c) below, firstly, in repayment of the Term Facility
Outstandings pro rata to the aggregate amount
of A Facility Outstandings, A1 Facility Outstandings and B1 Facility
Outstandings on the date of such repayment until all A Facility Outstandings,
all A1 Facility Outstandings and all B1 Facility Outstandings have been repaid in
full and, secondly, in repayment of Revolving Facility Outstandings on the date
of such repayment.


 


(b)           Any repayment of A Facility Outstandings or
the A1 Facility Outstandings (as applicable) made pursuant to paragraph (a) shall
either:


 


(i)            reduce each of the remaining Repayment
Instalments for the A Facility or the A1 Facility (as applicable) on a pro rata basis; or


 


71

















 


(ii)           at the election of the Company made on or
prior to the date upon which such repayment of the A Facility Outstandings or
the A1 Facility Outstandings is made pursuant to paragraph (a) above,
repay the immediately succeeding four Repayment Instalments for the A Facility
and/or the A1 Facility in chronological order of maturity, and thereafter in
respect of any excess, reduce each of the remaining Repayment Instalments for
the A Facility or the A1 Facility on a pro rata basis.


 


(c)           Without prejudice to the provisions of
paragraph (a) above, any Lender under the B1 Facility (a “B1 Facility Lender”), may at its sole
discretion during the first 18 months from the Merger Closing Date (other than
in the case of a prepayment in full of the B1 Facility) notify the Facility
Agent at least 3 Business Days in advance that it does not wish to receive its
share of the prepayment of the B1 Facility Outstandings to be made pursuant to
paragraph (a), at the time such prepayment is to be made.  In the event of such notification, the amount
which would have been applied in prepaying such B1 Facility Lender shall
instead be applied in prepayment to the Lenders of the A Facility, the A1
Facility and any non-declining B1 Facility Lenders on a pro rata
basis. 


 


(d)           Any repayment of any Revolving Facility
Outstandings under this Agreement shall be applied first against Revolving
Facility Advances and when all Revolving Facility Advances have been repaid in
full, to provide cash collateral in respect of any Outstanding L/C Amounts.


 


11.4        Release from Obligation to make Advances


 


A Lender for whose
account a repayment is to be made under Clause 11.2 (Right of
Prepayment and Cancellation in relation to a single Lender) shall
not be obliged to participate in the making of Advances (including Revolving
Facility Advances) or in the issue or counter-guarantee in respect of
Documentary Credits or in the provision of Ancillary Facilities on or after the
date upon which the Facility Agent receives the relevant notice of intention to
repay such Lender’s share of the Outstandings, on which date all of such Lender’s
Available Commitments shall be cancelled and all of its Commitments shall be
reduced to zero.


 


11.5        Notice of Repayment


 


Any notice of
repayment given by a Borrower pursuant to Clauses 11.1 (Voluntary
Prepayment) or 11.2 (Right of Prepayment and
Cancellation in relation to a single Lender) shall be irrevocable,
shall specify the date upon which such repayment is to be made and the amount
of such repayment and shall oblige that Borrower to make such repayment on such
date.


 


11.6        Restrictions on Repayment


 


No Borrower may
repay all or any part of any Advance (including, at any time, a Revolving
Facility Advance) except at the times and in the manner expressly provided for
in this Agreement.


 


11.7        Cancellation upon Repayment


 


No amount repaid
under this Agreement may subsequently be reborrowed other than any amount of a
Revolving Facility Advance repaid in accordance with Clause 8.1 (Repayment of Revolving Facility Advances) or any Documentary
Credit repaid in accordance with this Agreement on or prior to the Final
Maturity Date in respect of the Revolving Facility and upon any repayment
(other than in respect of a Revolving Facility Advance, as aforesaid) the
availability of the relevant Facility shall be reduced by an amount
corresponding to the amount of such repayment and the Available Commitment of
each Lender in relation to that Facility shall be cancelled in an amount equal
to such Lender’s Proportion of the amount repaid.  For the avoidance of doubt, unless expressly
agreed to the contrary in the relevant Ancillary Facility Documents, this
Clause 11.7 shall not apply to any Ancillary Facility.


 


72

















 


12.          MANDATORY PREPAYMENT AND
CANCELLATION


 


12.1        Change of Control


 


If a Change of
Control occurs, all of the Available Commitments shall immediately be
cancelled, the Commitments of each Lender in respect of each Facility shall be
reduced to zero and the Company shall procure that the Outstandings are
immediately repaid in full together with unpaid interest accrued thereon and all
other amounts payable pursuant to Clause 31 (Borrowers’
Indemnities) and any other provision of this Agreement.


 


12.2        Repayment from Net Proceeds


 


(a)           The Company shall procure that, subject to
paragraph (b) below or unless the Facility Agent (acting on the
instructions of an Instructing Group) otherwise agrees, an amount equal to the
Net Proceeds received:


 


(i)            by any member of the Bank Group in respect
of any Disposal of such member’s assets or business in aggregate in excess of
£30 million (or its equivalent in other currencies) in
any financial year of the Company; or


 


(ii)           by any member of the Bank Group in respect
of any insurance policy in aggregate exceeding £15 million (or its equivalent in other
currencies) in any financial year of the Company,


 


is applied in or towards repayment of the Outstandings
in accordance with Clause 11.3 (Application of Repayments)
at the end of the Interest Period next ending on or after the 10th
Business Day following the date of receipt of such Net Proceeds.


 


(b)           Paragraph (a) shall not apply to Net
Proceeds arising:


 


(i)            from a Disposal where such Net Proceeds are
used for the acquisition of or reinvestment in assets used or useful in the
Group Business or in a business whose primary operations are directly related to
the Group Business or are applied towards capital expenditure of the Bank
Group, in each case, within 12 months of the date of the receipt of such Net
Proceeds and to the extent not otherwise restricted by the provisions of this
Agreement;


 


(ii)           from any Disposal permitted under Clause
25.6 (Disposals) other than in relation to
Disposals permitted under paragraphs (b) (with respect to surplus assets
only and where the Net Proceeds of such Disposal, or a series of Disposals
forming part of the same transaction exceeds £5,000,000), (j), (k), (o)(ii),
(p), (q), (s) and (w); 


 


(iii)         from any insurance recovery, where the Net
Proceeds arising out of the same are to be applied within 12 months of receipt
in replacing, reinstating or repairing the relevant damaged or destroyed assets
or in refinancing any expenditure incurred in the replacement, reinstatement
and/or repair of such assets or for the acquisition of or reinvestment in
assets acquired for use in the Group Business or in a business whose primary
operations are directly related to the Group Business for application towards
capital expenditure; or


 


(iv)          from any Content Transaction which shall
instead be applied as follows:


 


(A)          the first £200 million shall be retained
by the Bank Group and, provided that no Event of Default has occurred or would
arise as a result of such payment, may be applied towards the making of
Permitted Payments; 


 


73

















 


(B)          a percentage of the remainder shall be
applied in mandatory prepayment of the Term Facilities, such percentage being
determined in accordance with the Leverage Ratio as at the time of such
Disposal, in accordance with the following table:


 


	
  Leverage Ratio

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than 4.0:1

  	
   

  	
  50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than 3.0:1 but less than or equal
  to 4.0:1

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal to 3.0 : 1

  	
   

  	
  0

  	
  %

  



 


(C)          any Net Proceeds which are not
distributed in accordance with (A) above or required to be applied in
mandatory prepayment in accordance with (B) above, shall be retained
within the Bank Group,


 


provided that to
the extent that any Net Proceeds are not applied in accordance with
sub-paragraphs (i) or (iii) above (as applicable) within the
applicable time periods specified such amounts shall, subject to Clause 12.3 (Blocked Accounts), be applied in or towards repayment of
Outstandings in accordance with Clause 11.3 (Application
of Repayments).


 


12.3        Blocked Accounts


 


(a)           In relation to any amount in excess of £30
million of Net Proceeds referred to in paragraphs (b)(i) and (b)(iii) of
Clause 12.2 (Repayment from Net Proceeds), and any amount of Equity Proceeds
contributed to the Bank Group under sub-paragraph (b)(ii) of Clause 12.6 (Repayment from Equity Proceeds) pending the acquisition,
reinvestment, replacement, reinstatement or repair or application towards any
capital expenditure, acquisition or investment as contemplated by such
provisions, all such amounts shall be deposited in a Blocked Account.


 


(b)           At the election of the relevant Borrower,
any amounts required to be prepaid under Clause 12.2 (Repayment
from Net Proceeds), Clause 12.4 (Repayment from Excess Cash
Flow), Clause 12.5 (Repayment from Debt
Proceeds), Clause 12.6 (Repayment from Equity
Proceeds) or Clause 12.7 (Repayment from
Securitisations) may be deposited into a Blocked Account upon
receipt thereof and applied by the Facility Agent in repayment of the
Outstandings in accordance with Clause 11.3 (Application
of Repayments), at the end of the then applicable Interest
Period.  


 


(c)           While there are any Outstandings or any of
the Commitments are available for drawing, no amount shall be withdrawn from
any Blocked Account by any member of the Group or the Facility Agent except
for:


 


(i)            amounts to be applied (and which are then
applied) in accordance with paragraph (a) above;


 


(ii)           amounts to be applied (and which are then
applied) in accordance with paragraph (b) above; or 


 


(iii)         following the Acceleration Date,
applications by the Facility Agent of the whole or any part of the sums
standing to the credit of a Blocked Account in or towards payment of any sums
due and unpaid at any time from any Obligor under any Finance Document.


 


74

















 


12.4        Repayment from Excess Cash Flow


 


(a)           The Company shall ensure that, to the
extent Excess Cash Flow exceeds £25 million in any financial year (from and
including the financial year ended 31 December 2006) of the Company,
subject to paragraphs (b) and (c) below, an amount equal to:


 


(i)            50% of Excess Cash Flow in such financial year
of the Company, in the event that the Compliance Certificate delivered pursuant
to Clause 22.5 (Compliance Certificates) and the
annual financial information delivered pursuant to Clause 22.1 (Financial Statements) demonstrate that the
ratio of Consolidated Net Debt as at the end of such financial year to
Consolidated Operating Cashflow for such financial year is greater than or
equal to 4:1; or


 


(ii)           25% of Excess Cash Flow in such financial
year of the Company, in the event that the Compliance Certificate delivered
pursuant to Clause 22.5 (Compliance Certificates)
and the annual financial information delivered pursuant to Clause 22.1 (Financial Statements) demonstrate that the
ratio of Consolidated Net Debt as at the end of such financial year to Consolidated
Operating Cashflow for such financial year, is less than 4:1 but more than or
equal to 3.0:1,   


 


is, subject to paragraph (c) of Clause 12.3 (Blocked Accounts), applied within 10 Business Days of the
filing by the Ultimate Parent of its audited financial statements, provided
that any such payment may be deferred by a period of up to 30 days if the
management of the Ultimate Parent, acting reasonably and in good faith, are
able to demonstrate to the satisfaction of the Facility Agent (acting reasonably)
that the cash reserves of the Group would be reduced temporarily by such
payment to below £200 million (for this purpose disregarding any availability
under the Revolving Facility).


 


(b)           Subject to paragraph (c) below, no
repayments shall be required under paragraph (a) above in the event that
the Compliance Certificate most recently delivered pursuant to Clause 22.5 (Compliance Certificates) and the annual financial
information delivered pursuant to Clause 22.1 (Financial Statements) demonstrate that the ratio of
Consolidated Net Debt as at the end of such financial year to Consolidated
Operating Cashflow for the relevant financial year, is less than 3:1.


 


(c)           In respect of the financial year ended 31 December 2006,
the calculation of any Excess Cash Flow pursuant to paragraphs (a) and (b) above,
shall be calculated by reference to the Excess Cash Flow for the period
commencing on but excluding the Merger Closing Date (or, in the case of Excess
Cash Flow attributable to that part of Bank Group Cash Flow attributable to the
Baseball Group, the Baseball Effective Date) to and including 31 December 2006.


 


12.5        Repayment from Debt Proceeds


 


(a)           The Ultimate Parent shall, subject to
paragraph (c) of Clause 12.3 (Blocked Accounts)
and paragraph (b) below (or to the Facility Agent (acting on the
instructions of an Instructing Group) having otherwise agreed), procure that
50% of Debt Proceeds raised by any member of the Group in connection with any
single raising of Debt Proceeds which exceeds £10 million shall be applied
in prepayment of Outstandings, in accordance with Clause 11.3 (Application of Repayments) within 10 Business Days following
receipt of such Debt Proceeds.


 


(b)           Paragraph (a) above shall not apply
to:


 


(i)            any Financial Indebtedness raised under the
Bridge Facility Agreement, the Alternative Bridge Facility Agreement, the
Exchange Notes or the NTL High Yield 


 


75

















 


Notes, and in the case of the latter up to the
aggregate of (A) the aggregate principal amount outstanding under the
Bridge Facility or the Alternative Bridge Facility (as the case may be), (B) any
accrued interest thereon, (C) any contractual premium payable in respect
thereof and (D) any fees, costs, expenses, commissions and other similar
charges reasonably incurred in connection with such financing;


 


(ii)           any Financial Indebtedness raised in
connection with any High Yield Debt Refinancing;


 


(iii)         any Financial Indebtedness in respect of
any Hedging Agreement entered into by any member of the Group;


 


(iv)          any Financial Indebtedness raised by any
member of the Group from any other member of the Group to the extent not
otherwise prohibited by this Agreement;


 


(v)            any Financial Indebtedness to the extent
raised by any member of the Bank Group which is permitted by Clause 25.4 (Financial Indebtedness);


 


(vi)          Financial Indebtedness constituting Parent
Debt which is incurred in compliance with the provisions of Clause 25.18 (Parent Debt);


 


(vii)         any Financial Indebtedness to the extent
raised by any member of the Group (other than a member of the Bank Group) the
proceeds of which are contributed to the Bank Group in accordance with Clause
24.15 (Contributions to the Bank Group);


 


(viii)        any Financial Indebtedness constituting any
“daylight loans” which are expressly contemplated by the Steps Paper (and as
such term is defined or referred to therein);


 


(ix)          any net cash proceeds of any debt issuances
which are expressly contemplated in the Steps Paper;


 


(x)           with the prior written consent of an Instructing
Group, any Financial Indebtedness raised by any member of the Group which is
not a member of the Bank Group, the proceeds of which shall be applied towards
the financing of an acquisition to be made by such person or any other member
of the Group which is not a member of the Bank Group; 


 


(xi)          any Financial Indebtedness which
constitutes Merger Indebtedness;


 


(xii)         any Financial Indebtedness contemplated by
the provisions of the Commitment Letter and to be incurred following delivery
of a Structure Notice;


 


(xiii)       any Financial Indebtedness raised by any
Permitted Joint Venture; 


 


(xiv)        any proceeds of any Stand Alone Baseball
Financing; or 


 


(xv)          any proceeds of any Alternative Baseball
Financing,


 


provided that in the case of sub-paragraph (vii) above,
such Debt Proceeds shall within 90 days of receipt thereof, be
contributed into the Bank Group and deposited into a Blocked Account as
contemplated by Clause 12.3 (Blocked
Accounts) and if not applied within 90 days after such deposit
shall, subject to paragraph (b) of Clause 12.3 (Blocked
Accounts), be applied in or towards repayment of Outstandings in
accordance with Clause 11.3 (Application of Repayments).


 


76

















 


12.6        Repayment from Equity Proceeds


 


(a)           The Ultimate Parent shall procure that
subject to paragraph (c) of Clause 12.3 (Blocked
Accounts) and paragraph (b) below, an amount equal to:


 


(i)            50% of Equity Proceeds, in the event that
the Compliance Certificate most recently delivered pursuant to Clause 22.5 (Compliance Certificates) and the quarterly financial
information delivered pursuant to Clause 22.1 (Financial
Statements) for each Financial Quarter ending on the Quarter Date to
which such Compliance Certificate relates demonstrate that the ratio of
Consolidated Net Debt as at such Quarter Date to Consolidated Operating
Cashflow for the Financial Quarter ending on such Quarter Date, calculated on
an annualised basis, is more than 3.5:1; 


 


(ii)           25% of Equity Proceeds, in the event that
the Compliance Certificate most recently delivered pursuant to Clause 22.5 (Compliance Certificates) and the quarterly financial
information delivered pursuant to Clause 22.1 (Financial
Statements) for each Financial Quarter ending on the Quarter Date to
which such Compliance Certificate relates demonstrate that the ratio of
Consolidated Net Debt as at such Quarter Date to Consolidated Operating
Cashflow for the Financial Quarter ending on such Quarter Date calculated on an
annualised basis, is 3.5:1 or less but is more than 3:1; or


 


(iii)         0% of Equity Proceeds, in the event that
the Compliance Certificate most recently delivered pursuant to Clause 22.5 (Compliance Certificates) and the quarterly financial
information delivered pursuant to Clause 22.1 (Financial
Statements) for each Financial Quarter ending on the Quarter Date to
which such Compliance Certificate relates demonstrate that the ratio of
Consolidated Net Debt as at such Quarter Date to Consolidated Operating
Cashflow for the Financial Quarter ending on such Quarter Date calculated on an
annualised basis, is equal to or less than 3:1,


 


shall be contributed to a member of the Bank Group in
accordance with Clause 24.15 (Contributions
to the Bank Group) and applied in or towards repayment of A Facility
Outstandings in accordance with Clause 11.3 (Application
of Repayments), in each case, within 10 Business Days following
receipt of such Equity Proceeds provided that no amount of Equity Proceeds
shall be required to be prepaid under this paragraph (a) unless the amount
of Equity Proceeds received by the Group in connection with any single raising
of Equity Proceeds exceeds £10 million (or its equivalent in other currencies).


 


(b)           Paragraph (a) shall not apply
to any Equity Proceeds:


 


(i)            to the extent that any Borrower has made a
voluntary prepayment of the Outstandings in accordance with Clause 11.1 (Voluntary Prepayment) using the proceeds
of any Parent Debt (the “Voluntary Prepayment
Amount”) and, in the case of the Revolving Facility Outstandings,
the aggregate Revolving Facility Commitments have been permanently cancelled by
an amount equal to the amount of Revolving Facility Outstandings so prepaid and
such Equity Proceeds are applied in prepayment of the Parent Debt so used;


 


(ii)           to the extent contributed to or invested in
the Bank Group in accordance with Clause 24.15 (Contributions to the Bank Group) and thereafter applied by
the ultimate recipient thereof towards capital expenditure or the purchase
price of any acquisition or investment to the extent permitted by Clause 25.13
(Acquisitions and Investments);


 


(iii)         to the extent raised by any member of the
Group which is a Joint Venture but which 


 


77

















 


is not a member of the Bank Group and applied for its
own purposes; 


 


(iv)          arising from the exercise of stock options
or any similar securities issued to directors, officers, employees or
consultants of any member of the Group; 


 


(v)            in respect of any equity issuance expressly
contemplated in the Steps Paper; or


 


(vi)          in respect of any New Equity issued by the
Ultimate Parent and applied for the purposes permitted under Clause 23.3 (Equity Cure Right) or paragraph (o) of Clause 25.13 (Acquisitions and Investments),


 


provided that in the case of sub-paragraph (ii) above,
such Equity Proceeds shall immediately upon their contribution into the
Bank Group, be deposited into a Blocked Account and if not applied in
accordance with sub-paragraph (ii), as the case may be, within 180 days of such
receipt, shall, subject to paragraph (b) of Clause 12.3 (Blocked Accounts) be applied in or towards repayment of
Outstandings in accordance with Clause 11.3 (Application
of Repayments).


 


12.7        Repayment from Securitisations 


 


All net cash
proceeds received by any member of the Bank Group in respect of any asset
securitisation permitted under paragraph (i) of Clause 25.6 (Disposals), shall be applied, first, to
permanently cancel the Available Revolving Facility Commitment in an amount
equal to such net cash proceeds received (with corresponding amount of cash
proceeds to be retained for use by any member of the Bank Group towards any
purpose determined by it) and, thereafter, be applied in permanent prepayment
of any Revolving Facility Outstandings or, to the extent that there are no Revolving
Facility Outstandings and the Available Revolving Facility Commitments have
been reduced to zero, in prepayment in accordance with Clause 11.3 (Application of Repayments).


 


12.8        Trapped Cash


 


If:


 


(a)           moneys are required to be applied in
prepayment or repayment of the Facilities under this Clause 12 (Mandatory Prepayments and Cancellation), but in order to be
so applied such moneys need to be upstreamed or otherwise transferred from one
member of the Group to another member of the Group to effect such prepayment or
repayment; and


 


(b)           the Company and the relevant members of the
Group determine in good faith that such moneys cannot be so upstreamed or
transferred without breaching a financial assistance prohibition, causing a
director to breach his or her fiduciary duties to a company or without
breaching some other legal prohibition, or such upstreaming or transfer is
otherwise unlawful or would result in material adverse tax consequences for the
Company or such relevant members of the Group,


 


then, there will be no obligation to make such payment
or prepayment until such impediment no longer applies, provided that:


 


(i)            during such period, (to the extent lawful)
the monies will be placed in a Blocked Account; 


 


(ii)           in the case of any impediment relating to
potential material adverse tax consequences, the Company shall procure that the
prepayment obligations under this Clause 12 (Mandatory
Prepayments and Cancellation), shall be complied with by using the
proceeds retained to repay Outstandings owing by the member of the Group which
received such proceeds provided that such payment itself does not create a
potential material adverse tax 


 


78

















 


consequence; and


 


(iii)         the Company and the relevant members of the
Group will use all reasonable endeavours to overcome any impediments described
in this Clause.


 


13.          INTEREST ON REVOLVING FACILITY
ADVANCES


 


13.1        Interest Payment Date for Revolving Facility Advances


 


On (a) each
Repayment Date (and, if the Term of any Revolving Facility Advance exceeds 6
months, on the expiry of each period of 6 months during such Term) or (b) if
Clause 17.2(d) applies, the relevant Confirmation Date, the relevant
Borrowers shall pay accrued interest on each Revolving Facility Advance made to
it.


 


13.2        Interest Rate for Revolving Facility Advances


 


The rate of
interest applicable to each Revolving Facility Advance during its Term shall be
the rate per annum which is the sum of the Revolving Facility Margin, the
Associated Costs Rate for such Advance at such time (if applicable) and, in
relation to any Revolving Facility Advance denominated in euro, EURIBOR, or in
relation to any Revolving Facility Advance denominated in any other currency,
LIBOR, for the relevant Term.


 


13.3        Margin Ratchet for Revolving Facility Advances


 


(a)           Subject to paragraph (c) of this
Clause 13.3, if in respect of any Quarter Date falling not less than 3 months
after the Merger Closing Date, the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow computed on the same basis as the ratio set out
in paragraph (a) of Clause 23.2 (Ratios)
is within the range of ratios set out in column 1 of the table set out below,
then the Revolving Facility Margin shall be reduced or increased to the
percentage rate per annum set out opposite the relevant range in column 2.


 


	
  Leverage Ratio

  	
   

  	
  Margin

  	
   

  
	
  Less than 3.00 : 1

  	
   

  	
  1.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.00 : 1 but less
  than 3.40 : 1

  	
   

  	
  1.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.40 : 1 but less
  than 3.80 : 1

  	
   

  	
  1.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.80 : 1 but less
  than 4.20 : 1

  	
   

  	
  1.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.20 : 1 but less
  than 4.50 : 1

  	
   

  	
  1.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.50 : 1 but less
  than 4.80 : 1

  	
   

  	
  1.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.80 : 1 but less
  than 5.00 : 1

  	
   

  	
  1.875

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 5.00

  	
   

  	
  2.000

  	
  %

  



 


(b)           Any reduction or increase to the Revolving
Facility Margin in accordance with paragraph (a) above shall take effect
in relation to Revolving Facility Advances with effect from the date of receipt
by the Facility Agent in respect of the relevant Quarter Date of:


 


(i)            the quarterly financial information
required to be delivered in accordance with Clause 22.1 (Financial Statements); and 


 


79

















 


(ii)           a Compliance Certificate required to be
delivered in accordance with Clause 22.5 (Compliance
Certificates) evidencing the relevant ratio of Consolidated Net Debt
to Consolidated Operating Cashflow, 


 


and shall apply
until the date of receipt by the Facility Agent of the quarterly financial
information and Compliance Certificate in respect of the next succeeding
Quarter Date on which the financial covenants are required to be tested
pursuant to Clause 23.2 (Ratios)
having regard to the provisions of paragraph (e) thereof (or if such
financial information and Compliance Certificate are not so delivered, the last
day upon which such financial information and Compliance Certificate should
have been so delivered in accordance with Clause 22.1 (Financial
Statements) and Clause 22.5 (Compliance
Certificates) in respect of such Quarter Date) whereupon the
Revolving Facility Margin shall be recalculated on the basis of such financial
information and Compliance Certificate.


 


(c)           Upon the occurrence of any Event of
Default, the Revolving Facility Margin shall revert to 2.00% and shall remain
at such rate for so long as such Event of Default is continuing and when such
Event of Default ceases to be continuing it shall revert:


 


(i)            in the case of an Event of Default set out
in paragraph (c) of Clause 27.2 (Covenants),
upon the date on which the Facility Agent has received a Compliance Certificate
confirming compliance with the financial covenants set out in Clause 23 (Financial Condition); or


 


(ii)           in the case of any other Event of Default
either (A) upon the date on which the Facility Agent has received a
certificate of a duly authorised officer of the Company certifying that such
Event of Default has been remedied, in which case, immediately upon receipt of
such certificate or (B) where the Lenders have waived such Event of
Default in accordance with the terms of this Agreement, immediately upon the
Facility Agent having confirmed to the Company that such Event of Default has
been waived,


 


in each case, to the applicable
rate provided in paragraph (a) above by reference to:


 


(x)           in the case of an
Event of Default of the type referred to in paragraph (c)(i) above, the
ratio of Consolidated Net Debt to Consolidated Operating Cashflow set out in
the Compliance Certificate referred to therein; or 


 


(y)           in the
case of any other Event of Default, the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow set out in the Compliance Certificate most
recently delivered to the Facility Agent prior to the remedy or waiver of such
Event of Default.


 


14.          INTEREST ON TERM FACILITY
ADVANCES


 


14.1        Interest Periods for Term Facility Advances


 


The period for
which a Term Facility Advance is outstanding shall be divided into successive
periods (each an “Interest Period”)
each of which (other than the first) shall start on the last day of the
preceding such period.


 


14.2        Duration


 


The duration of
each Interest Period shall, save as otherwise provided in this Agreement, be 1,
2, 3 or 6 months, or such other period of up to 12 months as all the Lenders
holding Commitments (in the case of the first Interest Period for a Term
Facility Advance, and thereafter, Outstandings under the 


 


80

















 


relevant Facility
may agree) in each case, as the relevant Borrower may select by no later than
2:00 p.m. on the date falling 3
Business Days before the first day of the relevant Interest Period, provided
that:


 


(a)           if such Borrower fails to give such notice
of selection in relation to an Interest Period, the duration of that Interest
Period shall, subject to the other provisions of this Clause 14, be
3 months;


 


(b)           prior to the Syndication Date, unless the
Facility Agent otherwise agrees, the duration of each Interest Period shall be
1 month (or, if less, such duration as may be necessary to ensure that such
Interest Period ends on the Syndication Date); and


 


(c)           any Interest Period that would otherwise
end during the month preceding or extend beyond a Repayment Date relating to
the Term Facility Outstandings shall be of such duration that it shall end on
that Repayment Date if necessary to ensure that there are Advances under the
relevant Term Facility with Interest Periods ending on the relevant Repayment
Date in a sufficient aggregate amount to make the repayment due on that
Repayment Date.


 


14.3        Consolidation of Term Facility Advances


 


If 2 or more
Interest Periods in respect of Term Facility Advances denominated in the same
currency under the same Term Facility end at the same time, then on the last day
of those Interest Periods, the Term Facility Advances to which those Interest
Periods relate shall be consolidated into and treated as a single Term Facility
Advance.


 


14.4        Division of Term Facility Advances


 


Subject to the
requirements of Clause 14.2 (Duration), the
Company may, by no later than 2:00 p.m. on the date falling 3 Business
Days before the first day of the relevant Interest Period, direct that any Term
Facility Advance borrowed by it shall, at the beginning of the next Interest
Period relating to it, be divided into (and thereafter, save as otherwise
provided in this Agreement, be treated in all respects as) 2 or more Advances
in such amounts (equal in aggregate to the Sterling Amount of the Term Facility
Advance being so divided) as shall be specified by the Company in such notice
provided that the Company shall not be entitled to make such a direction if:


 


(a)           as a result of so doing, there would be
more than 10 Advances outstanding under the relevant
Term Facility; or


 


(b)           any Term Facility Advance thereby coming
into existence would have a Sterling Amount of less than £25
million.


 


14.5        Payment of Interest for Term Facility Advances


 


On (a) the
last day of each Interest Period (or if such day is not a Business Day, on the
immediately succeeding Business Day in the then current month (if there is one)
or the preceding Business Day (if there is not)), and if the relevant Interest
Period exceeds 6 months, on the expiry of each 6 month period during that
Interest Period, or (b) if Clause 17.2(d) applies, the relevant
Confirmation Date, the relevant Borrower shall pay accrued interest on the Term
Facility Advance to which such Interest Period relates.


 


14.6        Interest Rate for Term Facility Advances


 


The rate of
interest applicable to a Term Facility Advance at any time during an Interest
Period relating to it shall be the rate per annum which is the sum of the
Applicable Margin, the Associated Costs Rate for such Advance at such time (if
applicable) and, LIBOR, for such Interest Period.


 


81

















 


14.7        Margin Ratchet for A Facility Advances and A1 Facility Advances


 


(a)           Subject to paragraph (c) of this
Clause 14.7, if in respect of any Quarter Date falling not less than 3 months
after the Merger Closing Date the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow computed on the same basis as the ratio set out
in paragraph (a) of Clause 23.2 (Ratios)
is within the range of ratios set out in column 1 of the table set out below,
then the A Facility Margin and the A1 Facility Margin shall be reduced or
increased to the percentage rate per annum set out opposite the relevant range
in column 2.


 


	
  Leverage Ratio

  	
   

  	
  Margin

  	
   

  
	
  Less than 3.00 : 1

  	
   

  	
  1.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.00 : 1 but less
  than 3.40 : 1

  	
   

  	
  1.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.40 : 1 but less
  than 3.80 : 1

  	
   

  	
  1.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.80 : 1 but less
  than 4.20 : 1

  	
   

  	
  1.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.20 : 1 but less
  than 4.50 : 1

  	
   

  	
  1.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.50 : 1 but less
  than 4.80 : 1

  	
   

  	
  1.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.80 : 1 but less
  than 5.00 : 1

  	
   

  	
  1.875

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 5.00

  	
   

  	
  2.000

  	
  %

  



 


(b)           Any reduction or increase to
the A Facility Margin or A1 Facility Margin in accordance with paragraph (a) above
shall take effect in relation to A Facility Advances or A1 Facility Advances
with effect from the date of receipt by the Facility Agent in respect of the
relevant Quarter Date of:


 


(i)            the quarterly financial
information required to be delivered in accordance with Clause 22.1 (Financial Statements); and 


 


(ii)           a Compliance Certificate
required to be delivered in accordance with Clause 22.5 (Compliance Certificates) evidencing the
relevant ratio of Consolidated Net Debt to Consolidated Operating Cashflow, 


 


and shall apply
until the date of receipt by the Facility Agent of the quarterly financial
information and Compliance Certificate in respect of the next succeeding
Quarter Date on which the financial covenants are required to be tested
pursuant to Clause 23.2 (Ratios)
having regard to the provisions of paragraph (e) thereof (or if such
financial information and Compliance Certificate are not so delivered, the last
day upon which such financial information and Compliance Certificate should
have been so delivered in accordance with Clause 22.1 (Financial
Statements) and Clause 22.5 (Compliance
Certificates) in respect of such Quarter Date) whereupon the A
Facility Margin or the A1 Facility Margin, as applicable shall be recalculated
on the basis of such financial information and Compliance Certificate.


 


(c)           Upon the occurrence of any Event of
Default, the A Facility Margin or the A1 Facility Margin shall revert to 2.00%
and shall remain at such rate for so long as the Event of Default is continuing
and when such Event of Default ceases to be continuing it shall revert:


 


(i)            in the case of an Event of Default set out
in paragraph (c) of Clause 27.2 (Covenants),
upon the date on which the Facility Agent has received a Compliance Certificate



 


82

















 


confirming compliance with the financial covenants set
out in Clause 23 (Financial Condition);
or


 


(ii)           in the case of any other Event of Default
either (A) upon the date on which the Facility Agent has received a
certificate of a duly authorised officer of the Company certifying that such
Event of Default has been remedied, immediately upon receipt of such
certificate or (B) where the Lenders have waived such Event of Default in
accordance with the terms of this Agreement, immediately upon the Facility
Agent having confirmed to the Company that such Event of Default has been
waived,


 


in each case, to the
applicable rate provided in paragraph (a) above by reference to:


 


(x)           in the case of an Event
of Default of the type referred to in paragraph (c)(i) above, the ratio of
Consolidated Net Debt to Consolidated Operating Cashflow set out in the
Compliance Certificate referred to therein; or 


 


(y)           in the
case of any other Event of Default, the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow set out in the Compliance Certificate most
recently delivered to the Facility Agent prior to the remedy or waiver of such
Event of Default.


 


14.8        Notification 


 


The Facility Agent
shall promptly notify the relevant Borrowers and the Lenders of each
determination of LIBOR, EURIBOR, the Associated Costs Rate, and any change to
the proposed length of a Term or Interest Period or any interest rate
occasioned by the operation of Clause 15 (Market
Disruptions and Alternative Interest Rates).


 


15.          MARKET DISRUPTION AND ALTERNATIVE
INTEREST RATES


 


15.1        Market Disruption


 


If, in relation to
any Interest Period or Term:


 


(a)           EURIBOR or LIBOR, as the case may be, is to
be determined by reference to the Reference Banks and, at or about 11.00 a.m.
(Brussels time in the case of EURIBOR or London time in the case of LIBOR) on
the Quotation Date for such Interest Period or Term, none or only one of the
Reference Banks supplies a rate for the purpose of determining EURIBOR or
LIBOR, as the case may be, for the relevant period; or


 


(b)           before the close of business in London on
the Quotation Date for such Interest Period or Term, the Facility Agent has
been notified by a Lender or each of a group of Lenders to whom in aggregate
40% or more of the relevant Advance is owed (or, in the case of an undrawn
Advance, if made, would be owed) that the cost to it of obtaining matching
deposits for the relevant Advance in the Relevant Interbank Market would be in
excess of EURIBOR or LIBOR, as the case may be,


 


then the Facility
Agent shall notify the Company and the Lenders of such event and,
notwithstanding anything to the contrary in this Agreement, Clause 15.2 (Substitute Interest Period or Term and Interest Rate) shall
apply (if the relevant Advance is a Term Facility Advance which is already
outstanding or a Rollover Advance).  If
either paragraph (a) or (b) applies to a proposed Advance other than
a Rollover Advance, such Advance shall not be made.


 


83






 













 


15.2                        Substitute Interest Period or
Term and Interest Rate


 


(a)                                  If paragraph (a) of
Clause 15.1 (Market Disruption) applies, the
duration of the relevant Interest Period or Term shall be 1 month or, if less,
such that it shall end on the Termination Date in respect of the Revolving
Facility (in the case of a Rollover Advance) or the next succeeding Repayment
Date (in the case of a Term Facility Advance).


 


(b)                                  If either paragraph of Clause
15.1 (Market Disruption) applies to an
Advance, the rate of interest applicable to each Lender’s portion of such
Advance during the relevant Interest Period or Term shall (subject to any
agreement reached pursuant to Clause 15.3 (Alternative Rate))
be the rate per annum which is the sum of:


 


(i)                                    the Applicable Margin;


 


(ii)                                the rate per annum notified to
the Facility Agent by such Lender before the last day of such Interest Period
or Term to be that which expresses as a percentage rate per annum the cost to
such Lender of funding from whatever sources it may reasonably select its
portion of such Advance during such Interest Period or Term; and


 


(iii)                            the Associated Costs Rate, if
any, applicable to such Lender’s participation in the relevant Advance.


 


15.3                        Alternative Rate


 


If Clause 15.1 (Market Disruption) applies and the Facility
Agent or the Company so requires, the Facility Agent and the Company shall
enter into negotiations with a view to agreeing an alternative basis:


 


(a)                                  for determining the rate of
interest from time to time applicable to such Advances; and/or


 


(b)                                  upon which such Advances may
be maintained (whether in Sterling or some other currency) thereafter,


 


and any such
alternative basis that is agreed shall take effect in accordance with its terms
and be binding on each party to this Agreement, provided that the Facility
Agent may not agree any such alternative basis without the prior consent of
each Lender holding Outstandings under each applicable Facility, acting
reasonably.


 


16.                               COMMISSIONS AND FEES


 


16.1                        Commitment Fees


 


The Borrowers shall
pay to the Facility Agent for the account of each relevant Lender (other than
an Ancillary Facility Lender) a commitment commission on the aggregate amount
of such Lender’s Available Revolving Facility Commitment made available by it
(other than any Ancillary Facility) from day to day during the period beginning
on the Merger Closing Date and ending on the Termination Date for the Revolving
Facility, such commitment commission to be calculated at the lower of (a) a
rate of 0.75% per annum of the aggregate undrawn portion of the Revolving
Facility and (b) 50% of the Revolving Facility Margin from the Merger
Closing Date, payable in arrears on the last day of each successive period of 3
months which ends during such period and on the Termination Date for the
Revolving Facility.


 


84

















 


16.2                        Arrangement and Underwriting
Fee


 


The Company shall
pay to the Bookrunners the fees specified in the Senior Fees Letter at the
times and in the amounts specified in such letter.


 


16.3                        Agency Fee


 


The Company shall
pay to the Facility Agent and the Security Trustee for their own account the
fees specified in the letter dated on or about the date
of this Agreement from the Facility Agent to the Company at the times and in
the amounts specified in such letter.


 


16.4                        Documentary Credit Fee


 


Each Borrower
shall, in respect of each Documentary Credit issued on its behalf pay to the
Facility Agent for the account of each Indemnifying Lender (for distribution in
proportion to each Indemnifying Lender’s L/C Proportion of such Documentary
Credit) a documentary credit fee in the currency in which the relevant
Documentary Credit is denominated at a rate equal to the applicable Revolving
Facility Margin applied on the Outstanding L/C Amount in relation to such
Documentary Credit.  Such documentary
credit fee shall be paid in arrears on each Quarter Date during the Term of the
relevant Documentary Credit and on the relevant Expiry Date.  Accrued Documentary Credit fees shall also be
payable on the cancelled amount of any Revolving Facility Commitment
attributable to a Documentary Credit which is repaid in full at the time such
cancellation is effective, if the Revolving Facility Commitment is cancelled in
full and a Documentary Credit is repaid in full.


 


16.5                        L/C Bank Fee


 


Each relevant
Borrower shall pay:


 


(a)                                  to the Original L/C Bank a
fronting fee in respect of each Documentary Credit requested by it and issued
by the Original L/C Bank in the amount and at the times agreed in the letter
dated on or about the date of this Agreement between the Original L/C Bank and
the Company; and


 


(b)                                  to any other L/C Bank a
fronting fee in respect of each Documentary Credit requested by it and issued
by that L/C Bank, in the amount and at the times agreed in any letter entered
into between such L/C Bank and such Borrower.


 


17.                               TAXES


 


17.1                        Tax Gross-up


 


(a)                                  Each payment made by the
Parent or an Obligor under a Finance Document shall be made by it without any
Tax Deduction, unless a Tax Deduction is required by Law.  Any Tax Deduction in relation to any payment
due in any currency other than Sterling shall be calculated using the Facility
Agent’s Spot Rate of Exchange on the date such payment is made and the Parent
and the Obligors shall have no liability if any subsequent credit or refund
received by any Lender from any Tax Authority in relation thereto is in a
different amount (when converted to the non-Sterling currency on any date).


 


(b)                                  As soon as it becomes aware
that the Parent or an Obligor is or will be required by Law to make a Tax
Deduction (or that there is any change in the rate at which or the basis on
which such Tax Deduction is to be made) the Parent or the relevant Obligor
shall notify the Facility Agent accordingly. 
Similarly, a Lender shall notify the Facility Agent and the Parent upon
becoming so aware in respect of a payment payable to that Lender.


 


85

















 


(c)                                  If a Tax Deduction is required
by Law to be made by the Parent or an Obligor, the amount of the payment due
shall, unless paragraph (f) below applies, be increased to an amount so
that, after the required Tax Deduction is made, the payee receives an amount
equal to the amount it would have received had no Tax Deduction been required.


 


(d)                                  If a Tax Deduction is required
by Law to be made by the Facility Agent, the US Paying Agent or the Security
Trustee (other than by reason of the Facility Agent or the Security Trustee
performing its obligations as such under this Agreement through an office
located outside the United Kingdom or the US Paying Agent performing its
obligations as such through an office located outside the United States) from
any payment to any Finance Party which represents an amount or amounts received
from the Parent or an Obligor, either the Parent or that Obligor, as the case
may be, shall, unless paragraph (f) below applies, pay directly to that
Finance Party an amount which, after making the required Tax Deduction enables
the payee of that amount to receive an amount equal to the payment which it
would have received if no Tax Deduction had been required.


 


(e)                                  If a Tax Deduction is required
by Law to be made by the Facility Agent, the US Paying Agent or the Security
Trustee from any payment to any Finance Party under paragraph (d) above,
the Facility Agent, the US Paying Agent or the Security Trustee as appropriate
shall unless paragraph (g) below applies, make that Tax Deduction and
any payment required in connection with that Tax Deduction to the relevant
taxing authority within the time allowed and in the minimum amount required by
Law, and within 30 days of making either a Tax Deduction or any payment in
connection with that Tax Deduction, the Facility Agent, the US Paying Agent or
the Security Trustee as appropriate making that Tax Deduction or other payment
shall deliver to the relevant Borrower evidence that the Tax Deduction or other
payment has been made or accounted for to the relevant tax authority.


 


(f)                                    Neither the Parent nor any
Obligor is required to make a Tax Payment to a Lender under paragraphs (c) or
(d) above for a Tax Deduction in respect of tax imposed by the United
Kingdom on a payment of interest in respect of a participation in an Advance by
that Lender to any Borrower (other than the US Borrower) where that Lender is
not a Qualifying UK Lender on the date on which the relevant payment of
interest is due (otherwise than as a consequence of a Change in Tax Law) to the
extent that payment could have been made without a Tax Deduction if that Lender
had been a Qualifying UK Lender on that date.


 


(g)                                 Either the Parent or the
relevant Obligor which is required to make a Tax Deduction shall make that Tax
Deduction and any payment required in connection with that Tax Deduction to the
relevant taxing authority within the time allowed and in the minimum amount
required by Law.


 


(h)                                 Within 30 days of making
either a Tax Deduction or any payment required in connection with that Tax
Deduction, either the Parent or the relevant Obligor making that Tax Deduction
or other payment shall deliver to the Facility Agent or the US Paying Agent, as
appropriate, for the Finance Party entitled to the interest to which such Tax
Deduction or payment relates, evidence that the Tax Deduction or other payment
has been made or accounted for to the relevant tax authority.


 


17.2                        Lender Tax Status


 


(a)                                  Each Lender represents and
warrants to the Facility Agent and to each Borrower:


 


(i)                                    in the case of an Original
Lender, that as at the date of this Agreement, it has the tax status set out
opposite its name in Part 2 of Schedule 1 (Lender Tax
Status); or


 


86

















 


(ii)                                in the case of any other
Lender, that as at the relevant Transfer Date, it is:


 


(A)          a UK Bank Lender; 


 


(B)                               a UK Non-Bank Lender and falls within paragraph (a) or
(b) of the definition thereof; 


 


(C)          a UK Treaty Lender; or


 


(D)          a US Accession Lender,


 


as the same shall
be expressly indicated in the relevant Transfer Deed.


 


(b)                                  Each Lender expressed to be a “UK
Non-Bank Lender” in Part 2 of Schedule 1 (Lender Tax Status) or in the Transfer Deed pursuant to which
it becomes a Lender represents and warrants to:


 


(i)                                    the Facility Agent and to each
UK Borrower, on the date of this Agreement, or on the relevant Transfer Date
(as the case may be) that it is within paragraph (a) of the definition of
UK Non-Bank Lender on that date (unless, if it is not within paragraph (a), it
is within paragraph (b) of the definition of UK Non-Bank Lender on that
date, and has notified the Facility Agent of the circumstances by virtue of
which it falls within such paragraph (b) and has provided evidence of the
same to the Company if and to the extent requested to do so, by the Facility
Agent); and


 


(ii)                                the Facility Agent and to each
UK Borrower, that unless it notifies the Facility Agent and the Company to the
contrary in writing prior to any such date, its representation and warranty in
paragraph (i) of this Clause 17.2(b) is true in relation to that
Lender’s participation in each Advance made to such Borrower, on each date that
such UK Borrower makes a payment of interest in relation to such Advance.


 


(c)                                  (i)            A Lender that intends to qualify as a UK
Treaty Lender and either the Parent or the relevant Obligor that makes a
payment to which that Lender is entitled shall cooperate in completing any
procedural formalities as may be necessary for either the Parent or the
relevant Obligor to obtain authorisation to make that payment without a Tax
Deduction; provided, however, that nothing in this Clause 17.2(c)(i) shall
require a Lender to disclose any confidential information or information
regarding its business, tax affairs or tax computations (including, without
limitation, its tax returns or its calculations).


 


(ii)                                Any Lender that is not a “United States
person” (as such term is defined in Section 7701(a)(30) of the Code) and
that is entitled to payment from the US Borrower without a Tax Deduction for
United States federal withholding taxes, shall as soon as reasonably
practicable:


 


(1)                                 to the extent able to do so without
breaching any legal or regulatory restrictions or having to disclose any
confidential information, deliver to the US Borrower, with a copy to the
Facility Agent, upon the reasonable written request of the US Borrower, (i) two
accurate and complete originally executed US Internal Revenue Service Forms W-8BEN
or W-8ECI (or any successor), whichever is relevant, certifying such Lender’s
legal entitlement to an exemption or reduction from any Tax Deduction for US
federal withholding taxes with respect to all payments hereunder, or (ii) in
the case of each such Lender, if the Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code and cannot deliver either US
Internal Revenue 


 


87

















 


Service Form W-8ECI
or Form W-8BEN (certifying such Lender’s legal entitlement to an exemption
or reduction from any Tax Deduction for US federal withholding taxes) pursuant
to sub-paragraph (i) above, (x) a statement certifying that such
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of
the Code and (y) two accurate and complete originally executed copies of
US Internal Revenue Service Form W-8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying such Lender’s legal
entitlement to an exemption or reduction from any Tax Deduction for US federal
withholding taxes with respect to all payments hereunder; and


 


(2)                                 to the
extent able do so without breaching any legal or regulatory restrictions or
having to disclose any confidential information at such times, provide to the
US Borrower, with a copy to the Facility Agent) new Forms W-8BEN or W-8ECI (or
any successor), whichever is relevant, upon the expiration or obsolescence of
any previously delivered form to reconfirm any complete exemption from, or any
entitlement to a reduction in, any Tax Deduction for US federal withholding
taxes with respect to any payment hereunder. 


 


(iii)                            Any Lender that
is a “United States person” (as such term is defined in Section 7701(a)(30)
of the Code) and that is entitled to payment from the US Borrower, other than a
Lender that has a name that indicates that it is an “exempt recipient” (as such
term is defined in Section 1.6049-4(c)(1)(ii) of the United States
Treasury Regulations), shall as soon as reasonably practicable:


 


(1)                                 to the extent
able to do so without breaching any legal or regulatory restrictions or having
to disclose any confidential information, deliver to the US Borrower, with a
copy to the Facility Agent, upon the reasonable written request of the US
Borrower, (i) two accurate and complete originally executed US Internal
Revenue Service Forms W-9 (or any successor); and 


 


(2)                                 to the extent
able do so without breaching any legal or regulatory restrictions or having to
disclose any confidential information at such times, provide to the US
Borrower, with a copy to the Facility Agent, new Forms W-9 (or any successor),
whichever is relevant, upon the expiration or obsolescence of any previously
delivered form.  


 


(d)                                  (i)            If, in relation to any interest payment to a Lender on
an Advance made to a UK Borrower:


 


(A)                               that
Lender has confirmed to the relevant UK Borrower and to the Facility Agent
before that interest payment would otherwise fall due that:


 


(1)                                 it has
completed the necessary procedural formalities referred to in paragraph (c)(i) of
this Clause 17.2; and


 


(2)                                 H.M.
Revenue and Customs has not declined to issue the authorisation referred to in
the definition of “UK Treaty Lender” (the “Authorisation”)
to that Lender in relation to that Advance, or if the Inland Revenue has
declined, the Lender is disputing that decision in good faith; and


 


(B)          the relevant UK
Borrower has not received the Authorisation,


 


then, such Lender may elect, by not less than 5
Business Days’ prior confirmation in 


 


88

















 


writing to the Facility Agent, that such interest
payment (the “relevant Interest Payment”)
shall not be due and payable under Clause 13.1 (Interest Payment Date for Revolving Facility Advances) or
Clause 14.5 (Payment of Interest for Term
Facility Advances) (as applicable) until the date (the “Confirmation Date”) which is
5 Business Days after the earlier of:


 


(x)           the date on which
the Authorisation is received by the relevant UK Borrower;


 


(y)                                  the
date that Lender confirms to the relevant UK Borrower and the Facility Agent
that it is not entitled to claim full relief from liability to taxation
otherwise imposed by the United Kingdom (in relation to that Lender’s
participation in Advances made to that UK Borrower) on interest under a Double
Taxation Treaty in relation to the relevant Interest Payment; and


 


(z)                                  the
earlier of (A) the date which is 6 months after the date on which the
relevant Interest Payment had otherwise been due and payable and (B) the
date of final repayment (whether scheduled, voluntary or mandatory) of
principal in respect of the relevant Interest Payment.


 


(ii)                                For
the avoidance of doubt, in the event that sub-paragraph (i) of this
paragraph (d) applies the Interest Period or Term to which the relevant
Interest Payment relates shall not be extended and the start of the immediately
succeeding Interest Period or Term shall not be delayed.


 


(e)                                  Any Lender which was a
Qualifying UK Lender when it became party to this Agreement but subsequently
ceases to be a Qualifying UK Lender (other than by reason of a Change in Tax
Law in the United Kingdom) shall promptly notify the UK Borrowers of that
event, provided that if there is a Change in Tax Law in the United Kingdom
which in the reasonable opinion of such UK Borrowers may result in any Lender
which was a Qualifying UK Lender when it became a party to this Agreement
ceasing to be a Qualifying UK Lender, such Qualifying UK Lender shall
co-operate with such UK Borrowers and provide reasonable evidence requested by
such UK Borrowers in order for such UK Borrowers to determine whether such
Lender has ceased to be a Qualifying UK Lender provided, however, that nothing
in this Clause 17.2(e) shall require a Lender to disclose any
confidential information or information regarding its business, tax affairs or
tax computations (including without limitation, its tax returns or its
calculations).


 


(f)                                    For the purposes of paragraphs
(a) to (e) above, each Lender shall promptly deliver such documents
evidencing its corporate and tax status as the Facility Agent or the Company
may reasonably request, provided that in the event that any Lender fails to
comply with the foregoing requirement, any Borrower shall be permitted:


 


(i)                                    in respect of any Lender that
has become a Lender prior to the achievement of Successful Syndication, to
withhold and retain an amount in respect of the applicable withholding tax
estimated in good faith by such Borrower to be required to be withheld in
respect of interest paid to such Lender; or


 


(ii)                                in respect of any Lender that
intends to become a Lender after the achievement of Successful Syndication,
subject to the provisions of paragraph (a) of Clause 37.3 (Assignments and Transfers), to refuse to grant its consent
to such transfer.


 


(g)                                 In the event that either the
Facility Agent or the Company has reason to believe that any representation
given by a Lender in accordance with Clause 17.2 (Lender Tax
Status) is incorrect or inaccurate, the Facility Agent or the
Company (as the case may be) shall promptly inform the other party and the
relevant Lender, and may thereafter request such 


 


89

















 


documents relating to the  corporate and tax status of such Lender as
the Facility Agent or the Company may reasonably require for the purposes of
determining whether or not such representation was indeed incorrect.


 


(h)                                 If, following delivery of such
documentation and following consultation between the Facility Agent, the
Company and the relevant Lender, the Company concludes (acting reasonably and
in good faith) that there is insufficient evidence to determine the relevant
tax status of such Lender, the Company may require the relevant Borrower to
whom such Lender has made Advances to novate its obligations under such
Advances in accordance with paragraph (d) of Clause 37.3 (Assignment or Transfers by Lender) to another Borrower.


 


17.3                        Tax Indemnity


 


(a)                                  Subject to paragraph (b) of
this Clause, the Company shall (within 5 Business Days of demand by the
Facility Agent) pay (or procure that either the Parent or the relevant Obligor
pays) for the account of a Protected Party an amount equal to any Tax Liability
which that Protected Party reasonably determines has been or will be suffered
by that Protected Party (directly or indirectly) in connection with any Finance
Document.


 


(b)                                  Paragraph (a) of this
Clause shall not apply:


 


(i)                                    with respect to any Tax
Liability of a Protected Party in respect of Tax on Overall Net Income of that
Protected Party;


 


(ii)                                to the extent that any Tax
Liability has been compensated for by an increased payment or other payment
under paragraphs (c) or (d) of Clause 17.1 (Tax Gross-up)
or would have been compensated for by such an increased payment or other
payment, but for the application of paragraph (f) of Clause 17.1 (Tax Gross-up); or


 


(iii)                            until the Merger Closing Date
has occurred.


 


(c)                                  A Protected Party making, or
intending to make, a claim pursuant to paragraph (a) of this Clause 17.3
shall promptly notify the Facility Agent of the event which will give, or has
given, rise to the claim together with supporting evidence, following which the
Facility Agent shall notify the Company and provide such evidence to it.


 


(d)                                  A Protected Party shall, on
receiving a payment from either the Parent or an Obligor under this Clause
17.3, notify the Facility Agent.


 


(e)                                  In this Clause 17.3:


 


“Tax Liability”
means, in respect of any Protected Party:


 


(i)                                    any liability or any increase
in the liability of that person to make any payment of or in respect of tax;


 


(ii)                                any loss of any relief,
allowance, deduction or credit in respect of tax which would otherwise have
been available to that person;


 


(iii)                            any setting off against
income, profits or gains or against any tax liability of any relief, allowance,
deduction or credit in respect of tax which would otherwise have been available
to that person; and


 


(iv)                               any loss or setting off
against any tax liability of a right to repayment of tax which would otherwise
have been available to that person.


 


90

















 


For this purpose, any question of whether or not any
relief, allowance, deduction, credit or right to repayment of tax has been lost
or set off in relation to any person, and if so, the date on which that loss or
set-off took place, shall be conclusively determined by that person, acting
reasonably and in good faith and such determination shall be binding on the
relevant parties to this Agreement.


 


“Tax on Overall Net
Income” means, in relation to a Protected Party, tax (other than tax
deducted or withheld from any payment) imposed on the net income received or
receivable (but not any sum deemed to be received or receivable) by that
Protected Party by the jurisdiction in which the relevant Finance Party is
incorporated or, if different, the jurisdiction (or jurisdictions) in which the
Finance Party is treated as residing for tax purposes or in which the relevant
Finance Party’s Facility Office or head office is situated.


 


(f)                                    A Protected Party making or
intending to make a claim under paragraph (a) above shall promptly notify
the Facility Agent of the event which will give, or has given, rise to the
claim together with supporting evidence, following which the Facility Agent
shall notify the Company and provide such evidence to it.


 


(g)                                 A Protected Party shall, on
receiving a payment from an Obligor under this Clause 17.3, notify the Facility
Agent.


 


17.4                        Tax Credit


 


(a)                                  If either the Parent or an
Obligor makes a Tax Payment and the relevant Finance Party determines, in its
sole opinion, that:


 


(i)                                    a Tax Credit is attributable
to that Tax Payment; and


 


(ii)                                that Finance Party has
obtained, utilised and retained that Tax Credit,


 


the Finance Party shall (subject to paragraph (b) below
and to the extent that such Finance Party can do so without prejudicing the
availability and/or the amount of the Tax Credit and the right of that Finance
Party to obtain any other benefit, relief or allowance which may be available
to it) pay to either the Parent or the relevant Obligor such amount which that
Finance Party determines, in its sole opinion, will leave it (after that
payment) in the same after-tax position as it would have been in had the Tax
Payment not been required to be made by the Parent or the relevant Obligor.


 


(b)                                  (i)            Each Finance Party shall have an absolute discretion
as to the time at which and the order and manner in which it realises or
utilises any Tax Credits and shall not be obliged to arrange its business or
its tax affairs in any particular way in order to be eligible for any credit or
refund or similar benefit.


 


(ii)                                No
Finance Party shall be obliged to disclose to any other person any information
regarding its business, tax affairs or tax computations (including, without
limitation, its tax returns or its calculations).


 


(iii)                            If a
Finance Party has made a payment to the Parent or an Obligor pursuant to this
Clause 17.4 on account of a Tax Credit and it subsequently transpires that that
Finance Party did not receive that Tax Credit, or received a reduced Tax Credit,
either the Parent or such Obligor, as the case may be, shall, on demand, pay to
that Finance Party the amount which that Finance Party determines, acting
reasonably and in good faith, will put it (after that payment is received) in
the same after-tax position as it would have been in had no such payment or a
reduced payment been made to the Parent or such Obligor.


 


91

















 


(c)                                  No Finance Party shall be
obliged to make any payment under this Clause 17.4 if, by doing so, it would
contravene the terms of any applicable Law or any notice, direction or
requirement of any governmental or regulatory authority (whether or not having
the force of law).


 


18.                               INCREASED COSTS


 


18.1                        Increased Costs


 


Subject to Clause
18.3, (Exceptions), each Borrower shall, within
3 Business Days of a demand by the Facility Agent, pay for the account of a
Finance Party the amount of any Increased Cost incurred by that Finance Party
or any of its Affiliates as a result (direct or indirect) of:


 


(a)                                  the introduction or
implementation of or any change in (or any change in the interpretation,
administration or application of) any Law, regulation, practice or concession
or any directive, requirement, request or guideline (whether or not having the
force of law but where such law, regulation, practice, concession, directive,
requirement, request or guideline does not have the force of law, it is one
with which banks or financial institutions subject to the same are generally
accustomed to comply) of any central bank, including the European Central Bank,
the Financial Services Authority or any other fiscal, monetary, regulatory or
other authority after the date of this Agreement;


 


(b)                                  compliance with any Law,
regulation, practice, concession or any such directive, requirement, request or
guideline made after the date of this Agreement; or


 


(c)                                  the implementation of economic
or monetary union by any Member State which is not already a Participating
Member State.


 


18.2                        Increased Costs Claims


 


(a)                                  A Finance Party intending to
make a claim pursuant to Clause 18.1 (Increased Costs)
shall notify the Facility Agent of the event giving rise to the claim,
following which the Facility Agent shall promptly notify the relevant Borrower.


 


(b)                                  Each Finance Party shall, as
soon as practicable after a demand by the Facility Agent, provide a certificate
confirming the amount of its or if applicable, its Affiliate’s Increased Costs
setting out in reasonable detail its calculations in relation to such Increased
Costs.


 


18.3                        Exceptions


 


Clause 18.1 (Increased Costs) does not apply to the extent any Increased
Cost which is:


 


(a)                                  attributable to a Tax
Deduction required by Law to be made by the Parent or an Obligor, as the case
may be;


 


(b)                                  compensated for by Clause 17.3
(Tax Indemnity) (or would have been
compensated for by Clause 17.3 but was not so compensated solely because
paragraph (b) of Clause 17.3 applied);


 


(c)                                  compensated for by the payment
of the Associated Costs Rate;


 


(d)                                  attributable to the gross
negligence of, or wilful breach by, the relevant Finance Party or if
applicable, any of its Affiliates of any law, regulation, practice, concession,
directive, requirement, request or guideline, to which the imposition of such
Increased Cost relates;


 


(e)                                  attributable to a delay of
more than 30 days in the relevant Finance Party notifying the 


 


92

















 


Facility Agent of any claim pursuant to paragraph (a) of
Clause 18.2 (Increased Costs Claims)
after such Finance Party has become aware that it had suffered the relevant
Increased Cost; or


 


(f)                                    attributable to the
implementation of or compliance with the “International Convergence of Capital
Measurement and Capital Standards, a Revised Framework” published by the Basel
Committee on Banking Supervision in June 2004 in the form existing on the
date of this Agreement (“Basel II”)
or any other law or regulation which implements Basel II (whether such
implementation, application or compliance is by a government, regulator,
Finance Party or any of its Affiliates).


 


19.                               ILLEGALITY


 


If it becomes
unlawful in any relevant jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund or maintain its
participation in any Advance or to issue a Documentary Credit or provide a
guarantee in relation to it as envisaged hereby/or in any Ancillary Facility:


 


(a)                                  that Lender shall promptly
notify the Facility Agent upon becoming aware of that event;


 


(b)                                  upon the Facility Agent
notifying the relevant Borrower, the Available Commitments of that Lender will
immediately be cancelled and its Commitments reduced to zero and such Lender
shall not thereafter be obliged to participate in any Advance or issue or
guarantee any Documentary Credit/or make available any Ancillary Facility; and


 


(c)                                  if so required by the Facility
Agent on behalf of the relevant Lender, the relevant Borrower shall repay or
procure the repayment of that Lender’s participation in the Advances made to it
on the last day of the current Interest Period or Term for each Advance
occurring after the Facility Agent has notified such Borrower or, if earlier,
the date specified by the Lender in the notice delivered to the Facility Agent
(being no earlier than the last day of any applicable grace period permitted by
Law) and, if applicable, shall promptly reduce that Lender’s L/C Proportion of
the Outstanding L/C Amount in respect of any outstanding Documentary Credit
issued by it to zero and, if applicable, shall promptly reduce the Ancillary
Facility Outstandings in respect of that Lender to zero, together with accrued
interest and all other amounts owing to that Lender under the Finance
Documents.


 


20.                               MITIGATION


 


20.1                        Mitigation


 


(a)                                  Each Finance Party shall in
consultation with the relevant Borrower, take all reasonable steps to mitigate
any circumstances which arise and which would result in any amount becoming
payable under, or pursuant to, or cancelled pursuant to, any of Clause 17 (Taxes), Clause 18 (Increased Costs)
or Clause 19 (Illegality) including (but not
limited to) transferring its rights and obligations under the Finance Documents
to another Affiliate or Facility Office or financial institution acceptable to
such Borrower which is willing to participate in any Facility in which such
Lender has participated.


 


(b)                                  Paragraph (a) of this
Clause does not in any way limit the obligations of the Parent or any Obligor
under the Finance Documents.


 


93

















 


20.2                        Limitation of Liability


 


(a)                                  With effect from the Merger
Closing Date, each of the Borrowers agrees to indemnify each Finance Party for
all costs and expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 20.1 (Mitigation).


 


(b)                                  A Finance Party is not obliged
to take any steps under Clause 20.1 if, in the opinion of that Finance Party
(acting reasonably), to do so might in any way be prejudicial to it.


 


21.                               REPRESENTATIONS AND WARRANTIES


 


21.1                        Time for making
Representations and Warranties


 


(a)                                  Each Obligor in relation to
itself and, to the extent expressed to be applicable to them, its Subsidiaries,
makes each of the following representations and warranties to each Finance
Party on the date of this Agreement other than in the case of the
representations given under Clause 21.16 (Accuracy of Information)
which shall be given as of the applicable dates specified in that Clause. 


 


(b)                                  The Ultimate Parent in
relation to itself makes each of the representations and warranties set out in
Clauses 21.2 (Due Organisation), 21.5 (No Immunity), 21.6 (Governing Law and
Judgments), 21.7 (All Actions Taken),
21.8 (No Filing or Stamp Taxes), 21.9 (Binding Obligations), 21.10 (No Winding-
up), 21.13 (Original Financial
Statements) (as to the Original Financial Statements provided by
it), 21.14 (No Material Adverse Change),
21.15 (No Undisclosed Liabilities), 21.18 (Execution of Finance Documents), paragraph (d) of
Clause 21.19 (Structure), 21.21 (Necessary Authorisations), 21.27 (Investment Company Act), 21.28 (Margin Stock), 21.31 (Merger
Documents), 21.34 (US Patriot Act)
and 21.36 (Compliance with ERISA) to each
Finance Party on the date of this Agreement. 
Any Holding Company of the Ultimate Parent who accedes to this Agreement
pursuant to Clause 26.3 (Acceding Holding
Company) makes each of the Repeating Representations, to the extent
they are listed in the foregoing sentence, with respect to itself on the date
on which it accedes to this Agreement.


 


(c)                                  The Parent in relation to
itself makes each of the representations and warranties set out in Clauses 21.2
(Due Organisation), 21.3 (No Deduction), 21.4 (Claims Pari Passu), 21.5 (No Immunity), 21.6 (Governing Law and
Judgments), 21.7 (All Actions Taken),
21.8 (No Filing or Stamp Taxes), 21.9 (Binding Obligations), 21.10 (No Winding-
up), paragraph (c) of Clause 21.17 (Indebtedness and Encumbrances), 21.18 (Execution of
Finance Documents), paragraphs (c) of Clause 21.19 (Structure), 21.21 (Necessary Authorisations),
21.26 (Security) and 21.30 (Centre of Main Interests), to each Finance
Party on the date of this Agreement. 


 


21.2                        Due Organisation


 


It is a company
duly organised or a partnership duly formed, in either case, validly existing
under the laws of its jurisdiction of incorporation or establishment with power
to enter into those of the Finance Documents to which it is party and to
exercise its rights and perform its obligations thereunder and all corporate
and (subject to paragraphs (d) and (e) of the definition of
Reservations) other action required to authorise its execution of those of the
Finance Documents to which it is party and its performance of its obligations
have been duly taken.


 


21.3                        No Deduction


 


Under the laws of
its Relevant Tax Jurisdiction in force at the date of this Agreement, it will
not be required to make any deduction for or withholding on account of tax from
any payment it may make 


 


94

















 


under any of the
Finance Documents to any Lender which is (a) a Qualifying UK Lender (in
the case of the UK Borrowers) or (b) a US Accession Lender (in the case of
the US Borrower).


 


21.4                        Claims Pari Passu


 


Subject to the
Reservations, under the laws of its jurisdiction of incorporation or
establishment, and, if different, England, in force at the date of this
Agreement, the claims of the Finance Parties against it under the Finance
Documents to which it is party rank and will rank at least pari passu
with the claims of all its unsecured and unsubordinated creditors save those
whose claims are preferred by any bankruptcy, insolvency, liquidation or
similar laws of general application.


 


21.5                        No Immunity


 


In any legal
proceedings taken in its jurisdiction of incorporation or establishment and, if
different, England in relation to any of the Finance Documents to which it is
party it will not be entitled to claim for itself or any of its assets immunity
from suit, execution, attachment or other legal process.


 


21.6                        Governing Law and Judgments


 


Subject to the
Reservations, in any legal proceedings taken in its jurisdiction of incorporation
or establishment in relation to any of the Finance Documents to which it is
party, the choice of law expressed in such documents to be the governing law of
it and any judgment obtained in such jurisdiction will be recognised and
enforced.


 


21.7                        All Actions Taken


 


All acts,
conditions and things required to be done, fulfilled and performed in order:


 


(a)                                  to enable it lawfully to enter
into, exercise its rights under and perform and comply with all material
obligations expressed to be assumed by it in the Finance Documents to which it
is party;


 


(b)                                  subject to the Reservations,
to ensure that all material obligations expressed to be assumed by it in the
Finance Documents to which it is party are legal, valid and binding; and


 


(c)                                  subject to the Reservations,
to make the Finance Documents to which it is party admissible in evidence in
its jurisdiction of incorporation or establishment and, if different, the
United Kingdom,


 


have been done,
fulfilled and performed.


 


21.8                        No Filing or Stamp Taxes


 


Under the laws of
its Relevant Tax Jurisdiction and, if different, the United Kingdom, in force
at the date of this Agreement, it is not necessary that any of the Finance
Documents to which it is party be filed, recorded or enrolled with any court or
other authority in such jurisdiction or that any stamp, registration or similar
tax be paid on or in relation to any of them other than those filings which are
necessary to perfect the Security and save as stated in the Reservations.


 


21.9                        Binding Obligations


 


Subject to the
Reservations, the obligations expressed to be assumed by it in the Finance
Documents to which it is party, are legal, valid and binding and enforceable
against it in accordance with the terms thereof and no limit on its powers will
be exceeded as a result of the borrowings, grant of 


 


95

















 


security or giving
of guarantees contemplated by such Finance Documents or the performance by it
of any of its obligations thereunder.


 


21.10                 No Winding-up


 


(a)                                  None of the Ultimate Parent,
the Parent, the Company  or any other
Obligor that is a Material Subsidiary is taking any corporate action nor are
any other steps being taken (including the commencement of any legal proceedings)
against the Ultimate Parent, the Parent, the Company or any other Obligor that
is a Material Subsidiary, for its winding-up, dissolution or administration or
for the appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or all of
its assets or revenues save as permitted under paragraphs (c), (d) or (e) of
Clause 25.8 (Mergers), Clause 25.20 (Solvent Liquidation) or as otherwise disclosed to the
Facility Agent prior to the date of this Agreement.


 


(b)                                  Each US Obligor is Solvent.


 


21.11                 No Event of Default


 


No Event of Default
is continuing or might reasonably be expected to result from the making of any
Advance.


 


21.12                 No Material Proceedings


 


No litigation,
arbitration or administrative proceeding of or before any court, arbitral body,
or agency in which there is a reasonable possibility of an adverse decision
which could reasonably be expected to have a Material Adverse Effect has been
started or, to the best of its knowledge, is threatened in writing or, is pending
against it or any member of the Bank Group other than litigation, arbitration
or administrative proceedings commenced prior to the date of this Agreement,
details of which have been disclosed to the Lenders prior to the date of this
Agreement.


 


21.13                 Original Financial Statements


 


Its Original
Financial Statements were prepared in accordance with GAAP which has been
consistently applied (unless and to the extent expressly disclosed to the
Facility Agent in writing to the contrary before the date of this Agreement)
and fairly present in all material respects the consolidated financial position
of the group of companies to which they relate at the date as of which they
were prepared and/or (as appropriate) the results of operations and changes in
financial position during the period for which they were prepared.


 


21.14                 No Material Adverse Change


 


Since publication
of its Original Financial Statements, no event or series of events has
occurred, in each case which has had or could reasonably be expected to have a
Material Adverse Effect.


 


21.15                 No Undisclosed Liabilities


 


As at 31 December 2005,
neither the Ultimate Parent nor any of its Subsidiaries had any material
liabilities (contingent or otherwise) which were not disclosed in the Original
Financial Statements (or by the notes thereto) or reserved against therein and
the Group had no material unrealised or anticipated losses arising from
commitments entered into by it which were not so disclosed or reserved against,
in each case, to the extent required to be disclosed by GAAP.


 


96

















 


21.16                 Accuracy of Information 


 


In the case of the
Company only:


 


(a)                                  to the best of its knowledge
and belief having made all reasonable and proper enquiries, all statements of
fact relating to the business, assets, financial condition and operations of
the Group contained in:


 


(i)                                    the Initial Information
Memorandum are true, complete and accurate in all material respects as at the
date of this Agreement; and


 


(ii)                                the Subsequent Information
Memorandum are true, complete and accurate in all material respects as at the
date it is issued.


 


(b)                                  the opinions and views
expressed in the Information Memoranda and the Agreed Business Plan represent
the honestly held opinions and views of the Company and were arrived at after
careful consideration and were based on reasonable grounds as at the dates on
which they were prepared;


 


(c)                                  all financial projections and
forecasts made by any member of the Bank Group in the Information Memoranda and
the Agreed Business Plan have been prepared in good faith and are based upon
reasonable assumptions (it being understood that such financial projections are
subject to significant uncertainties, many of which are beyond the control of
the Company and/or TCN and that no assurance can be given that such projections
will be realised); and


 


(d)                                  (other than in respect of the
financial projections and forecasts referred to in paragraph (c) above),
the Information Memoranda did not omit to disclose or take into account any
matter known to the Company after due and careful enquiry where failure to
disclose or take into account such matter would result in: 


 


(i)                                    the Initial Information
Memorandum being misleading in any material respect as at the date of this
Agreement; and


 


(ii)                                the Subsequent Information
Memorandum being misleading in any material respect as at the date it is
issued.


 


21.17                 Indebtedness and Encumbrances


 


(a)                                  Save as permitted under this
Agreement, neither it nor any member of the Bank Group has incurred any
Financial Indebtedness which is outstanding.


 


(b)                                  Save as permitted under this
Agreement, no Encumbrance exists over all or any of the present or future
revenues or assets of any member of the Bank Group.


 


(c)                                  In relation to the Parent
only, save as provided in the Security Documents no Encumbrance exists over any
of its rights, title or interest in the shares of the Company or the Parent
Intercompany Debt owed to it by the Company.


 


21.18                 Execution of Finance Documents


 


Its execution of
the Finance Documents to which it is party and the exercise of its rights and
performance of its obligations thereunder do not and will not:


 


(a)                                  conflict with any agreement,
mortgage, bond or other instrument or treaty to which it is a party or which is
binding upon it or any of its assets (save as contemplated by paragraphs (d) 


 


97

















 


and (e) of the definition of Reservations) in a
manner that could reasonably be expected to have a Material Adverse Effect; 


 


(b)                                  conflict with any matter
contained in its constitutional documents; or


 


(c)                                  conflict with any applicable
law.


 


21.19                 Structure


 


(a)                                  The Group Structure Chart is a
complete and accurate representation of the structure of the NTL Group and the
Telewest Group, in each case, in all material respects prior to the Merger
Closing Date.


 


(b)                                  The Company is a wholly owned
Subsidiary of the Parent.


 


(c)                                  In the case of the Parent, it
does not carry on any business or conduct any activities (other than in respect
of the Existing High Yield Offering, and any on lending of the proceeds
thereof).


 


(d)                                  Upon consummation of the
Merger, NTL  shall be a direct
wholly-owned subsidiary of the Ultimate Parent.


 


21.20                 Environmental Matters 


 


(a)                                  It has to the best of its
knowledge and belief:


 


(i)                                    complied with all
Environmental Laws to which it is subject;


 


(ii)                                obtained all Environmental
Licences required in connection with its business; and


 


(iii)                            complied with the terms of all
such Environmental Licences,


 


in each case where failure to do so could reasonably
be expected to have a Material Adverse Effect.


 


(b)                                  To the best of its knowledge
and belief, there is no Environmental Claim pending or threatened against it,
which could reasonably be expected to have a Material Adverse Effect.


 


(c)                                  No:


 


(i)                                    property currently or
previously owned, leased, occupied or controlled by it is contaminated with any
Hazardous Substance; and


 


(ii)                                discharge, release, leaking,
migration or escape of any Hazardous Substance into the Environment has
occurred or is occurring on, under or from that property, 


 


in each case in circumstances where the same could
reasonably be expected to have a Material Adverse Effect.


 


21.21                 Necessary Authorisations


 


(a)                                  The Necessary Authorisations
required by it are in full force and effect;


 


(b)                                  it is in compliance with the
material provisions of each Necessary Authorisation relating to it; and 


 


98

















 


(c)                                  to the best of its knowledge,
none of the Necessary Authorisations relating to it are the subject of any
pending or threatened proceedings or revocation;


 


in each case,
except where any failure to maintain such Necessary Authorisations in full
force and effect, any non-compliance or any proceedings or revocation could not
reasonably be expected to have a Material Adverse Effect and subject to the
Reservations.


 


21.22                 Intellectual Property


 


The Intellectual
Property Rights owned by or licensed to it are all the material Intellectual
Property Rights required by it in order to carry out, maintain and operate its
business, properties and assets, and so far as it is aware, it does not
infringe, in any way any Intellectual Property Rights of any third party save,
in each case, where the failure to own or license the relevant Intellectual
Property Rights or any infringement thereof could not reasonably be expected to
have a Material Adverse Effect.


 


21.23                 Ownership of Assets


 


Save to the extent
disposed of in a manner permitted by the terms of any of the Finance Documents
with effect from and after the Merger Closing Date, it has good title to or
valid leases or licences of or is otherwise entitled to use all material assets
necessary to conduct its business taken as a whole in a manner consistent with
the Agreed Business Plan except to the extent that the failure to have such
title, leases or licences or to be so entitled could not be reasonably expected
to have a Material Adverse Effect.


 


21.24                 Payment of Taxes


 


It has no claims or
liabilities which are being, or are reasonably likely to be, asserted against
it with respect to taxes which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect save to the extent it (or any member
of the Group) having set aside proper reserves for such claims or liabilities,
can demonstrate that the same are being contested in good faith on the basis of
appropriate professional advice.  All
reports and returns on which taxes are required to be shown have been filed
within any applicable time limits and all material taxes required to be paid
have been paid within any applicable time period other than to the extent that
a failure to do so could not be reasonably likely to have a Material Adverse
Effect. 


 


21.25                 Pension Plans


 


(a)                                  Each UK defined benefit
pension plan operated by it generally for the benefit of the employees of any
member of the Bank Group has been valued by an actuary appointed by the
trustees of such plan in all material respects in accordance with all laws
applicable to it and using actuarial assumptions and recommendations complying
with statutory requirements or approved by the actuary and since the most
recent valuation the relevant employers have paid contributions to the plan in
accordance with the schedule of contributions in force from time to time
in relation to the plan, in the case of each of the foregoing, save to the
extent that any failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


(b)                                  In relation to the US schemes
or arrangements, it is in compliance in all material respects with all
applicable laws relating to any defined benefit pension plan operated by it or
in which it participates, save to the extent that any failure to comply could
not reasonably be expected to have a Material Adverse Effect.


 


(c)                                  Neither it nor any ERISA
Affiliate has, at any time, maintained or contributed to, and is not obliged to
maintain or contribute to, any Plan that is subject to Title IV or Section 302
of ERISA and/or Section 412 of the Code or any Multi-employer Plan.


 


99

















 


21.26                 Security


 


Subject to the
Reservations, it is the legal or beneficial owner of all assets and other
property which it purports to charge, mortgage, pledge, assign or otherwise
secure pursuant to each Security Document and (subject to their registration or
filing at appropriate registries for the purposes of perfecting the Security
created thereunder and the Reservations) those Security Documents to which it
is a party create and give rise to valid and effective Security having the
ranking expressed in those Security Documents.


 


21.27                 Investment Company Act


 


Neither it nor any
of its Subsidiaries is an “investment company,” or a company “controlled” by an
“investment company,” as such terms are defined in the US Investment Company
Act of 1940, as amended.  Neither the
making of any Drawing, nor the application of the proceeds or repayment thereof
by any Obligor, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or order
of the SEC promulgated thereunder.


 


21.28                 Margin Stock


 


In the case of the
Ultimate Parent only, no Advance (or the proceeds thereof) will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. 
Neither the making of any Advance nor the use of the proceeds thereof
nor the occurrence of any other Utilisation will violate or be inconsistent
with the provisions of Regulation T, Regulation U or Regulation X.


 


21.29                 Insurance


 


Each member of the
Bank Group is adequately insured for the purposes of its business with
reputable underwriters or insurance companies against such risks and to such
extent as is necessary or usual for prudent companies carrying on such a
business (other than insurance in respect of the underground portion of the
cable network and various pavement-based electronics associated with the cable
network as disclosed in the Group’s public disclosure documents) and except to
the extent that the failure to so insure could not reasonably be expected to
have a Material Adverse Effect.  


 


21.30                 Centre of Main Interests


 


Its Centre of Main
Interests is the place in which its registered office is situated or, if
different, another place in the country in which its registered office is
situated, or England.


 


21.31                 Merger Documents


 


The Merger Documents contain all the material terms
and conditions of the Merger and are in full force and effect and there have
been no amendments, variations or waivers to the Merger Documents (in whole or
in part) other than amendments thereto or waivers thereunder (excluding any
waiver of or as contemplated by Section 9.02(a) of the Merger
Agreement) which are not material and adverse to the financing under this
Agreement, the Alternative Bridge Facility Agreement or the Bridge Facility
Agreement.


 


21.32                 Broadcasting Act 1990


 


Neither it nor any member of any Joint Venture Group
is a “disqualified person” for the purposes of schedule 2 to such Act.


 


100

















 


21.33                 Telecommunications, Cable and Broadcasting
Laws


 


(a)                                  To the best of its knowledge
and belief, it and each member of each Joint Venture Group is in compliance in
all material respects with all Telecommunications, Cable and Broadcasting Laws
(but excluding, for these purposes only, breaches of Telecommunications, Cable
and Broadcasting Laws which have been expressly waived by the relevant
regulatory authority), in each case, where failure to do so could reasonably be
expected to have a Material Adverse Effect.


 


(b)                                  To the best of its knowledge
and belief, it and each member of each Joint Venture Group is in compliance in
all material respects with any conditions set by the Director General of
Telecommunications or by OFCOM under section 45 of the Communications Act
2003 as are applicable to it or such member of the Joint Venture Group (as the
case may be), in each case, where failure to do so could reasonably be expected
to have a Material Adverse Effect.


 


21.34                 US Patriot Act


 


(a)                                  It has no reason to believe
that it or any of its Affiliates:


 


(i)                                    is a Restricted Party or
controlled by a Restricted Party or has received funds or property from a
Restricted Party; or


 


(ii)                                has violated any
Anti-Terrorism Law or is the subject of any action or investigation (including
any relating to asset seizure, forfeiture or confiscation) under any
Anti-Terrorism Law.


 


(b)                                  It and its Affiliates have
taken reasonable measures to ensure compliance with the Anti-Terrorism Laws.


 


21.35                 Liabilities of the US Borrower


 


In the case of the US Borrower only, it is a wholly
owned Subsidiary of NTL Victoria Limited and:


 


(a)                                  has not traded or undertaken
any commercial activities of any kind (other than by entering into the Finance
Documents to which it is party and the Notes);


 


(b)                                  does not have any assets other
than its rights under and any payments received pursuant to the Notes; and


 


(c)                                  does not have any material
liabilities or obligations (actual or contingent) to any person other than as
contemplated by the terms of the Finance Documents.


 


21.36                 Compliance with ERISA


 


(a)                                  Each Plan (and each related
trust, insurance contract or fund) is in compliance with its terms and with all
applicable laws, including without limitation ERISA and the Code, save where
the failure to be so compliant could not reasonably be expected to result in a
Material Adverse Effect.


 


(b)                                  Each Plan (and each related
trust, if any) which is intended to be qualified under Section 401(a) of
the Code has received a determination letter from the Internal Revenue Service
to the effect that it meets the requirements of Sections 401(a) and 501(a) of
the Code.


 


(c)                                  Neither it nor any member of
the Group nor any ERISA Affiliate has ever maintained or contributed to (or had
any obligation to contribute to) any Multiemployer Plan or Plan that is 


 


101

















 


subject to Title IV or Section 302 of ERISA
and/or Section 412 of the Code.


 


(d)                                  All contributions required to
be made with respect to a Plan have been made within the time limit therefor,
save where the failure to do so would not result in a material liability.


 


(e)                                  Neither it nor any other
member of the Group nor any ERISA Affiliate has incurred any material liability
(including any indirect, contingent or secondary liability) to or on account of
a Plan pursuant to sections 409, 502(i) or 502(l) of ERISA or section 4975
of the Code or expects to incur any such 
material liability under any of the foregoing sections with respect to
any Plan, in each case, that could reasonably be expected to result in a
Material Adverse Effect.


 


(f)                                    To the Company’s knowledge, no
condition exists which presents a material risk to it or any other member of
the Group or any ERISA Affiliate of incurring a liability to or on account of a
Plan pursuant to the provisions of ERISA and the Code enumerated in paragraph (e) of
this Clause 21.36, that could reasonably be expected to result in a Material
Adverse Effect.


 


(g)                                 No action, suit, proceeding,
hearing, audit or investigation with respect to the administration, operation
or the investment of assets of any Plan (other than routine claims for
benefits) that could reasonably be expected to result in a Material Adverse
Effect, is pending or, to the Company’s knowledge, expected or threatened.


 


(h)                                 Each group health plan (as
defined in section 607(1) of ERISA or section 4980B(g)(2) of
the Code) which covers or has covered employees or former employees of any
member of the Group or any ERISA Affiliate has at all times been operated in
compliance with the provisions of Part 6 of subtitle B of Title I of ERISA
and section 4980B of the Code, save where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.


 


(i)                                    It and each other member of
the Group do not maintain or contribute to any employee welfare benefit plan
(as defined in Section 3(1) of ERISA) which provides benefits to
retired employees or other former employees (other than as required by Section 601
of ERISA) or any Plan the obligations with respect to which could reasonably be
expected to have a Material Adverse Effect.


 


(j)                                    Each Foreign Pension Plan has
been maintained in substantial compliance with its terms and with the
requirements of any and all applicable laws, statutes, rules, regulations and
orders and has been maintained, where required, in good standing with
applicable regulatory authorities, in the case of each of the foregoing, save
where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.


 


(k)                                All contributions required to
be made with respect to a Foreign Pension Plan maintained by it have been made
within the time limit therefor, save where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.


 


21.37                 Repetition


 


Each Repeating
Representation is deemed to be made by the party identified as making such
Repeating Representation above in relation to itself, or in the case of the
Company in relation to itself and each Obligor or the Bank Group as a whole (as
applicable), by reference to the facts and circumstances then existing on each
Utilisation Date (save for a Utilisation Date in respect of a Rollover Advance
or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credit)) and on the
first day of each Interest Period.


 


102

















 


22.                               FINANCIAL INFORMATION


 


22.1                        Financial Statements


 


(a)                                  Group Financial Information: The Company shall provide to
the Agents in sufficient copies for all the Lenders, the following financial
information relating to the Group:


 


(i)                                    as soon as the same become
available, but in any event within 120 days after the end of each of the
Ultimate Parent’s financial years, the consolidated financial statements for such
financial year in respect of the Group, audited by a firm of auditors meeting
the requirements of Clause 24.17 (Change in
Auditors), and accompanied by the related auditor’s report; and 


 


(ii)                                as soon as they become
available but in any event within 45 days after the end of each Financial
Quarter, the unaudited consolidated quarterly financial statements of the Group
commencing with the first complete Financial Quarter arising after the Merger
Closing Date (other than, for so long as the Ultimate Parent remains a
reporting company under the rules of the SEC, the last Financial Quarter
in each of the Ultimate Parent’s financial years) together with, commencing
with the Financial Quarter ended 30 June 2006, a commentary consistent
with disclosure in the nature of a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations”, in relation to the financial
condition and results of operations of the Group.


 


In relation to the financial information of the Group
only, the above requirements may be satisfied by the provision, within the
specified time periods, of copies of reports for the Group already filed with
the SEC for the relevant period (it being acknowledged that the SEC does not as
at the date hereof require the filing of quarterly financial statements for the
fourth Financial Quarter of any financial year).


 


(b)                                  Company, TCN and Bank Group Financial Information: Subject to Clause 22.2 (Provisions relating to the Bank Group Financial
Information), the Company shall provide to the Agents in sufficient
copies for all the Lenders, the following financial information relating to the
Company, TCN or the Bank Group, as the case may be:


 


(i)                                    as soon as they become
available but in any event within 120 days after the end of each of the Company’s
financial years, the audited consolidated financial statements for such
financial year for the Company and (except to the extent that TCN is a
Subsidiary of the Company) within 120 days after the end of each of TCN’s
financial years, the audited consolidated financial statements for such
financial year for TCN;


 


(ii)                                as soon as they become
available but in any event within 120 days after the end of each of the Company’s
financial years, the unaudited pro forma balance sheet, statement of cash flows
and statement of operations for such financial year in respect of the Bank
Group substantially in the form set out in Schedule 13 (Pro Forma Bank Group Financial Statements)
or with such amendments as may be necessary to reflect changes made to the
Group’s public financial information as agreed by the Facility Agent (acting
reasonably), together with a commentary from the management in relation to the
key drivers for the financial performance of the Bank Group for such financial
year.  


 


(iii)                            as soon as they become
available but in any event within 50 days (or 90 days for the Financial Quarter
ended 31 March 2006) after the end of each of the first three Financial
Quarters of each financial year (and within 120 days after the end of the last
Financial Quarter), the unaudited pro forma balance sheet, statement of cash
flows 


 


103

















 


and statement of operations for such Financial Quarter
in respect of the Bank Group substantially in the form set out in Schedule 13
(Pro Forma Bank Group Financial Statements)
or with such amendments as may be necessary to reflect changes made to the
Group’s public financial information as agreed by the Facility Agent (acting
reasonably).


 


(c)                                  Borrower Financial Information:  Each Borrower shall provide, to the extent
such information is required by any Lender to enable it to comply with any law,
regulation or other requirement of any central bank or other fiscal, monetary
or other authority, promptly following request by such Lender, such Borrower’s
most recent annual audited financial statements to the extent the same are in
final form.


 


22.2                        Provisions relating to Bank
Group Financial Information


 


(a)                                  The financial information of
the Bank Group delivered pursuant to paragraphs (b)(ii) and (b)(iii) of
Clause 22.1 (Financial Statements)
shall be prepared in good faith using the same methodologies applied in
preparing the audited consolidated financial statements of the Ultimate Parent
delivered to the Agents pursuant to sub-paragraph (a)(i) of Clause 22.1 (Financial Statements).  


 


(b)                                  To the extent possible, all
financial data used in preparing the financial information of the Bank Group
will be derived from:


 


(i)                                    in the case of financial
information in respect of a full financial year of the Bank Group, the balance
sheet, statement of cash flows, statement of operations and notes to the
audited consolidated financial statements of the Ultimate Parent in respect of
that financial year, including without limitation, revenue (broken down by “Business”,
“Consumer” and “Content”); and


 


(ii)                                in respect of financial
information in respect of any Financial Quarter of any financial year of the
Bank Group, from the balance sheet, statement of cash flows, statement of
operations and notes to the unaudited consolidated quarterly financial
statements of the Ultimate Parent for the corresponding Financial Quarter,
including without limitation, revenue (broken down by “Business”, “Consumer”
and “Content”),


 


provided that in the event that it shall not be
possible to apply the financial data used in the financial statements or
management accounts of the Ultimate Parent, as the case may be, such financial
information will be determined in good faith based on allocation methodologies
approved by the Board of Directors of the Company.


 


(c)                                  For any period prior to 31 March 2007,
Bank Group Consolidated Revenue shall represent the combination of revenue of
the Ultimate Parent and NTL (without duplication) and following the
consummation of the Baseball Acquisition, for any period ending on a date prior
to the first anniversary of the Baseball Effective Date, Bank Consolidated
Revenue shall represent the combination of the Ultimate Parent, NTL and
Baseball (without duplication), in each case, for the relevant period.


 


(d)                                  Financial statements for the
Bank Group shall reflect, for any period prior to 31 March 2007 and/or the
Baseball Effective Date, the combination of the historical statements of the
Ultimate Parent and NTL and Baseball (as the case may be) (without duplication)
giving effect to the Merger and/or the Baseball Acquisition (as the case may
be) as if the Merger and/or the Baseball Acquisition (as the case may be) had
occurred as of the beginning of the relevant period and reflecting such
adjustments to give effect to the Merger and/or the Baseball Acquisition (as
the case may be) including elimination of balance sheet and other adjustments
of the Merger and/or the Baseball Acquisition (as the case may be). Such 


 


104

















 


combination of historical statements will be carried
out by the Company in good faith and having regard to publicly available
financial information of the NTL Group, Telewest Group and/or the Baseball
Group prior to the Merger or the Baseball Acquisition (as the case may be).


 


22.3                        Budget


 


In respect of each
financial year, as soon as the same becomes available and in any event by no
later than 30 days after the beginning of each financial year of the Bank Group
(other than in respect of the financial year ended 31 December 2006), the
Company shall deliver to the Agents, in sufficient copies for the Lenders, the
annual operating budget, which as regards paragraphs (b) and (c) below
shall be in the format set out in Schedule 14 (Pro Forma Budget Information) or with such amendments as may
be necessary to reflect changes made to the Group’s public financial
information as agreed by the Facility Agent (acting reasonably) and prepared by
reference to each Financial Quarter in respect of such financial year of the
Bank Group.  The annual operating budget
shall be prepared in a form consistent with past practice of the Company and
shall include:


 


(a)                                  forecasts of any projected
material Disposals (including timing and anticipated Net Proceeds thereof) on a
consolidated basis for the Bank Group;


 


(b)                                  projected annual statements of
operations (including projected revenue and operating costs) on a consolidated
basis for the Bank Group in the format set out in Schedule 14 (Pro Forma Budget Information) or with such
amendments as may be necessary to reflect changes made to the Group’s public
financial information as agreed by the Facility Agent (acting reasonably);


 


(c)                                  projected estimated pro forma
balance sheets and estimated pro forma statements of cash flows on a
consolidated basis for the Bank Group in the format set out in Schedule 14
(Pro Forma Budget Information) or
with such amendments as may be necessary to reflect changes made to the Group’s
public financial information as agreed by the Facility Agent (acting
reasonably);


 


(d)                                  projected capital expenditure
to be included for each Financial Quarter of such financial year on a
consolidated basis for the Bank Group;


 


(e)                                  projected ratios in respect of
each of the financial covenants set out in Clause 23.2 (Ratios) for each Financial Quarter in such
financial year ; and


 


(f)                                    a commentary from the
management in relation to the key drivers for the Bank Group for such financial
year.


 


The Company shall
provide the Agents with any details of material changes in the projections set
out in any Budget delivered under this Clause 22.3 as soon as reasonably
practicable after it becomes aware of any such change.  


 


22.4                        Other Information


 


The Company shall
and shall procure that each of the Obligors shall from time to time on the
request of the Facility Agent and/or Administrative Agent:


 


(a)                                  provide the Facility Agent
and/or Administrative Agent (as applicable) with such information about the
business and financial condition of the Bank Group or any member of the Bank
Group (including such member’s business) as the Facility Agent and/or
Administrative Agent  (as applicable) may
reasonably require, provided that the Company shall not be under any obligation
to provide, or procure the providing of, any information the supply of which
would 


 


105

















 


be contrary to any confidentiality obligation binding
on any member of the Bank Group or where the supply of such information could
prejudice the retention of legal privilege in such information and provided
further that no Obligor shall (and the Company shall procure that no member of
the Bank Group shall) be able to deny the Facility Agent and/or Administrative
Agent (as applicable) any such information by reason of it having entered into
a  confidentiality undertaking which
would prevent it from disclosing, or be able to claim any legal privilege in
respect of, any financial information relating to itself or the Group; and


 


(b)                                  provide all then existing
information about the business and financial condition of the Bank Group or any
member of the Bank Group (including such member’s business) as Standard &
Poor’s or Moody’s may reasonably require and extend all reasonable co-operation
for the purpose of determining or assessing the credit ratings (if any)
assigned to the Facilities, the Bridge Facility Agreement, the Alternative
Bridge Facility Agreement, the Existing High Yield Notes, any High Yield
Refinancing or the NTL High Yield Notes, and the Company shall use all
reasonable efforts to meet with representatives of Standard & Poor’s
and Moody’s no less frequently than once in each calendar year.


 


22.5                        Compliance Certificates


 


The Company shall
ensure that each set of financial information delivered by it pursuant to
sub-paragraphs (a), (b)(ii) and (b)(iii) of Clause 22.1 (Financial Statements) is accompanied by a
Compliance Certificate signed by two of its authorised signatories (at least
one of whom shall be a Financial Officer) which:


 


(a)                                  where the relevant financial
statements being delivered relate to a period ending on a Quarter Date in
respect of which the financial covenants are required to be tested in
accordance with paragraphs (d) and (e) of Clause 23.2 (Ratios):


 


(i)                                    confirms compliance (or
detailing any non-compliance) with the relevant financial covenants set out in
Clause 23 (Financial Condition)
and showing figures representing the actual financial ratios then in effect; 


 


(ii)                                attaches a working paper (the “Attached
Working Paper”) setting out the calculations showing compliance with the financial
covenants set out in Clause 23 (Financial
Condition) and the information from which such calculations are
derived (including the calculations for the components of such covenants
defined in Clause 23.1 (Financial
Definitions) on a line by line basis); and


 


(iii)                            confirms that the information
contained in the Attached Working Paper has been prepared on the basis of the
same information and methodology used to prepare the appropriate financial
information;


 


(b)                                  in relation to a Compliance
Certificate delivered with the Bank Group’s annual financial information only:


 


(i)                                    confirms the Bank Group
Consolidated Revenues for the financial year ended on that Quarter Date; and


 


(ii)                                confirms compliance (or
detailing any non-compliance) with the 80% Security Test; and


 


(c)                                  in the case of each Compliance
Certificate delivered pursuant to this Clause 22.5, confirms the absence of any
Default.


 


in each case, as at
the end of such financial year or Financial Quarter to which such financial 


 


106

















 


information
relates.


 


22.6                        Access


 


If:


 


(a)                                  an Event of Default has
occurred, but only while such Event of Default is continuing, (provided that
with respect to an Event of Default relating to a breach of any covenant in
Clause 23 (Financial Condition),
such Event of Default shall be deemed to be continuing until such time that the
Company has delivered a Compliance Certificate pursuant to Clause 22.5 (Compliance Certificates) demonstrating
that the Company is in compliance with each of the covenants set out in Clause
23 (Financial Condition)); or 


 


(b)                                  in the reasonable opinion of
an Instructing Group, a breach of any covenant in Clause 23 (Financial Condition) is reasonably likely
to occur,


 


in each such circumstance, at the Obligors’ expense
(in the case of sub-paragraph (a)) and at the Lenders’ expense (in the case of
sub-paragraph (b)), but without causing any undue interruption to the normal
business operations of such Obligor or any member of the Bank Group:


 


(i)                                    the Facility Agent shall be
entitled to call for an independent audit and investigation which is reasonable
in scope and degree having regard to the nature of the Event of Default or
suspected breach (as the case may be) or the financial position of the Bank
Group; and 


 


(ii)                                the Facility Agent, any
Finance Party, or representative of the Facility Agent or such Finance Party
(an “Inspecting
Party”)
shall be entitled to have access, together with its accountants or other
professional advisers, during normal business hours, to inspect or observe such
part of the Group Business as is owned or operated by any Obligor or any member
of the Bank Group, and to have access to books, records, accounts, documents,
computer programmes, data or other information in the possession of or
available to such Obligor or member of the Bank Group and to take such copies
as may be considered appropriate by such Inspecting Party, provided that no
Obligor shall (and the Company shall not be obliged to procure that any member
of the Bank Group shall) be under any obligation to allow any person to have
access to any books, records, accounts, documents, computer programmes, data or
other information or to take copies thereof where to do so would breach any
confidentiality obligation binding on any member of the Group or would
prejudice the retention of legal privilege to which such Obligor or member of
the Group is then entitled in respect of such books, records, accounts,
documents, computer programmes, data or other information and provided further
that no Obligor shall (and the Company shall procure that no member of the Bank
Group shall) be able to deny the Facility Agent any such information by reason
of it having entered into a confidentiality undertaking which would prevent it
from disclosing, or be able to claim any legal privilege in respect of, any
financial information relating to itself or the Group.


 


22.7                        Change in Accounting Practices



 


The Company shall
ensure that each set
of financial information delivered to the Agents pursuant to paragraphs (a) and
(b) of Clause 22.1 (Financial
Statements) is prepared using accounting policies, practices and
procedures consistent with that applied in the preparation of NTL’s Original
Financial Statements, unless in relation to any such
set of financial information, the Company elects to notify the Agents that
there have been one or more changes in any such accounting policies, practices
or procedures (including, without limitation, any change in the basis upon
which costs are capitalised) 


 


107

















 


and:


 


(a)                                  in respect of any change in
the basis upon which the information required to be delivered pursuant to
sub-paragraphs (a)(i) or (a)(ii) of Clause 22.1 (Financial
Statements) is prepared, the Ultimate Parent provides:


 


(i)                                    a description of the changes
and the adjustments which would be required to be made to that financial
information in order to cause them to reflect the accounting policies,
practices or procedures upon which such Original Financial Statements were
prepared; and


 


(ii)                                sufficient information, in
such detail and format as may be reasonably required by the Facility Agent, to
enable the Lenders to make an accurate comparison between the financial
positions indicated by that financial information and by such Original
Financial Statements,


 


and any reference in this Agreement to that financial
information shall be construed as a reference to that financial information as
adjusted to reflect the basis upon which the Original Financial Statements were
prepared; or


 


(b)                                  the Company notifies the
Facility Agent that it is not longer practicable to test compliance with the
financial covenants set out in Clause 23 (Financial
Condition) against the financial information required to be
delivered pursuant to this Clause 22 or that it wishes to cease preparing the
additional information required by sub-paragraph (a) above, in which case:


 


(i)                                    the Facility Agent and the
Company shall enter into negotiations with a view to agreeing alternative
financial covenants to replace those contained in Clause 23 (Financial Condition) in order to maintain
a consistent basis for such financial covenants (and for approval by an
Instructing Group); and


 


(ii)                                if the Facility Agent and the
Company agree alternative financial covenants to replace those contained in
Clause 23 (Financial Condition) which are
acceptable to an Instructing Group, such alternative financial covenants shall
be binding on all parties hereto; and


 


(iii)                            if, after three months following
the date of the notice given to the Facility Agent pursuant to this
sub-paragraph (b), the Facility Agent and the Company cannot agree alternative
financial covenants which are acceptable to an Instructing Group, the Facility
Agent shall refer the matter to any of the Permitted Auditors as may be agreed
between the Company and the Facility Agent for determination of the adjustments
required to be made to such financial information or the calculation of such
ratios to take account of such change, such determination to be binding on the
parties hereto, provided that pending such determination (but not thereafter)
the Company shall continue to prepare financial information and calculate such
covenants in accordance with paragraph (a) above.


 


22.8                        Notifications


 


The Company shall
furnish or procure that there shall be furnished to the Agents in sufficient
copies for each of the Lenders:


 


(a)                                  as soon as reasonably
practicable, documents required to be despatched by the Ultimate Parent to its
shareholders generally (or any class of them) in their capacity as such and all
documents relating to the financial obligations of any Obligor despatched by or
on behalf of any Obligor to its creditors generally (in their capacity as
creditors) it being agreed that to the 


 


108

















 


extent such information is filed with the SEC, such
filing will satisfy the Company’s obligations with regard to the provision of
such information;


 


(b)                                  as soon as reasonably
practicable after the same are instituted or, to its knowledge, threatened,
details of any litigation, arbitration or administrative proceedings involving
any member of the Bank Group which, is reasonably likely to be adversely
determined and if adversely determined, could reasonably be expected to have a
Material Adverse Effect; and


 


(c)                                  written details of any Default
promptly upon becoming aware of the same, and of all remedial steps being taken
and proposed to be taken in respect of that Default.


 


22.9                        Role of the Administrative
Agent and US Paying Agent


 


Notwithstanding the
rights of the Administrative Agent and the US Paying Agent to receive or
request certain documentation and other information as set out in this Clause
22 (Financial Information), the
other Finance Parties hereby expressly acknowledge and agree that the
Administrative Agent and the US Paying Agent (a) are under no obligation
to ensure that any such documentation or other information is made available to
all or any of them, (b) may (in its sole discretion) determine whether or
not to exercise any of its rights as set out in this Clause 22 (Financial Information) and (c) shall
have no liability whatsoever to any other Finance Party for the failure to
exercise, or any delay in exercising, any of its rights set out in this Clause
22 (Financial Information).


 


23.                               FINANCIAL CONDITION


 


23.1                        Financial Definitions


 


In this Agreement
the following terms have the following meanings:


 


“Bank Group Cash Flow” means, in respect of any period,
Consolidated Operating Cashflow for that period (excluding for this purpose all
Permitted Joint Venture Proceeds for such period and/or Permitted Joint Venture
Net Operating Cash Flow for such period included in Consolidated Operating
Cashflow pursuant to paragraph (d) of the definition thereof) after:


 


(a)                                  adding
back:


 


(i)                                    any decrease in the amount of
Working Capital at the end of such period compared against the Working Capital
at the start of such period; 


 


(ii)                                all cash extraordinary or
non-recurring gains during that period to the extent not included in
Consolidated Operating Cashflow; 


 


(iii)                            any amount received in cash in
that period by members of the Bank Group in respect of income and related
taxes; and


 


(iv)                               all Permitted Joint Venture
Proceeds received for such period;


 


(b)                                  deducting:


 


(i)                                    the actual capital expenditure
of members of the Bank Group during such period and in calculating Bank Group
Cash Flow for the purposes of Clause 12.4 (Repayment from Excess
Cashflow) only, the aggregate of the consideration paid for or cost
of any permitted acquisitions and the amount of any investments in Joint
Ventures made in the period by the member of the Bank Group to the extent
included in Consolidated Operating Cashflow;


 


109

















 


(ii)                                any increase in the amount of
Working Capital at the end of such period compared against the Working Capital
at the start of that period; 


 


(iii)                            any amount paid in cash in
that period by any member of the Bank Group in respect of income and related
taxes;


 


(iv)                               all cash extraordinary or
non-recurring losses during that period to the extent not included in
Consolidated Operating Cashflow;


 


(v)                                   in calculating Bank Group Cash
Flow for the purposes of Clause 12.4 (Repayment
from Excess Cash Flow) only, any amount paid in cash in that period
in respect of the items included in the calculation of net income or loss in
the definition of Consolidated Operating Cashflow and any amounts paid in cash
in respect of payments made or paid during such period by any member of the Bank
Group to any person who is not a member of the Bank Group including without
limitation, the payment of all costs and expenses in connection with
transactions contemplated by the Finance Documents and the Bridge Finance
Documents; and


 


(vi)                               any amount paid in cash in
that period in respect of dividends, distributions, loans, investments or other
similar payments made or paid during such period by any member of the Bank
Group to any person who is not a member of the Bank Group and any cash charges
falling under sub-paragraph (a)(ix) of “Consolidated Operating Cashflow”
which have been added back for the purposes of calculating such definition,


 


provided that in no event shall amounts constituting
Consolidated Debt Service be deducted from Bank Group Cash Flow, and no amount
shall be included or excluded more than once and provided that, for the
avoidance of doubt, in calculating Bank Group Cash Flow for the purposes of
Clause 12.4 (Repayment from Excess Cash Flow),
Equity Proceeds, Debt Proceeds and Net Proceeds and the proceeds of any
Subordinated Funding shall be excluded.


 


“Cash” means at any time:


 


(a)                                  all
Cash Equivalent Investments; and


 


(b)                                  cash
(in cleared balances) denominated in Sterling (or any other currency freely
convertible into Sterling) and credited to an account in the name of a member
of the Bank Group with an Eligible Deposit Bank and to which such a member of
the Bank Group is alone beneficially entitled and for so long as:


 


(i)                                    such
cash is repayable on demand (including any cash held on time deposit which is
capable of being broken and the balance received on same day notice provided
that any such cash shall only be taken into account net of any penalties or
costs which would be incurred in breaking the relevant time deposit) and repayment
of such cash is not contingent on the prior discharge of any other indebtedness
of any member of the Bank Group or of any other person whatsoever or on the
satisfaction of any other condition; or


 


(ii)                                such
cash has been deposited with an Eligible Deposit Bank as security for any
performance bond, guarantee, standby letter of credit or similar facility the
contingent liabilities relating to such having been included in the calculation
of Consolidated Total Debt.


 


110

















 


“Consolidated Debt Service” means, in respect of any period,
the aggregate of:


 


(a)                                  the
Consolidated Total Net Cash Interest Payable in respect of such period; and


 


(b)                                  save
to the extent immediately reborrowed, the aggregate of all scheduled payments
(excluding any voluntary and mandatory prepayments) made in such period of
principal, capital or nominal amounts in respect of Consolidated Total Debt.


 


“Consolidated Net Debt” means, at any time, the Consolidated
Total Debt at such time less Cash, in cleared balances at such time, credited
to any account in the name of a member of the Bank Group subject to a maximum
aggregate Cash amount of £200,000,000 (or its equivalent in other currencies).


 


“Consolidated Net Income” means for any period, with respect
to any person, net income (or loss) after taxes for such period of such person
(calculated on a consolidated basis, if it has Subsidiaries) determined in
accordance with GAAP.


 


“Consolidated Operating Cashflow” means, in respect of any
period:


 


(a)                                  Consolidated
Net Income of the Bank Group for such period, in accordance with GAAP as then
in effect adding back (or deducting as the case may be) (only to the extent
used in arriving at net income or loss of the Bank Group):


 


(i)                                    non-cash
gains or losses, whether extraordinary, recurring or otherwise (excluding
however any non-cash charge to the extent that it represents amortisation of a
prepaid expense that was paid in a prior period or an accrual of, or a reserve
for, cash charges or expenses in any future period), and including without
limitation non-cash expenses for compensation relating to the granting of
options and restricted stock, sale of stock and similar arrangements;


 


(ii)                                income
tax expense or benefit;


 


(iii)                            foreign
currency transaction gains and losses and foreign currency translation
differences;


 


(iv)                               other
non-operating gains and losses, including the costs of, and accounting for,
financial instruments and gains and losses on disposals of fixed assets;


 


(v)                                   share
of income or losses from equity investments and minority interests;


 


(vi)                               interest
expense and interest income including, without limitation, amortisation of debt
issuance cost and debt discount; 


 


(vii)                           depreciation
and amortisation;


 


(viii)        extraordinary
items;


 


(ix)                              at the
election of the Company, cash charges resulting from any third party
professional, advisory, legal and accounting fees and out-of-pocket expenses
reasonably incurred in connection with the Merger, the Baseball Scheme, an
acquisition or investment, any financing (in any such case, whether completed
or not) provided that the aggregate amount added back in respect of such fees
and expenses shall not at any time exceed £25 million;


 


(x)                                  restructuring
charges determined in accordance with FAS 146 in an amount of up to £50 million
for the financial year during which the Merger Closing Date occurs (or £60 


 


111

















 


million in the event that the Baseball Acquisition
also occurs during such financial year (other than pursuant to a Stand Alone
Baseball Financing)) (“Year 1”) and
up to £50 million in the following financial year (or £60 million in the event
that the Baseball Acquisition has occurred during such financial year or during
Year 1 (in either case, other than pursuant to a Stand Alone Baseball
Financing)) (“Year 2”) provided that any
unutilised amounts from Year 1 may be carried forward to Year 2 and any
unutilised amounts from Year 2 (including, for the avoidance of doubt, any
amounts rolled over from Year 1) may be carried forward and added back to
Consolidated Operating Cashflow in the period from the end of Year 2 to the
third anniversary of the Merger Closing Date; and


 


(xi)                              cumulative
changes in GAAP from and including the accounting principles applied in the
preparation of the Original Financial Statements,


 


minus


 


(b)                                  the
Excluded Group Operating Cashflow for that period (to the extent included in
the calculation of paragraph (a) above);


 


(c)                                  to the
extent included in Consolidated Net Income for such period and not otherwise
deducted pursuant to paragraph (a) above:


 


(i)                                    that
portion of the share of profit or loss from Permitted Joint Ventures; and


 


(ii)                                the
aggregate amount of all interest income and/or dividends received during such
period from one or more of the Permitted Joint Ventures;


 


plus


 


(d)                                  the
lower of (i) the aggregate Permitted Joint Venture Proceeds actually
received by the Bank Group during such period and (ii) the aggregate of
the proportionate interests of each member of the Bank Group in any Permitted
Joint Venture Net Operating Cash Flow for such period.


 


“Consolidated Total Debt” means, at any time (without double
counting): 


 


(a)                                  the
aggregate principal, capital or nominal amounts (including any Interest
capitalised as principal) of Financial Indebtedness of any member of the Bank
Group (including, without limitation, Financial Indebtedness arising under or
pursuant to the Finance Documents); plus


 


(b)                                  the
aggregate principal, capital or nominal amounts (including any Interest
capitalised as principal) of Financial Indebtedness of any member of the Group
to the extent it is Non-Bank Group Serviceable Debt; 


 


excluding
any Financial Indebtedness of any member of the Group
to another member of the Group or under any Subordinated Funding, to the extent
not prohibited under this Agreement and excluding any
Financial Indebtedness arising by reason only of mark to market fluctuations in
respect of interest rate hedging arrangements since the original date on which
such interest rate hedging arrangements were consummated.


 


“Consolidated Total Net Cash Interest Payable” means, in
respect of any period, the aggregate amount of the Interest which has accrued
on the Consolidated Total Debt during such period (but excluding for the
avoidance of doubt any fees payable in or amortised during such period) but deducting any Interest actually received
in cash by any member of the Bank Group,


 


“Current Assets” means the aggregate of trade and other
receivables (net of allowances for doubtful 


 


112

















 


debts), prepayments
and all other current assets of the Bank Group (which until such time as
balance sheets are prepared for the Bank Group shall be allocated from the
relevant consolidated financial statements of the Group to the Bank Group by
the board of directors of the Company acting in good faith) maturing within
twelve months from the date of computation, as required to be accounted for as
current assets under GAAP but excluding cash and Cash Equivalent Investments
and excluding the impact of Hedging Agreements.


 


“Current Liabilities” means the aggregate of all liabilities
(including accounts payable, accruals and provisions) of the Bank Group (which
until such time as balance sheets are prepared for the Bank Group shall be
allocated to the Bank Group from the relevant consolidated financial statements
of the Group by the board of directors of the Company acting in good faith)
falling due within twelve months from the date of computation and required to
be accounted for as current liabilities under GAAP but excluding Financial
Indebtedness of the Bank Group falling due within such period and any interest
on such Financial Indebtedness due in such period and excluding the impact of
Hedging Agreements.


 


“Eligible Deposit Bank” means any bank or financial
institution which has a short term rating of at least A1 granted by Standard &
Poor’s or P1 granted by Moody’s.


 


“Excluded Group Operating Cashflow” means, in respect of any
period, that proportion of Consolidated Net Income which is attributable to the
Excluded Group for that period adding back (or deducting as the case may be)
(to the extent used in arriving at net profit or loss of the Excluded Group):


 


(a)                                  non-cash
gains or losses, whether extraordinary, recurring or otherwise (excluding
however any non-cash charge to the extent that it represents amortisation of a
prepaid expense that was paid in a prior period or an accrual of, or a reserve
for, cash charges or expenses in any future period), and including without
limitation non-cash expenses for compensation relating to the granting of
options and restricted stock, sale of stock and similar arrangements;


 


(b)                                  income
tax expense or benefit;


 


(c)                                  foreign
currency transaction gains and losses and foreign currency translation differences;


 


(d)                                  other
non-operating gains and losses, including the costs of, and accounting for,
financial instruments and gains and losses on disposals of fixed assets;


 


(e)                                  share
of income or losses from equity investments and minority interests;


 


(f)                                    interest
expense and interest income including, without limitation, amortisation of debt
issuance cost and debt discount;


 


(g)                                 depreciation
and amortisation;


 


(h)                                 extraordinary
items;


 


(i)                                    restructuring
charges determined in accordance with FAS 146; and


 


(j)            cumulative changes
in GAAP from the date of this Agreement.


 


“Financial Quarter” means the period commencing on the day
immediately following any Quarter Date in each year, and ending on the next
succeeding Quarter Date.


 


113

















 


“Interest” means:


 


(a)                                  interest
and amounts in the nature of interest accrued in respect of any Financial
Indebtedness (including without limitation, in respect of obligations under
finance or capital leases or hire purchase payments);


 


(b)                                  discounts
suffered and repayment premiums payable in respect of Financial Indebtedness,
in each case to the extent applicable GAAP requires that such discounts and
premiums be treated as or in like manner to interest;


 


(c)                                  discount
fees and acceptance fees payable or deducted in respect of any Financial
Indebtedness (including all fees payable in connection with any Documentary
Credit, any other letters of credit or guarantees and any Ancillary Facility);


 


(d)                                  any
other costs, expenses and deductions of the like effect and any net payment
(or, if appropriate in the context, receipt) under any Hedging Agreement or
like instrument, taking into account any premiums payable for the same, and the
interest element of any net payment under any Hedging Agreement; and


 


(e)                                  commitment
and non-utilisation fees (including, without limitation, those payable under
this Agreement) but excluding agent’s fees, front-end, management, arrangement
and participation fees and repayment premiums with respect to any Financial
Indebtedness (including, without limitation, all those payable under the
Finance Documents).


 


“Permitted Joint Venture Net Operating Cash Flow” means the
aggregate of the proportionate interests of each member of the Group in any
Permitted Joint Venture of such Joint Venture’s Consolidated Net Income for
such period adding back (or deducting as the case may be) (only to the extent
used in arriving at consolidated net income or loss of such Joint Venture):


 


(a)                                  non-cash
gains or losses, whether extraordinary, recurring or otherwise (excluding
however any non-cash charge to the extent that it represents amortisation of a
prepaid expense that was paid in a prior period or an accrual of, or a reserve
for, cash charges or expenses in any future period), and including without
limitation non-cash expenses for compensation relating to the granting of
options and restricted stock, sale of stock and similar arrangements;


 


(b)                                  income
tax expense or benefit;


 


(c)                                  foreign
currency transaction gains and losses and foreign currency translation
differences;


 


(d)                                  other
non-operating gains and losses, including the costs of, and accounting for,
financial instruments and gains and losses on disposals of fixed assets;


 


(e)                                  share
of income or losses from equity investments and minority interests;


 


(f)                                    interest
expense and interest income including, without limitation, amortisation of debt
issuance cost and debt discount;


 


(g)                                 depreciation
and amortisation;


 


(h)                                 extraordinary
items;


 


(i)                                    restructuring
charges determined in accordance with FAS 146; and


 


(j)                                    cumulative
changes in GAAP from the date of this Agreement.


 


“Permitted Joint Venture Proceeds” means the cash proceeds of
all payments of interest and 


 


114

















 


principal received
under Financial Indebtedness and of all dividends, distributions or other
payments (including management fees) made by any Permitted Joint Venture to any
member of the Bank Group.


 


“Quarter Date” means each of 31 March, 30 June, 30 September and
31 December in each financial year of the Company.


 


“Working Capital” means on any date Current Assets less
Current Liabilities.


 


23.2                        Ratios


 


With effect from
(and including) the end of the third full Financial Quarter after the Merger
Closing Date, the financial condition of the Group or the Bank Group, as the
case may be, as evidenced by the financial information provided pursuant to
paragraphs (a) and (b) of Clause 22.1 (Financial Statements) and the Attached Working Paper
referred to in Clause 22.5 (Compliance Certificates)
shall be such that:


 


(a)                                  Leverage
Ratio: Consolidated Net Debt to Consolidated Operating Cashflow


 


Subject to paragraph (e) below,
Consolidated Net Debt as at any Quarter Date specified in the table in
paragraph (d) of this Clause 23.2, shall not be more than X times
Consolidated Operating Cashflow calculated on a rolling twelve month basis
ending on such Quarter Date, where X has the value indicated for such Quarter
Date in such table.


 


(b)                                  Interest
Coverage Ratio: Consolidated Operating Cashflow to Consolidated Total Net Cash
Interest Payable


 


Subject to
paragraph (e) below, Consolidated Operating Cashflow calculated on a
rolling twelve month basis ending on any Quarter Date specified in the table in
paragraph (d) of this Clause 23.2, shall not be less than Y times
Consolidated Total Net Cash Interest Payable calculated on a rolling twelve
month basis, where Y has the value indicated for such period in such table,
provided that (to the extent applicable) in the case of the test falling on 31 December 2006:


 


(i)                                    Consolidated Operating
Cashflow shall be calculated in accordance with the principles specified in
paragraph (d) of Clause 22.2 (Provisions relating to
Bank Group Financial Information); and 


 


(ii)                                Consolidated Total Net Cash
Interest Payable shall be calculated by annualising (on the basis of the actual
number of days in such period and a 365 day year) the Consolidated Total Net
Cash Interest Payable for the period commencing on the Merger Closing Date and
ending on 31 December 2006.


 


(c)                                  Debt
Service Coverage Ratio: Bank Group Cash Flow to Consolidated Debt Service


 


Subject to
paragraph (e) below, Bank Group Cash Flow calculated for each rolling
twelve month period ending on each Quarter Date specified in the table in
paragraph (d) of this Clause 23.2, shall not be less than Z times
Consolidated Debt Service for such period where Z has the value indicated for
such period in such table provided that (to the extent applicable) in the case
of the test falling on 31 December 2006:


 


(i)                                    Bank Group Cash Flow shall be
calculated in accordance with the principles specified in paragraph (d) of
Clause 22.2 (Provisions relating to Bank Group Financial
Information); and 


 


115

















 


(ii)                                Consolidated Debt Service shall
be calculated by annualising (on the basis of the actual number of days in such
period and a 365 day year) the Consolidated Debt Service for the period
commencing on the Merger Closing Date and ending on 31 December 2006.


 


(d)                                  Ratio Table


 


This is the table referred to in paragraphs (a) to
(c) above.


 


	
   

  	
   

  	
   

  	
   

  	
  Interest

  	
   

  	
  Debt Service Coverage

  
	
   

  	
   

  	
  Leverage Ratio

  	
   

  	
  Coverage Ratio

  	
   

  	
  Ratio

  
	
  Quarter Date

  	
   

  	
  X

  	
   

  	
  Y

  	
   

  	
  Z

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2006

  	
   

  	
  5.45 : 1

  	
   

  	
  2.30 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2007

  	
   

  	
  5.25 : 1

  	
   

  	
  2.35 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 June 2007

  	
   

  	
  5.00 : 1

  	
   

  	
  2.50 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2007

  	
   

  	
  4.70 : 1

  	
   

  	
  2.65 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2007

  	
   

  	
  4.50 : 1

  	
   

  	
  2.80 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2008

  	
   

  	
  4.00 : 1

  	
   

  	
  3.00 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 June 2008

  	
   

  	
  4.00 : 1

  	
   

  	
  3.00 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2008

  	
   

  	
  3.70 : 1

  	
   

  	
  3.30 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2008

  	
   

  	
  3.70 : 1

  	
   

  	
  3.30 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2009

  	
   

  	
  3.40 : 1

  	
   

  	
  3.60 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 June 2009

  	
   

  	
  3.40 : 1

  	
   

  	
  3.60 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2009

  	
   

  	
  3.00 : 1

  	
   

  	
  4.00 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2009

  	
   

  	
  3.00 : 1

  	
   

  	
  4.00 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2010

  	
   

  	
  2.75 : 1

  	
   

  	
  4.25 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 June 2010

  	
   

  	
  2.75 : 1

  	
   

  	
  4.25 : 1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2010

  	
   

  	
  2.50 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2010

  	
   

  	
  2.50 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2011

  	
   

  	
  2.25 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 June 2011

  	
   

  	
  2.25 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2011

  	
   

  	
  2.00 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2011

  	
   

  	
  2.00 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  



 


(e)                                  If any Compliance Certificate
delivered pursuant to Clause 22.5 (Compliance
Certificates) demonstrates that the ratio of Consolidated Net Debt
to Consolidated Operating Cashflow in respect of the relevant Quarter Date for
which such Compliance Certificate was delivered was 4.25:1 or lower, the covenants
which are required to be tested pursuant to paragraphs (a), (b) and (c) above
shall thereafter, and for so long as the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow as at each subsequent Quarter Date remains at
4.25:1 or lower, be tested on each alternative Quarter Date shown on the table
in paragraph (d) above.  In the
event that any Compliance Certificate delivered pursuant to Clause 22.5 (Compliance


 


116

















 


Certificates) demonstrates that the ratio
of Consolidated Net Debt to Consolidated Operating Cashflow in respect of any
Quarter Date for which such Compliance Certificate was delivered exceeds
4.25:1, the covenants which are required to be tested pursuant to paragraphs
(a), (b) and (c) above shall thereafter, and for so long as the ratio
of Consolidated Net Debt to Consolidated Operating Cashflow as at each
subsequent Quarter Date exceeds 4.25:1 be tested, in accordance with paragraphs
(a), (b) and (c) above, on each subsequent Quarter Date.


 


23.3                        Equity Cure Right


 


(a)                                  Subject to paragraph (b) below,
if any Compliance Certificate delivered by the Company demonstrated that the
Bank Group is in breach of any of the financial covenants set out in paragraphs
(a), (b) or (c) of Clause 23.2 (Ratios)
as at the relevant Quarter Date to which such Compliance Certificate relates,
then the Company may, at its option, within 5 Business Days of delivery of such
Compliance Certificate and without prejudice to the rights of the Lenders under
Clause 27 (Events of Default) cure such breach (an “Equity Cure Right”) by procuring that the
proceeds of any New Equity be contributed into the Bank Group and either: 


 


(i)                                    applied towards the prepayment
of the Term Facilities; or 


 


(ii)                                added back to the calculation
of Consolidated Operating Cashflow, 


 


in each case, in
an amount which, if such test(s) were to be recalculated as at such Quarter
Date but giving effect to such application or add-back, such test(s) would have
been satisfied.  


 


(b)                                  The Equity Cure Right shall be
subject to the following conditions:


 


(i)                                    subject to sub-paragraph (ii) below,
such Equity Cure Right may not be used on more than three occasions over the
life of the Facilities;


 


(ii)                                in the case of an add-back to
the calculation of Consolidated Operating Cashflow, such Equity Cure Right may
only be used on one occasion over the life of the Facilities, and in an amount
not exceeding £100 million; 


 


(iii)                            in the case of an add-back to
the calculation of Consolidated Operating Cashflow, such add-back may not be
rolled forward or otherwise taken into account on any subsequent Quarter Date
on which such financial covenants are to be tested; and 


 


(iv)                               such Equity Cure Right may not
be used for any two consecutive Quarter Dates.


 


(c)                                  Any proceeds of New Equity
which are contributed into the Bank Group for the purposes specified above,
shall thereafter be retained within the Bank Group.


 


23.4                        Currency Calculations


 


Where any financial
information with reference to which any of the covenants in Clause 23.2 (Ratios) are tested states amounts in a
currency other than Sterling such amounts shall, for the purposes of testing
such covenants be converted from such currency into Sterling at the rate used
in such financial information for the purpose of converting such amounts from
Sterling into the currency in which they are stated in such financial
information or where no such rate is stated in such financial information at an
appropriate rate selected by the Company, acting reasonably.


 


23.5                        Pro Forma Calculations


 


For the purposes of
testing compliance with the financial covenants set out in Clause 23.2 (Ratios),
the calculation of such ratios shall be made on a pro forma basis giving effect
to all material 


 


117

















 


acquisitions and
disposals made by the Bank Group during the relevant period of calculation
based on historical financial results of the items being acquired or disposed
of.


 


24.                               POSITIVE UNDERTAKINGS


 


24.1                        Application of Advances


 


The Parent shall each
ensure that the proceeds of each Advance made under this Agreement are applied
exclusively for the applicable purposes specified in Clause 2.3 (Purpose).


 


24.2                        Financial Assistance and
Fraudulent Conveyance


 


The Parent and each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall) ensure that its execution of the Finance Documents to which it is a
party and the performance of its obligations thereunder does not contravene any
applicable local laws and regulations concerning fraudulent conveyance,
financial assistance by a company for the acquisition of or subscription for
its own shares or the shares of its parent or any other company or concerning
the protection of shareholders’ capital.


 


24.3                        Necessary Authorisations


 


The Parent and each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall):


 


(a)                                  obtain, comply with and do all
that is necessary to maintain in full force and effect all Necessary
Authorisations, except where a failure to do so could not reasonably be
expected to have a Material Adverse Effect; and


 


(b)                                  promptly upon request of the
Facility Agent, supply certified copies to the Facility Agent of any such
Necessary Authorisations so requested.


 


24.4                        Compliance with Applicable Laws


 


The Parent and each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall) comply with all applicable laws to which it is subject in respect of the
conduct of its business and the ownership of its assets (including, without
limitation, all Statutory Requirements), in each case, where a failure so to
comply could reasonably be expected to have a Material Adverse Effect.


 


24.5                        Insurance


 


(a)                                  Each Obligor shall (and the
Company shall procure that each member of the Bank Group shall) effect and
maintain insurances on and in relation to its business and assets against such
risks and to such extent as is necessary or usual for prudent companies
carrying on a business such as that carried on by such Obligor or member of the
Bank Group with either a Captive Insurance Company or a reputable underwriter
or insurance company except to the extent disclosed in the Group’s public
disclosure documents or to the extent that the failure to so insure could not
reasonably be expected to have a Material Adverse Effect.


 


(b)                                  The Company shall (upon the
reasonable request of the Facility Agent) supply the Facility Agent with copies
of all such insurance policies or certificates of insurance in respect thereof
or (in the absence of the same) such other evidence of the existence of such
policies as may be reasonably acceptable to the Facility Agent.


 


118

















 


24.6                        Intellectual Property


 


Each Obligor shall
(and the Company shall procure that each member of the Bank Group shall):


 


(a)                                  take all necessary action to
safeguard and maintain its rights, present and future, in or relating to all
Intellectual Property Rights owned, used or exploited by it and which are
material to the Group Business (including, without limitation, paying all
applicable renewal fees, licence fees and other outgoings) save where a failure
to do so could not reasonably be expected to have a Material Adverse Effect;
and


 


(b)                                  notify the Facility Agent
promptly of any infringement or suspected infringement or any challenge to the
validity of any of the present or future Intellectual Property Rights owned,
used or exploited by it and which are material to the Group Business which may
come to its notice and it will supply the Facility Agent with all information
in its possession relating thereto if the same could reasonably be expected to
have a Material Adverse Effect and take all necessary steps (including, without
limitation, the institution of legal proceedings) to prevent third parties infringing
such Intellectual Property Rights to the extent that failure to do so could
reasonably be expected to have a Material Adverse Effect.


 


24.7                        Ranking of Claims


 


Subject to the
Reservations, the Parent and each Obligor shall ensure that at all times the
claims of the Finance Parties against it under the Finance Documents to which
it is a party rank at least pari passu with
the claims of all its unsecured, unsubordinated creditors save those whose
claims are preferred by any bankruptcy, insolvency, liquidation or similar laws
of general application.


 


24.8                        Pay Taxes


 


Each Obligor shall
procure and the Company shall procure that each member of the Bank Group shall
ensure that, at all times, there are no material claims or liabilities which
are asserted against it in respect of tax, save to the extent the relevant
Obligor or in the case of any other member of the Bank Group, the Company (as
the case may be) can demonstrate that the same are being contested in good
faith on the basis of appropriate professional advice and that proper reserves
have been established therefor to the extent required by applicable generally
accepted accounting principles.


 


24.9                        Hedging


 


The Company shall
(or shall procure that the Parent shall):


 


(a)                                  enter into and maintain hedging
arrangements with Hedge Counterparties, by way of interest rate swap
transaction, basis swap, forward rate transaction, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any similar derivative transaction, or any combination of
the foregoing, for the purpose of limiting the Bank Group’s exposure to adverse
movements in interest rates or foreign exchange in relation to the Facilities,
the Bridge Facility (or the Alternative Bridge Facility, as the case may be)
and the NTL High Yield Notes (if applicable) as follows:


 


(i)                                    interest rate hedging (or
fixed rate debt, for which purposes, outstanding advances under the Bridge
Facility shall be deemed to constitute fixed rate debt prior to the issuance of
Exchange Notes or the issuance of the NTL High Yield Notes) required to ensure
that interest is payable at fixed rates on not less than 662/3%
of the combined aggregate principal amount outstanding as at the Merger Closing
Date, under the Facilities and the Bridge Facility (or the Alternative Bridge
Facility, as the case may be) (or, if applicable, the NTL High Yield Notes),
for a period of not less than 3 years 


 


119

















 


from the Merger Closing Date (provided that for this
purpose the principal amount of any fixed rate Existing High Yield Notes and
any fixed rate NTL High Yield Notes shall be included in the calculation of
such minimum hedging requirement); and


 


(ii)                                currency rate hedging in
respect of 100% of the aggregate principal amount of the Facilities which are
denominated in euros or Dollars (if applicable) for a period of not less
than 3 years from the Merger Closing Date;


 


(iii)                            currency rate hedging in
respect of 100% of interest payable in euros and Dollars under the Facilities
(if applicable), for a period of not less than 3 years from the Merger Closing
Date;


 


(iv)                               currency rate hedging in
respect of 100% of the coupon payable in euros and Dollars under the NTL High
Yield Notes (if applicable), for a period up to the applicable first call date
in respect of such NTL High Yield Notes,


 


in each case
within 6 months of the Merger Closing Date other than:


 


(1)                                 in the case of the hedging
arrangements required to be entered into under sub-paragraph (a)(i) above,
those hedging arrangements relating to the A1 Facility and the B1 Facility,
which shall be required to be implemented within 6 months of the Baseball
Effective Date; and 


 


(2)                                 in the case of the hedging
arrangements required to be entered into under sub-paragraph (a)(iv) above,
those hedging arrangements relating to the NTL High Yield Notes, which shall be
required to be implemented within 6 months of the date of issuance of such NTL
High Yield Notes;


 


(b)                                  within 6 months of the date of
any High Yield Refinancing, enter into and maintain hedging arrangements with
Hedge Counterparties for the purpose of limiting the Bank Group’s exposure to
adverse movements in interest rates or foreign exchange in relation to such
High Yield Refinancing  for the relevant
remaining period specified in the Existing NTL Senior Credit Facilities
Agreement to the extent that the Company would have been obliged to enter into
hedging arrangements in respect of such High Yield Refinancing thereunder (in
the case of a refinancing of Existing High Yield Notes) or for the relevant
periods specified in sub-paragraphs (a)(i) and (a)(iv) above (in the
case of a refinancing of NTL High Yield Notes);


 


(c)                                  ensure that the hedging
arrangements required pursuant to this Clause 24.9 are Existing Hedging
Agreements or are entered into in the form of Acceptable Hedging Agreements;
and


 


(d)                                  as soon as reasonably
practicable following request by the Facility Agent provide the Facility Agent
with certified true copies of each such Hedging Agreement entered into,


 


provided that the
Company shall not be in breach of this Clause 24.9 if the Company fails to
enter into the hedging arrangements required under paragraphs (a) and (b) by
the relevant times specified in paragraphs (a) and (b) if during the
time between the date of this Agreement and the date on which such hedging
arrangements are required to be implemented:


 


(i)                                    none
of the Lenders or their Affiliates is willing to enter into Hedging Agreements
to effect the hedging arrangements required by paragraphs (a) or (b), as
the case may be; or


 


(ii)                                where
a Lender or its Affiliate is willing to enter into such hedging arrangements,
the terms of such hedging arrangements are, in the reasonable opinion of the
Administrative Agent and the Mandated Lead Arrangers and having regard to the
creditworthiness of the Company and current market conditions, considered to be
unreasonable, or where in the opinion of the 


 


120

















 


Administrative Agent and the Mandated Lead Arrangers,
acting reasonably, such hedging arrangements would cause material adverse
tax-related implications for any member of the Group.


 


24.10                 Pension Plans


 


(a)                                  The Company shall use
reasonable endeavours to ensure that all pension plans maintained and operated
by it or any member of the Bank Group, generally for the benefit of employees
of any member of the Bank Group are maintained and operated and have been
valued by an actuary appointed by the Company in accordance with all applicable
laws from time to time and that the employer contributions are assessed and
paid in all material respects in accordance with the governing provisions of
such schemes and all laws applicable thereto, in each case, save to the extent
that any failure to do so could not reasonably be expected to have a Material
Adverse Effect.


 


Without prejudice
to the generality of Clause 24.10(a):


 


(b)                                  The Company shall ensure that,
except for the NTL Pension Plan, the NTL 1999 Pension Scheme, Cablevision
Pension Scheme and Workplace Technology Pension schemes (the “UK DB
Schemes”),
each UK Pension Scheme is, or has at any time been, a money purchase scheme as
defined in s181 of the Pension Schemes Act 1993) and no member of the Group is,
for the purposes of either s38 or s43 of the Pensions Act 2004, connected with
or an associate of any employer of an occupational pension scheme which is not
a money purchase scheme.


 


(c)                                  Each Participating Employer
shall ensure that, in relation to each UK Pension Scheme, no circumstance or
event occurs and no action or omission is taken which has or is reasonably
likely to have a Material Adverse Effect (including, without limitation, any
Participating Employer ceasing to employ any member of such a pension scheme
or, in the case of any UK DB Scheme, the issue of a Financial Support Direction
or Contribution Notice to any member of the Group).


 


(d)                                  The Company shall promptly
notify the Facility Agent of any change in the rate of contributions to any UK
DB Schemes, paid or recommended to be paid (whether by the scheme actuary or
otherwise) or required by law or otherwise which might reasonably be expected
to have a Material Adverse Effect.


 


(e)                                  Each Obligor shall immediately
notify the Facility Agent of any investigation or proposed investigation by the
Pensions Regulator which it has been informed may lead to the issue of a
Financial Support Direction or a Contribution Notice to it or any member of the
Bank Group.


 


(f)                                    Each Obligor shall immediately
notify the Facility Agent if it receives a Financial Support Direction or a
Contribution Notice from the Pensions Regulator.


 


24.11                 Environmental Matters


 


(a)                                  Each Obligor shall (and the
Company shall procure that each member of the Bank Group shall):


 


(i)                                    comply with all Environmental
Laws to which it is subject;


 


(ii)                                obtain all Environmental
Licences required or desirable in connection with the business it carries on;
and


 


(iii)                            comply with the terms of all
such Environmental Licences,


 


121

















 


in each case where failure to do so could reasonably
be expected to have a Material Adverse Effect.


 


(b)                                  Each Obligor shall (and the
Company shall procure that each member of the Bank Group shall) promptly notify
the Facility Agent of any Environmental Claim (to the best of such Obligor’s or
member of the Bank Group’s knowledge and belief) pending or threatened against
it which, if substantiated, could reasonably be expected to have a Material Adverse
Effect.


 


(c)                                  No Obligor shall (and the
Company shall procure that no member of the Bank Group shall) permit or allow
to occur any discharge, release, leak, migration or other escape of any
Hazardous Substance into the Environment on, under or from any property owned,
leased, occupied or controlled by it, where such discharge, release, leak,
migration or escape could reasonably be expected to have a Material Adverse
Effect.


 


24.12                 Further Assurance


 


(a)                                  The Parent and each Obligor
shall (and the Company shall procure that each member of the Bank Group shall)
at its own expense, promptly take all such reasonable action as the Facility
Agent or the Security Trustee may require for the purpose of complying with the
provisions of paragraph (b) and for the registration or filing of any
Security Documents delivered pursuant thereto with all appropriate authorities
to the extent necessary for the purposes of perfecting the Security created
thereunder.


 


(b)                                  The Company shall:


 


(i)                                    subject to the proviso below and
except as otherwise provided in this Clause 24.12, procure that the 80%
Security Test is satisfied, at the end of each financial year during the term
of the Facilities where such percentage is calculated by reference to the
annual financial information relating to the Bank Group most recently delivered
pursuant to Clause 22.1 (Financial
Statements) and certified in the relevant Compliance Certificate
accompanying the same; 


 


(ii)                                procure that in relation to
any member of the Bank Group which becomes a Borrower for the purposes of this
Agreement, the immediate Holding Company of such Borrower shall also become a
Guarantor hereunder; and


 


(iii)                            procure that each Obligor
which is or becomes a party to this Agreement in such capacity under
sub-paragraph (i) above shall have delivered to the Security Trustee, one
or more Security Documents granting security over all or substantially all of
its assets other than any shares in, receivables owed by or any other interest
in any Bank Group Excluded Subsidiary, Project Company or Joint Venture or any
other asset which is of a type excluded from existing corresponding Security
Documents, or which the Security Trustee agrees may be excluded from the
Security granted under the Security Documents (provided that the Security
Trustee shall not agree to exclude any asset of an Obligor from the Security
where the net book value of such asset exceeds £10 million (or its equivalent
in other currencies) without the prior consent of an Instructing Group (not to
be unreasonably withheld or delayed)).


 


(c)                                  A breach of sub-paragraph (b) shall
not constitute a Default if:


 


(i)                                    one or more members of the
Bank Group become Obligors in accordance with Clause 26.1 (Acceding Borrowers) and Clause 26.2 (Acceding Guarantors) within
5 Business Days of the delivery of a Compliance Certificate by the
Borrower demonstrating that the 80% Security Test is not satisfied; and


 


122

















 


(ii)                                the Facility Agent (acting
reasonably) is satisfied that the 80% Security Test would have been satisfied
on the relevant Quarter Date if such Compliance Certificate had been prepared
on the basis that such members of the Bank Group had been Obligors as at that
Quarter Date.


 


(d)                                  In relation to any provision
of this Agreement which requires the Obligors or any member of the Bank Group
to deliver a Security Document for the purposes of granting any guarantee or
Security for the benefit of the Finance Parties, the Security Trustee agrees to
execute as soon as reasonably practicable, any such guarantee or Security
Document which is presented to it for execution.


 


(e)                                  At any time after an Event of
Default has occurred and whilst such Event of Default is continuing, each
Obligor shall, at its own expense, take any and all action as the Security
Trustee may deem necessary for the purposes of perfecting or otherwise
protecting the Lenders’ interests in the Security constituted by the Security
Documents.


 


24.13                 Centre of Main Interests


 


No Obligor
incorporated or otherwise existing under the laws of England & Wales
shall (and the Company shall procure that no other member of the Bank Group
incorporated or otherwise existing under the laws of England & Wales
shall), without the prior written consent of an Instructing Group, cause or allow
its Centre of Main Interests to change to a country other than England.


 


24.14                 Group Structure Chart


 


If there is a
material change or inaccuracy in the corporate structure of the Bank Group or
any Holding Companies of the Company from that set out in the Group Structure
Chart most recently delivered to the Facility Agent, including upon
consummation of the Merger, the Company shall deliver or procure that there is
delivered to the Facility Agent, as soon as practicable upon becoming
available, an updated Group Structure Chart containing information sufficient
to evidence the matters set out in paragraphs (a) to (d) of Clause
21.19 (Structure) and showing such material
change or correcting such inaccuracy.


 


24.15                 Contributions to the Bank Group


 


The Company shall
procure that any monies which are at any time contributed by any member of the
Group to any member of the Bank Group shall be contributed by way of
Subordinated Funding, by way of an investment through capital contribution or a
subscription or issuance of securities or convertible unsecured loan stock in
the relevant member of the Bank Group.


 


24.16                 “Know your client” checks


 


(a)                                  Each Obligor shall promptly
upon the request of the Facility Agent or any Lender and each Lender shall
promptly upon the request of the Facility Agent supply, or procure the supply
of, such documentation and other evidence as is reasonably requested by the
Facility Agent (for itself or on behalf of any Lender) or any Lender (for
itself or on behalf of any prospective Transferee in order for the Facility
Agent, such Lender or any prospective Transferee to carry out and be satisfied
with the results of all necessary “know your client” or other applicable
anti-money laundering checks in relation to the identity of any person that it
is required to carry out in relation to the transactions contemplated in the
Finance Documents.


 


(b)                                  The Company shall, by not less
than 3 Business Days written notice to the Facility Agent,
notify the Facility Agent (which shall promptly notify the Lenders) of its
intention to request that one of its wholly-owned Subsidiaries becomes an
Acceding Obligor pursuant to Clause 26 (Acceding
Group Companies) (provided that no such notice shall be required to
be 


 


123

















 


given in respect of any Obligor where any such person
is required or intends to accede to this Agreement pursuant to Clause 3.4 (Baseball Conditions
Subsequent).


 


(c)                                  Following the giving of any
notice pursuant to paragraph (b) above, the Company shall promptly upon
the request of the Facility Agent or any Lender supply, or procure the supply
of, such documentation and other evidence as is reasonably requested by the
Facility Agent (for itself or on behalf of any Lender) or any Lender (for
itself or on behalf of any prospective Transferee to carry out and be satisfied
with the results of all necessary “know your client” or other applicable
anti-money laundering checks in relation to the identity of any person that it
is required to carry out in relation to the accession of such Acceding Borrower
or Acceding Guarantor to this Agreement.


 


24.17                 Change in Auditors


 


The Obligors shall
ensure that its auditors are (and in the case of the Company, the Bank Group’s
auditors are) any one of the
Permitted Auditors provided that in the event of any change in such auditors
(other than in connection with the Merger), the relevant Obligor (or the
Company, in the case of any change to the Bank Group’s auditors) shall promptly
notify the Facility Agent of such change.


 


24.18                 Syndication


 


(a)                                  Each of the Obligors shall
(and the Company shall procure that each member of the Bank Group shall)
co-operate with and assist the Mandated Lead Arrangers in connection with the
primary syndication of the Facilities in a manner consistent with normal market
practice including (but not limited to) by:


 


(i)                                    providing such financial and
other information relating to the Group as the Mandated Lead Arrangers, acting
reasonably, may deem necessary to achieve Successful Syndication provided that
no such information shall be required to be so provided to the extent that the
same would require a filing to be made by any Obligor with the SEC as a result
thereof;


 


(ii)                                in line with normal market
practice, assisting the Mandated Lead Arrangers in the preparation of any
supplemental materials to the Information Memoranda;


 


(iii)                            allow attendance by senior
management of the Ultimate Parent and the Company at one or more bank
presentations or meeting with potential lenders at such times and places as the
Mandated Lead Arrangers may agree with the Ultimate Parent and the Company; and


 


(iv)                               use reasonable efforts to
ensure that the syndication efforts benefit from the Group’s existing lending
relationships, 


 


provided that no Obligor shall be required to provide
any information where, having regard to the relevance of that information to
the achievement of Successful Syndication, it would be unreasonable to do so.


 


(b)                                  Without prejudice to the
provisions of paragraph (a), no Obligor shall be required to take any action or
to deliver any information that would conflict with any applicable Law to which
it is bound or other applicable regulation including the Takeover Code, US
Federal securities laws, the laws of Delaware, or to provide any disclosures that
would require a filing with the U.S. Securities and Exchange Commission, or
cause it or any of its Subsidiaries to breach any applicable confidentiality
undertaking to which it is bound or which might prejudice its entitlement to or
retention of legal privilege in any document. 
In the event that the Mandated Lead Arrangers request any information to
be disclosed or action to be taken which is subject 


 


124

















 


to a confidentiality undertaking, the Parent or the
relevant Obligor as the case may be, shall use its reasonable endeavours to
obtain the consent of the relevant beneficiary of such confidentiality
undertaking to such action in order to allow such disclosure or action to be
taken.


 


24.19                 Assets


 


Each Obligor shall
(and the Company shall procure that each member of the Bank Group shall)
maintain and preserve all of its assets that are necessary in the conduct of
its business as it is conducted from time to time, in good working order and
condition subject to ordinary wear and tear where any failure to do so could be
reasonably expected to have a Material Adverse Effect.


 


24.20                 ERISA


 


(a)                                  As soon as possible and, in
any event, within 20 days after a Borrower or any Obligor knows or has reason
to know of the occurrence of any of the events specified in paragraph (b) of
this Clause 24.20, such Borrower or such Obligor will deliver to the Facility
Agent in sufficient copies for each Lender a certificate of the chief financial
officer of such Borrower or such Obligor setting out full details as to such
occurrence and the action, if any, that the relevant member of the Group or
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given or filed by such member of the Group, the Plan
administrator or such ERISA Affiliate to or with any government agency, or a
Plan participant and any notices received by such member of the Group or ERISA
Affiliate from any government agency, or a Plan participant with respect to it.


 


(b)                                  The events referred to in
paragraph (a) of this Clause 24.20 are:


 


(i)                                    any contribution required to
be made with respect to a Plan or Foreign Pension Plan is not made before or
within 30 days following the time limit therefor;


 


(ii)                                any member of the Group or any
ERISA Affiliate incurs or is reasonably expected to incur any material
liability with respect to a Plan under section 4975 or 4980 of the Code or
section 409, 502(i) or 502(l) of ERISA or with respect to a group
health plan (as defined in section 607(1) of ERISA or section 4980B(g)(2) of
the Code) maintained by a Borrower or any member of the Group under section 4980B
of the Code; and


 


(iii)                            any member of the Group incurs
or reasonably expects to incur any material liability pursuant to any employee
welfare benefit plan (as defined in section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by section 601 of ERISA).


 


(c)                                  Subject to all applicable data
protection laws, the Ultimate Parent shall procure that each member of the
Group will deliver to the Facility Agent in sufficient copies for each of the
Lenders:


 


(i)                                    a complete copy of the annual
report (on Internal Revenue Service Form 5500-series (including, to the
extent required, the related financial and actuarial statements and opinions
and other supporting statements, certifications, schedules and information)) of
each Plan required to be filed with the Internal Revenue Service and/or the
Department of Labor;


 


(ii)                                copies of annual reports and
any records, documents or other information required to be furnished by such
member of the Group or any ERISA Affiliate with respect to any Plan to any
government agency; and


 


125






 













 


(iii)                            any material notices received
by a member of the Group or any ERISA Affiliate with respect to any Plan or
Foreign Pension Plan, in the case of each of (i), (ii), and (iii), no later
than 30 days (or 10 days in the case of this paragraph (iii)) after the date
such annual report has been filed with the Internal Revenue Service and/or the
Department of Labor or such records, documents and/or information has been
furnished to any other government agency or such notice has been received by
such member of the Group or ERISA Affiliate, as applicable.


 


(iv)                               The Ultimate Parent shall
procure that each member of the Group shall ensure that all Foreign Pension
Plans administered by them or into which they make payments, obtain or retain
(as applicable) registered status under and as required by applicable law and
are administered in a timely manner in all respects in compliance with all
applicable laws, in the case of each of the foregoing, except where the failure
to do any of the foregoing will not have a Material Adverse Effect.


 


24.21                 Steps Paper


 


The Ultimate Parent shall (and it shall procure that
each member of the Group shall, as applicable) implement each of the steps
required for the consummation of the Merger and reorganisation of the Group in
accordance with the Steps Paper and in particular, without limitation to the
foregoing provision:


 


(a)                                  on the Merger Closing Date, to
implement each of Steps 1 and 2 set out in the page headed “Combination of NTL and Telewest” of the Steps Paper  culminating in the structure set out on the page headed
“Interim Structure After Step 2” and
thereafter;


 


(i)                                    if the Structure Notice is
delivered prior to the Merger Closing Date, immediately after the action taken
pursuant to paragraph (a) above, to implement each of the Steps 3 to 10
set out on the pages headed “Post-Combination
Restructuring - Second Alternative (Structure 2)”, culminating in
the structure set out on the page headed “Second
Alternative (Structure 2) – Final Structure”; or


 


(ii)                                if NTL receives a negative IRS
Ruling prior to the Merger Closing Date, immediately after the action taken
pursuant to paragraph (a) above, to implement each of the Steps 3 to 8
(including, at the Company’s option, the alternative Step 6x described therein)
set out on the page headed “Post-Combination
Restructuring – First Alternative (Structure 1)” of
the Steps Paper, culminating in the structure set out on the page headed “First Alternative (Structure 1) – Final Structure (assumes Step 6)”
or the structure set out on the page headed “Post-Combination
Restructuring – Alternative Step 6x (Structure 1)”;


 


in each case, such
that all of those steps are completed on the Merger Closing Date;


 


(b)                                  if NTL receives neither a
negative nor a positive IRS Ruling prior to the Merger Closing Date, to
implement each of Steps 1 and 2 set out on the page headed “Combination of NTL and Telewest” of the Steps Paper,
culminating in the structure set out on the page headed “Interim Structure After Step 2” such that all of those steps
are completed on the Merger Closing Date, and thereafter:


 


(i)                                    if a negative IRS Ruling is
obtained prior to the Structuring Completion Date, to implement each of Steps 3
to 8 (including, at the Company’s option, the alternative Step 6x described
therein) set out on the page headed “Post-Combination
Restructuring - First Alternative (Structure 1)” of
the Steps Paper, culminating in the structure set out on the page headed “First Alternative (Structure 1) – Final Structure (assumes Step 6)”
or the structure set out on the page headed “Post-Combination


 


126

















 


Restructuring – Alternative Step 6x
(Structure 1)”, such that all such steps are completed on the same Business Day and
in any event by no later than 10 Business Days after such negative IRS Ruling
is received;


 


(ii)                                if a positive IRS Ruling is
obtained prior to the date falling 10 Business Days prior to the Structuring
Completion Date, at the option of the Borrowers:


 


(1)                                 to deliver a Structure Notice and
thereafter to implement each of Steps 3 to 10 set out on the pages headed “Post Combination Restructuring – Second Alternative (Structure 2)”
of the Steps Paper, culminating in the structure set out on the page headed
“Second Alternative (Structure 2) – Final Structure”,
such that all such steps are completed on the same Business Day and in any
event by no later than 10 Business Days after such positive IRS Ruling is
received; or 


 


(2)                                 to implement each of Steps 3 to 8
(including, at the Company’s option, the alternative Step 6x described therein)
set out on the page headed “Post-Combination
Restructuring - First Alternative (Structure 1)” of
the Steps Paper, culminating in the structure set out on the page headed “First Alternative (Structure 1) – Final Structure (assumes Step 6)”
or the structure set out on the page headed “Post-Combination
Restructuring – Alternative Step 6x (Structure 1)”, such that all such steps are completed on the same
Business Day and in any event by no later than 10 Business Days after such
positive IRS Ruling is received; and


 


(iii)                            if neither a negative nor a
positive IRS Ruling is obtained prior to the date falling 10 Business Days
prior to the Structuring Completion Date, to implement each of Steps 3 to 8
(including, at the Company’s option, the alternative Step 6x described therein)
set out on the page headed “Post-Combination
Restructuring - First Alternative (Structure 1)” of
the Steps Paper, culminating in the structure set out on the page headed “First Alternative (Structure 1) – Final Structure (assumes Step 6)”
or the structure set out on the page headed “Post-Combination
Restructuring – Alternative Step 6x (Structure 1)”, such that all such steps are completed on the same
Business Day and in any event by no later than the Structuring Completion Date;


 


(c)                                  if the Baseball Effective Date
occurs (and Step V1 and V2 described below can be implemented prior to the
Structuring Completion Date), to implement each of the Steps V1 and V2 on the page headed
“Acquisition of Virgin Mobile Pre-Restructuring”,
culminating in the structure set out on the page headed “After Virgin Mobile Pre-Restructuring”, such that both of
those steps are completed on the same Business Day, on a date falling not more
than 15 days after the Baseball Effective Date; 


 


(d)                                  if the Baseball Effective Date
occurs after the Structuring Completion Date (or Steps V1 and V2 referred to
above cannot be implemented before the Structuring Completion Date) and the
provisions of either sub-paragraphs (b)(i), (b)(ii)(2) or (b)(iii) above
have been implemented, to implement each of the Steps 0a and 0b on the page headed
“Structure 1  Acquisition
of Virgin Mobile”, culminating in the structure set out on the page headed
“Structure 1 Post  Virgin
Mobile Acquisition (assumes Step 6)” or the structure set out on the
page headed “Structure 1 Post  Virgin Mobile Acquisition (assumes Step 6x)”, such that both
of those steps are completed on the same Business Day, on a date falling not
more than 15 days after the Baseball Effective Date; or


 


(e)                                  if the Baseball Effective Date
occurs after the Structuring Completion Date (or Steps V1 and V2 referred to
above cannot be implemented before the Structuring Completion Date) and the
provision of sub-paragraph (b)(ii)(1) above has been implemented, to
implement each of the


 


127

















 


Steps 0a and 0b on the page headed “Structure 2  Virgin Mobile Acquisition”,
culminating in the structure set out on the page headed “Structure 2 Post-Virgin Mobile Acquisition”,
such that both of those steps are completed on the same Business Day, on a date
falling not more than 15 days after the Baseball Effective Date,


 


in each case, with such
amendments, variations or modifications as the Ultimate Parent shall deem
necessary, provided that no such amendment, variation or modification could
reasonably be expected to be materially adverse to the interests of the
Lenders.


 


24.22                 Baseball Scheme Undertakings


 


Other than with the consent of a Baseball Instructing
Group, acting reasonably (which consent shall be deemed to have been given if
not given or refused within 48 hours of request), Baseball Cash Bidco shall
comply and the Company shall procure that Baseball Stock Bidco shall comply,
with each of the following covenants:


 


(a)                                  it shall ensure that the
Baseball Scheme Circular is on substantially the terms set out in the Baseball
Press Release, other than with respect to any amendments which could not
reasonably be expected to be materially prejudicial to the interests of the
Lenders;


 


(b)                                  it shall not make any
amendments to the Baseball Implementation Agreement, other than with respect to
any amendments which could not reasonably be expected to be materially
prejudicial to the interests of the Lenders;


 


(c)                                  it shall ensure that the
Baseball Scheme Circular is posted within 28 days of issuance of the Baseball
Press Release, or if later, as soon as practicable after the date on which the
Court convenes a meeting of the shareholders of Baseball to consider the
Baseball Scheme;


 


(d)                                  it shall comply with all
applicable laws and regulations (including, without limitation, the Act, the
Financial Services and Markets Act 2000, the Takeover Code (subject to any
applicable waivers by the Takeover Panel) and the Listing Rules of the
Financial Services Authority (as applicable);


 


(e)                                  it shall keep the Facility
Agent informed of the material developments of the Baseball Scheme and the
Baseball Acquisition and notify the Facility Agent of any circumstances which may lead
to withdrawal of the Baseball Scheme or the Baseball Acquisition;


 


(f)                                    it shall provide the Facility
Agent with any material updated financial information on the Baseball Group,
and such other information relevant to the Baseball Scheme and the Baseball
Acquisition as the Facility Agent may reasonably request (including
without limitation, copies of any press or public announcements and any
material documents or statements issued by the Takeover Panel or any regulatory
authority in connection with the Baseball Scheme or the Baseball Acquisition); 


 


(g)                                 it shall not increase the cash
price per share under the cash only option at which the Baseball Acquisition is
being  made;


 


(h)                                 it shall not waive or amend
any condition to the Baseball Scheme as set out in the Baseball Scheme
Documents, except in any case where such amendment or waiver:


 


(i)                                    could not reasonably be
expected to be materially prejudicial to the interests of the Lenders; or


 


(ii)                                is required by the Takeover
Panel, the Takeover Code, the rules or requirements of any stock exchange
with jurisdiction over Baseball Cash Bidco or any other


 


128

















 


applicable law or regulation;


 


(i)                                    it shall not make any public
statements relating to the financing of the Baseball Acquisition unless
required to do so by the Takeover Code or Takeover Panel, any applicable stock
exchange with jurisdiction over Baseball Cash Bidco or any applicable
governmental or other regulatory authority; 


 


(j)                                    it shall ensure that neither
of the Baseball Bidcos, nor (using all reasonable endeavours) any person Acting
in Concert (as defined in the Takeover Code) with them, shall be obliged to
make an offer to shareholders of Baseball under Rule 9 of the Takeover
Code; and


 


(k)                                it shall procure that as soon
as reasonably practicable, after the Baseball Effective Date, Baseball is
delisted and re-registered as a private company.


 


25.                               NEGATIVE UNDERTAKINGS


 


25.1                        Content Transaction


 


(a)                                  Notwithstanding any other
provisions of this Agreement, no Content Transaction shall be restricted by
(nor deemed to constitute a utilization of any of the permitted exceptions to)
any provision of this Agreement, neither shall the implementation of any
Content Transaction constitute a breach of any provision of any Finance
Document, provided that:


 


(i)                                    the cash proceeds of any
Content Transaction are applied in accordance with Clause 12 (Mandatory Prepayment and Cancellation);


 


(ii)                                after giving pro forma effect
for such Content Transaction, the Group and the Bank Group continue to be in
compliance with Clause 23.2 (Ratios); and


 


(iii)                            at the time of completion of
such Content Transaction, no Event of Default has occurred and is continuing
and no Event of Default would occur as a result of such Content Transaction.


 


(b)                                  Any Joint Venture established
pursuant to a Content Transaction shall thereafter not be subject to any
restrictions under this Agreement.


 


25.2                        Negative Pledge


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall), without
the prior written consent of an Instructing Group, create or permit to subsist
any Encumbrance over all or any of its present or future revenues or assets
other than an Encumbrance:


 


(a)                                  which is an Existing
Encumbrance set out in:


 


(i)                                    Part 1A of Schedule 10
(Existing Encumbrances) provided
that such Encumbrance is released within 10 Business Days of the Merger Closing
Date; or


 


(ii)                                Part 1B of Schedule 10
(Existing Encumbrances) provided that the
principal amount secured thereby may not be increased unless any
Encumbrance in respect of such increased amount would be permitted under
another paragraph of this Clause 25.2;


 


(b)                                  which arises by operation of
Law or by a contract having a similar effect or under an escrow arrangement
required by a trading counterparty of any member of the Bank Group and in each
case arising or entered into the ordinary course of business of the relevant
member of the Bank Group;


 


129

















 


(c)                                  which is created pursuant to
any of the Finance Documents (including, for the purposes of securing any
Alternative Baseball Financing);


 


(d)                                  arising from any Finance
Leases, sale and leaseback arrangements or Vendor Financing Arrangements
permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness)


 


(e)                                  which arises in respect of any
right of set-off, netting arrangement, title transfer or title retention
arrangements which:


 


(i)                                    arises in the ordinary course
of trading and/or by operation of Law;


 


(ii)                                is entered into by any member
of the Bank Group in the normal course of its banking arrangements for the
purpose of netting debit and credit balances on bank accounts of members of the
Bank Group operated on a net balance basis;


 


(iii)                            arises in respect of netting
or set off arrangements contained in any Hedging Agreement or other contract
permitted under Clause 25.12 (Limitations on
Hedging); 


 


(iv)                               is entered into by any member
of the Bank Group on terms which are generally no worse than the counterparty’s
standard or usual terms and entered into in the ordinary course of business of
the relevant member of the Bank Group; or


 


(v)                                   which is a retention of title
arrangement with respect to customer premises equipment in favour of a supplier
(or its Affiliate); provided that the title is only retained to individual
items of customer premises equipment in respect of which the purchase price has
not been paid in full;


 


(f)                                    which arises in respect of any
judgment, award or order or any tax liability for which an appeal or
proceedings for review are being diligently pursued in good faith, provided
that the affected member of the Bank Group shall have or will establish such
reserves as may be required under applicable generally accepted accounting
principles in respect of such judgment, award, order or tax liability;  


 


(g)                                 over or affecting any asset
acquired by a member of the Bank Group after the date of this Agreement and
subject to which such asset is acquired, if:


 


(i)                                    such Encumbrance was not
created in contemplation of the acquisition of such asset by a member of the
Bank Group; and


 


(ii)                                the Financial Indebtedness
secured thereby is Financial Indebtedness of, or is assumed by, the relevant
acquiring member of the Bank Group, is Financial Indebtedness which at all
times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial
Indebtedness so secured is not increased at any time;


 


(h)                                 over or affecting any asset of
any company which becomes a member of the Bank Group after the date of this
Agreement, where such Encumbrance is created prior to the date on which such
company becomes a member of the Bank Group, if:


 


(i)                                    such Encumbrance was not
created in contemplation of the acquisition of such company; and 


 


(ii)                                to the extent not repaid by
close of business on the date upon which such company became a member of the
Bank Group, the Financial Indebtedness secured by such


 


130

















 


Encumbrance at all times falls within paragraph (g) or
(k) of Clause 25.4 (Financial Indebtedness);


 


(i)                                    constituted by a rent deposit
deed entered into on arm’s length commercial terms and in the ordinary course
of business securing the obligations of a member of the Bank Group in relation
to property leased to a member of the Bank Group; 


 


(j)                                    constituted by an arrangement
referred to in paragraph (d) of the definition of Financial Indebtedness;


 


(k)                                which is granted over the
shares of, Indebtedness owed by or other interests held in, or over the assets
(including, without limitation, present or future revenues), attributable to a
Project Company, a Bank Group Excluded Subsidiary or a Permitted Joint Venture;


 


(l)                                    over cash deposited as
security for the obligations of a member of the Bank Group in respect of a
performance bond, guarantee, standby letter of credit or similar facility
entered into in the ordinary course of business of the Bank Group;


 


(m)                              which is created by any member
of the Bank Group in substitution for any Existing Encumbrance referred to in
paragraph (a)(ii) above of this Clause 25.2, provided that the principal
amount secured thereby may not be increased unless any Encumbrance in
respect of such increased amount would be permitted under another paragraph of
this Clause 25.2;


 


(n)                                 securing the Existing Baseball
Facilities, provided that such Encumbrance is released within 10 Business Days
of the Baseball Effective Date; or


 


(o)                                  securing Financial
Indebtedness the principal amount of which (when aggregated with the principal
amount of any other Financial Indebtedness which has the benefit of an
Encumbrance other than as permitted pursuant to paragraphs (a) to (n)
above) does not exceed £300 million (or its equivalent in other currencies):


 


(i)                                    of which up to £250 million
(or its equivalent in other currencies) may be secured on assets not
subject to the Security; and 


 


(ii)                                which may be secured on a
second ranking basis over assets subject to the Security, provided that such
second ranking security shall be granted on terms where the rights of the
relevant mortgagee, chargee or other beneficiary of such security in respect of
any payment will be subordinated to the rights of the Finance Parties under the
HYD Intercreditor Agreement or any other intercreditor arrangement which is
either:


 


(A)                               on terms satisfactory to the Facility
Agent (acting on the instructions of an Instructing Group); or 


 


(B)                               on terms comparable to the Existing Telewest Second
Lien Credit Facility Agreement and related intercreditor agreement,


 


provided that in either case, each of the Finance
Parties agrees to execute such intercreditor agreement as soon as practicable
following request from the Company.


 


25.3                        Loans and Guarantees


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall), without
the prior written consent of an Instructing Group, grant any loan or credit or
give any guarantee in any such case in respect of Financial Indebtedness, other
than:


 


131

















 


(a)                                  any extension of trade credit
or guarantees, bonds or indemnities granted in the ordinary course of business
on usual and customary terms;


 


(b)                                  any credit given by a member
of the Bank Group to another member of the Bank Group which arises by reason of
cash-pooling, set-off or other cash management arrangement of the Bank Group;


 


(c)                                  the Existing Loans provided
that the aggregate principal amount outstanding thereunder may not be
increased from that existing at the date of this Agreement in reliance on this
paragraph (c) (except with respect to accrual or capitalisation of
interest);


 


(d)                                  any loans or credit granted:


 


(i)                                    by a member of the Bank Group
which is not an Obligor to an Obligor by way of Subordinated Funding;


 


(ii)                                by one Obligor to another
Obligor; 


 


(iii)                            by a member of the Bank Group
which is not an Obligor to any other member of the Bank Group which is not an
Obligor; or


 


(iv)                               by a member of the Bank Group
to the relevant member of the Group for the purposes of funding drawings
available under the undrawn portion of any Existing UKTV Group Loan Stock of up
to £50 million in aggregate;


 


(v)                                   in accordance with Clause 25.9
(Joint Ventures);


 


(vi)                               by the US Borrower pursuant to
the Notes;


 


(e)                                  any loans made by any member
of the Bank Group to its employees either:


 


(i)                                    in the ordinary course of its
employees’ employment; or


 


(ii)                                to fund the exercise of share
options or the purchase of capital stock by its employees, directors, officers
or consultants of the Group,


 


provided that the aggregate principal amount of all
such loans shall not at any time exceed £10 million (or its equivalent in other
currencies);


 


(f)                                    any loan made by a member of
the Bank Group pursuant to either an Asset Passthrough or a Funding
Passthrough;


 


(g)                                 any loan made by a member of
the Bank Group to a member of the Group, where the proceeds of such loan are,
or are to be (whether directly or indirectly) used:


 


(i)                                    to make payments to the High
Yield Trustee in respect of High Yield Trustee Amounts (as such terms are
defined in the HYD Intercreditor Agreement) in respect of the Existing High
Yield Notes;


 


(ii)                                to make payments to the High
Yield Trustee in respect of High Yield Trustee Amounts (as such terms are
defined in the HYD Intercreditor Agreement) in respect of the NTL High Yield
Notes;


 


(iii)                            to make equivalent payments to
those specified in paragraphs (i) and (ii) above in respect of
any High Yield Refinancings; 


 


132

















 


(iv)                               provided that no Event of
Default has occurred and is continuing or is likely to occur as a result
thereof to fund Permitted Payments; or 


 


(v)                                   at any time after the
occurrence of an Event of Default, to fund Permitted Payments to the extent not
prohibited by the HYD Intercreditor Agreement, the Group Intercreditor
Agreement or any other applicable intercreditor agreement;


 


(h)                                 credit granted by any member
of the Bank Group to a member of the Group, where the Indebtedness outstanding
thereunder relates to Intra-Group Services provided that where such credit relates to services
falling within sub-paragraphs (c)(i) and (c)(iii) of the definition
of Intra-Group Services the settlement of any such credit estimated by the
Borrower to be owed by members of the Group which are not Obligors shall take
place no later than the first Business Day falling 60 days after the end of
each Financial Quarter provided that any such settlement may occur by way
of set-off and further provided that any overpayment or underpayment arising as
a result of the settlement of all such credit may be returned to the
overpaying party or paid by the underpaying party (and any credit or Financial
Indebtedness arising as a result of such overpayment or underpayment pending
repayment to the overpaying party or payment by the underpaying party is hereby
permitted);


 


(i)                                    any guarantee given in respect
of membership interests in any company limited by guarantee where the
acquisition of such membership interest is permitted under Clause 25.13 (Acquisitions and Investments); 


 


(j)                                    any guarantee given by a
member of the Bank Group in respect of or constituted by any Financial
Indebtedness permitted under Clause 25.4 (Financial Indebtedness)
or Clause 25.10 Transactions with Affiliates) or
other obligation not restricted by the terms of the Finance Documents, of
another member of the Bank Group; 


 


(k)                                any guarantees arising under
the Finance Documents (including any guarantees given in respect of an
Alternative Baseball Financing);


 


(l)                                    any customary title guarantee
given in connection with the assignment of leases where such assignment is
permitted under Clause 25.6 (Disposals);


 


(m)                              any guarantees or similar
undertakings granted by any member of the Bank Group in favour of the Inland
Revenue in respect of any obligations of NTL (UK) Group, Inc. in respect
of UK tax in order to facilitate the winding up of NTL (UK) Group, Inc.
provided that the Facility Agent shall have first received confirmation from
the Company that based on discussions with the Inland Revenue and the Company’s
reasonable assumptions, the Company does not believe that the liability under
such guarantee will exceed £15 million (such confirmation to be supported by a
letter from the Company’s auditors for the time being, confirming that based on
the Company’s calculations of such tax liability the Company’s confirmation is
a reasonable assessment of such tax liability);


 


(n)                                 any loan granted as a result
of a Subscriber being allowed terms, in the ordinary course of trade, whereby
it does not have to pay for the services provided to it for a period after the
provision of such services; 


 


(o)                                  any loans or guarantees
expressly contemplated under the Steps Paper; 


 


(p)                                  a loan made or a credit
granted to a Joint Venture to the extent permitted under paragraph (d) of
Clause 25.9 (Joint Ventures);


 


(q)                                  any loans made under the terms
of the Screenshop Intra-Group Loan Agreement;


 


133

















 


(r)                                  the BBC Guarantees; and


 


(s)                                  loans made, credit granted or
guarantees given by any member of the Bank Group not falling within paragraphs (a) to
(r) above, in an aggregate amount not exceeding £75 million (or its equivalent
in other currencies).


 


25.4                        Financial Indebtedness


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall), without
the prior written consent of an Instructing Group incur, create or permit to
subsist or have outstanding any Financial Indebtedness or enter into any
agreement or arrangement whereby it is entitled to incur, create or permit to
subsist any Financial Indebtedness other than in either case:


 


(a)                                  Financial Indebtedness arising
under or pursuant to the Finance Documents (including in respect of any
outstanding Documentary Credit and arising in respect of any Alternative
Baseball Financing);


 


(b)                                  Existing Financial
Indebtedness provided that the Existing Credit Facilities shall be repaid in
full immediately upon the making of the first Advance under this Agreement;


 


(c)                                  Financial Indebtedness arising
in respect of the Existing High Yield Notes, the NTL High Yield Notes or any
High Yield Refinancing and any guarantee given by any member of the Bank Group
thereunder provided that such guarantee is given on a subordinated unsecured
basis and is subject to the terms of the HYD Intercreditor Agreement or given
on subordination terms consistent with those contained in the HYD Intercreditor
Agreement;


 


(d)                                  Financial Indebtedness of any
member of the Bank Group falling within, and permitted by Clause 25.3 (Loans and Guarantees);


 


(e)                                  Financial Indebtedness arising
under any Hedging Agreements permitted under Clause 25.12 (Limitations on Hedging);



 


(f)                                    Financial Indebtedness arising
in relation to either an Asset Passthrough or a Funding Passthrough;


 


(g)                                 Financial Indebtedness of any
company which became or becomes a member of the Bank Group after the date of
this Agreement, where such Financial Indebtedness arose prior to the date on
which such company became or becomes a member of the Bank Group; if:


 


(i)                                    such Financial Indebtedness
was not created in contemplation of the acquisition of such company;


 


(ii)                                the aggregate principal amount
of all of the Financial Indebtedness assumed in reliance on this paragraph (g) either
(1) does not exceed £75 million (or its equivalent in other
currencies) outstanding at any time or (2) to the extent such Financial
Indebtedness does exceed £75 million, an amount equal to such excess is repaid
promptly thereafter; 


 


(h)                                 Financial Indebtedness arising
in respect of any guarantee given by the Company or TCN or any other member of
the Bank Group in respect of the relevant borrower’s obligations under any
Parent Debt (“Guaranteed Parent Debt”), provided that:


 


(i)                                    the proceeds of such Guaranteed
Parent Debt
are contributed into the Bank Group in accordance with Clause 24.15 (Contributions to the Bank Group) and applied towards the
Group Business or in a business whose primary operations are directly related
to


 


134

















 


the Group Business; and


 


(ii)                                any such guarantee is given on
a subordinated unsecured basis and is subject to the terms of the HYD
Intercreditor Agreement, the Group Intercreditor Agreement or any other
applicable intercreditor agreement in form satisfactory to an Instructing
Group;


 


(i)                                    Financial Indebtedness which
is expressly contemplated by the Steps Paper;


 


(j)                                    Financial Indebtedness which
constitutes Subordinated Funding provided that each Obligor that is a debtor in
respect of Subordinated Funding shall (and the Borrower shall procure that each
member of the Bank Group that is a debtor in respect of Subordinated Funding
shall) procure that the relevant creditor of such Subordinated Funding, to the
extent not already a party at the relevant time, accedes to the Group
Intercreditor Agreement or the HYD Intercreditor Agreement, as appropriate, in
such capacity, upon the granting of such Subordinated Funding; 


 


(k)                                Financial Indebtedness arising
under (i) Finance Leases or (ii) Vendor Financing Arrangements, to
the extent that such Finance Leases and/or Vendor Financing Arrangements (x)
comprise Existing Vendor Financing Arrangements or any refinancing or rollover
thereof,  or (y) comprise Finance Leases
and/or Vendor Financing Arrangements entered into after the Merger Closing
Date, provided that in the case of clause (x) and (y) the aggregate principal
amount thereof does not at any time exceed £150 million plus the principal amount
of such Finance Leases and Vendor Financing Arrangements outstanding on the
Merger Closing Date; and provided further that, in each case, the relevant
lessor or provider of Vendor Financing Arrangements does not have the benefit
of any Encumbrance other than over the assets the subject of such Vendor
Financing Arrangements and/or Finance Leases;


 


(l)                                    Financial Indebtedness
relating to deferral of PAYE taxes with the agreement of the Inland Revenue by
any member of the Bank Group;


 


(m)                              Financial Indebtedness arising
in respect of Existing Performance Bonds or any performance bond, guarantee,
standby letter of credit or similar facility entered into by any member of the
Bank Group to the extent that cash is deposited as security for the obligations
of such member of the Bank Group thereunder; 


 


(n)                                 Financial Indebtedness not
falling within paragraphs (a) to (m) of any members of the Bank Group provided that the aggregate amount of such
Financial Indebtedness outstanding at any time when taken together with the
aggregate outstanding amount in respect of Finance Leases and Vendor Financing
Agreements entered into after the Merger Closing Date, does not exceed £300
million (or its equivalent in other currencies) (less any portion of the basket
utilised under paragraph (k) above) and further provided that in the case of
any Financial Indebtedness constituted by an overdraft facility which operates
on a gross/net basis, only the net amount of such facility shall count towards
such aggregate amount.


 


25.5                        Dividends, Distributions and
Share Capital


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall):


 


(a)                                  declare, make or pay any
dividend (or interest on any unpaid dividend), charge, fee or other
distribution (whether in cash or in kind) on or in respect of any of its
shares; 


 


(b)                                  redeem, repurchase, defease,
retire or repay any of its share capital, or resolve to do so;


 


(c)                                  repay or distribute any share
premium account; or


 


135

















 


(d)                                  repay or otherwise discharge
or purchase any amount of principal of (or capitalised interest on) or pay any
amount of interest in respect of Subordinated Funding,


 


other than:


 


(i)                                    to the extent the share
capital of such Obligor is held by one or more other Obligors or to the extent
the share capital of any such member of the Bank Group which is not an Obligor
is held by one or more other members of the Bank Group;


 


(ii)                                to the extent discharged in
consideration of a transfer of any non-cash asset the disposal of which is not
otherwise prohibited by this Agreement, by the waiver of any payment where no
cash consideration is given in respect of such waiver or by way of conversion
into any securities (including convertible unsecured loan stock), (or vice versa),
which do not involve any cash payments or by way of capital contribution to the
debtor in respect of such Subordinated Funding;


 


(iii)                            to the extent required for the
purpose of making payments to:


 


(A)                               the indenture trustee for the Existing
High Yield Notes in respect of High Yield Trustee Amounts (as such term is
defined in the HYD Intercreditor Agreement); 


 


(B)                               the indenture trustee for the NTL High Yield Notes in
respect of High Yield Trustee Amounts (as such term is defined in the HYD
Intercreditor Agreement); or


 


(C)                               for the purpose of making payments in respect of any
similar amounts to the indenture trustee in respect of any High Yield
Refinancing; 


 


(iv)                               provided that no Event of
Default has occurred and is continuing or is likely to occur as a result
thereof, to the extent required to fund Permitted Payments; 


 


(v)                                   at any time after the
occurrence of an Event of Default, to the extent required to fund Permitted
Payments not otherwise prohibited by the HYD Intercreditor Agreement and the
Group Intercreditor Agreement; or


 


(vi)                               to the extent such redemption,
repurchase, defeasance, retirement or repayment is in respect of a nominal
amount.


 


The Lenders hereby
consent to any transaction or matter to the extent expressly permitted under
paragraphs (i) to (vi) above.


 


25.6                        Disposals


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall), without
the prior written consent of an Instructing Group, either in a single
transaction or in a series of related transactions, sell, transfer, lease
or otherwise dispose of any shares in any of its Subsidiaries or all or any part of
its revenues, assets, other shares, business or undertakings other than in the
ordinary course of business or trading (which, for the avoidance of doubt,
includes mast sharing arrangements) and other than:


 


(a)                                  any payment required to be
made under the Finance Documents (including any payment required to be made
under any Alternative Baseball Financing);


 


136

















 


(b)                                  the disposal of obsolete or
surplus assets no longer required for the efficient operation of the Group
Business, on arms’ length commercial terms;


 


(c)                                  disposals of cash, the lending
or repayment of cash or the disposal of Cash Equivalent Investments or
Marketable Securities, on arms’ length commercial terms where the same is not
otherwise restricted by the terms of the Finance Documents;


 


(d)                                  by an Obligor to another
Obligor, provided that
if such
assets are subject to existing Security they remain so or will be made subject
to Security (in form and substance substantially similar to the existing
Security or otherwise in such form and substance as may reasonably be
required by the Facility Agent) within 10 Business Days of such disposal;


 


(e)                                  disposals by a member of the
Bank Group which is not an Obligor to another member of the Group;  


 


(f)                                    disposals of assets on arms’
length commercial terms where the cash proceeds of such disposal are reinvested
within 12 months of the date of the relevant disposal in the purchase of
replacement assets by a member of the Bank Group, provided that where the
relevant member of the Bank Group that has made the disposal is an Obligor,
such replacement assets are either subject to existing Security Documents
granted by the relevant member of the Bank Group that has acquired the
replacement assets, or will be made subject to Security by such member of the
Bank Group (in form and substance substantially similar to the existing
Security or otherwise in such form and substance as may reasonably be
required by the Facility Agent) within 10 Business Days of the acquisition of
such replacement assets;


 


(g)                                 disposals of any interest in
real or heritable property by way of a lease or licence granted by a member of
the Bank Group to another member of the Bank Group;


 


(h)                                 disposals of any assets
pursuant to the implementation of an Asset Passthrough or of any funds received
pursuant to the implementation of a Funding Passthrough;


 


(i)                                    disposals of any accounts
receivable on arms’ length commercial terms pursuant to an asset securitisation
programme or one or more receivables factoring transactions provided that:


 


(i)                                    such disposal is conducted on
a non-recourse basis;


 


(ii)                                the aggregate principal amount
of all such securitisations or factoring transactions conducted in reliance on
this paragraph (i) does not exceed £300 million (or its equivalent in
other currencies) at any time; and


 


(iii)                            in the case of disposals
arising pursuant to an asset securitisation programme only, the proceeds of any
such disposal are applied in accordance with Clause 12.7 (Repayment from Securitisations);


 


(j)                                    disposals of any shares or
other interests in any Project Company, Bank Group Excluded Subsidiary or Joint
Venture or the assignment of any Financial Indebtedness owed to a member of the
Bank Group by a Project Company, Bank Group Excluded Subsidiary or Joint
Venture;


 


(k)                                disposals of assets, revenues
or rights of any member of the Bank Group arising from an amalgamation,
consolidation or merger of a member of the Bank Group with any other person
which is permitted by Clause 25.8 (Mergers);


 


(l)                                    disposals of accounts
receivable which have remained due and owing from a third party for a period of
more than 90 days and in respect of which the relevant member of the Bank Group


 


137

















 


has diligently pursued payment in the normal course of
its business and where such disposal is on non-recourse terms to such member of
the Bank Group;


 


(m)                              disposals of assets subject to
finance or capital leases pursuant to the exercise of an option by the lessee
under such finance or capital leases;


 


(n)                                 disposals of assets in
exchange for the receipt of assets of a similar or comparable value where the
assets received by any member of the Bank Group following such exchange are
located in the United Kingdom, Isle of Man, the Republic of Ireland or the
Channel Islands, provided that:


 


(i)                                    to
the extent that the assets being disposed of are subject to existing Security, the
assets received following such exchange will be subject to the existing
Security Documents, or will be made subject to Security (in form and
substance substantially similar to the existing Security or otherwise in such form and
substance as may reasonably be required by the Facility Agent) within 10
Business Days of such disposal; and


 


(ii)                                where the aggregate net book
value of all assets being exchanged in reliance on this paragraph (n) exceeds
£10 million (or its equivalent in other currencies) in any Financial Quarter,
there is delivered to the Facility Agent, within 30 days from the end of such
Financial Quarter of the Bank Group, a certificate signed by two authorised
officers of the Company (given without personal liability) certifying that the
assets received by such member of the Bank Group in reliance on this paragraph
(n) during such Financial Quarter (i) are of a similar or comparable value
to the assets disposed of by such member of the Bank Group, and (ii) that
such assets are located in United Kingdom, Isle of Man, the Republic of Ireland
or the Channel Islands;


 


(o)                                  disposals constituting the
surrender of tax losses by any member of the Bank Group:


 


(i)                                    to any Non-Bank Group UK
Taxpayer to the extent that the total amount of such Tax Losses aggregated with
all other Tax Losses surrendered in the same financial year in reliance on this
paragraph (o) does not exceed the Deductions Limit; and


 


(ii)                                to any other member of the
Group other than a member of the Bank Group, where the surrendering company
receives fair market value for such tax losses from the relevant recipient,


 


provided that no Tax Losses may be surrendered under
sub-paragraph (ii) above unless no later than 30 days after the proposed
surrender, there is delivered to the Facility Agent, a certificate signed by
two authorised signatories of the Company (given without personal liability),
giving brief details of the relevant transaction and certifying:


 


(A)                               where
the fair market value to the recipient of any surrender of Tax Losses exceeds
£15 million (or its equivalent in other currencies), the fair market value
received by the surrendering company in respect of such Tax Losses, as
determined by the Company in its reasonable opinion, after taking account of
advice from its external tax advisers; and 


 


(B)                               that,
taking into account the aggregate amount of Tax Losses surrendered by members
of the Bank Group (whether in reliance on this paragraph (o) or otherwise) and
assuming that the financial performance of the Bank Group is in accordance with
the projections set out in the Agreed Business Plan), there is no reasonable
expectation that any member of the Bank Group will become a tax payer prior to
the Final Maturity Date in respect of the B1 Facility as a


 


138

















 


result of such surrender of Tax Losses;


 


(p)                                  disposals of assets to and
sharing assets with any person who is providing services the provision of which
have been or are to be outsourced to that person by any member of the Bank
Group provided that:


 


(i)                                    the assets being disposed of
in reliance on this paragraph (p) shall be assets which relate to the services
which are the subject of such outsourcing;


 


(ii)                                the projected cash cost to the
Bank Group of such outsourcing shall be less than the projected cash cost to
the Bank Group of carrying out such outsourced activities at the levels of
service to be provided by the service provider within the Bank Group;


 


(iii)                            the economic benefits derived
from any such outsourcing contract shall be received by the Bank Group during
the term of such contract;


 


(iv)                               the aggregate fair market
value of the assets disposed of shall not exceed 3.75% of Bank Group
Consolidated Revenues in any financial year; and 


 


(v)                                   no later than 30 days after
the date of such outsourcing where the consideration payable in respect of the
assets subject to such disposal exceeds £10 million (or its equivalent in other
currencies), a duly authorised officer of the Company shall have provided to
the Facility Agent, a certificate (without personal liability) verifying each
of the matters set out in sub-paragraphs (i) to (iii) above and
certifying that as at the date of such certificate, the aggregate fair market
value of all assets disposed in reliance on this paragraph (p) during such
financial year, does not exceed the threshold specified in sub-paragraph (iv) above;


 


(q)                                  disposals of assets pursuant
to sale and leaseback transactions not constituting Financial Indebtedness
where the aggregate fair market value of any assets disposed of in reliance on
this paragraph (q) does not, together with the aggregate principal amount of
all outstanding Financial Indebtedness incurred under paragraph (k) of Clause
25.4 (Financial Indebtedness) exceed £150
million (or its equivalent in other currencies) in any financial year of the
Company and any disposals of assets pursuant to sale and leaseback transactions
constituting Financial Indebtedness to the extent such Financial Indebtedness
is permitted under this Agreement; 


 


(r)                                  disposals of any Hedging Agreements
no longer required for the purpose for which it was originally entered into;


 


(s)                                  disposals of non-core assets
acquired in connection with a transaction permitted under Clause 25.13 (Acquisitions and Investments);


 


(t)                                    any disposal of all or part of
“NTL – Business Segment” pursuant to a Business Division Transaction;


 


(u)                                 any disposals constituted by
licences of intellectual property rights permitted by Clause 24.6 (Intellectual Property);


 


(v)                                   any disposal of assets made
pursuant to the establishment of a Permitted Joint Venture or any disposal of
assets to a Permitted Joint Venture which is permitted within the scope of the
provisions contained in Clause 25.9 (Joint Ventures);
and


 


(w)                                disposals of assets not
otherwise permitted under this Clause 25.6 provided that the aggregate fair
market value of the assets disposed of during any given financial year in
reliance on


 


139

















 


paragraphs (p) and (q) above and on this paragraph (w)
does not exceed in respect of any financial year of the Bank Group, 12.5% of Bank Group Consolidated Revenues for
the preceding financial year of the Bank Group, calculated by reference to the
annual financial information for the Bank Group delivered in respect of the
preceding financial year of the Bank Group pursuant to paragraph (b)(ii) of
Clause 22.1 (Financial Statements);


 


provided that in
respect of any Disposal permitted under paragraphs (i), (m), (o)(ii), (q) and (w)
above:


 


(A)                               such
disposal shall be on arm’s length commercial terms (or in the case of paragraph
(o)(ii) such disposals are for fair market value from the perspective of
the surrendering company);


 


(B)                               at
least 75% of the consideration for such disposal shall be comprised of cash,
Cash Equivalent Investments, Marketable Securities or Additional Assets,
provided that the aggregate amount of consideration received by way of
Marketable Securities shall not (valued as at the relevant time of receipt of
any Marketable Securities) at any time exceed £50 million (or its equivalent in
other currencies) and provided further that any Cash Equivalent Investments,
Marketable Securities and/or Additional Assets acquired pursuant to any such
disposal are monetized within 3 months of the expiry of any lock-up arrangement
entered into by the relevant member of the Bank Group making such disposal with
any third party (where such lock-up arrangement has a term not exceeding 12
months); and 


 


(C)                               in
respect of any disposal the fair market value of which exceeds £35 million (or
its equivalent in other currencies) no later than 30 days after the date of
such disposal, there shall have been delivered to the Facility Agent, a
certificate signed by two authorised officers of the Borrower providing brief
details of the transaction and certifying (in each case, to the extent
applicable) (1) (other than in respect of disposals under paragraph (o)(ii) above)
such disposal shall be on arm’s length commercial terms or (in the case of
paragraph (o)(ii) such disposals are for fair market value from the
perspective of the surrendering company), (2) that not less than 75% of
the consideration for such disposal shall be in cash, Cash Equivalent
Investments, Marketable Securities or Additional Assets, and (3) to the
extent any of the consideration will include Marketable Securities, the name,
amount and other brief details of such Marketable Securities.


 


25.7                        Change of Business


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall), without
the prior written consent of an Instructing Group or save as otherwise
permitted by the terms of this Agreement make any change in the nature of its
business as carried on immediately prior to the date of this Agreement, which
would give rise to a substantial change in the business of the Bank Group taken
as a whole, provided that this Clause 25.7 shall not be breached by an Obligor
or any member of the Bank Group making a disposal permitted by Clause 25.6 (Disposals), an acquisition or investment permitted by Clause
25.13 (Acquisitions and Investments) or
entering into any joint venture permitted by Clause 25.9 (Joint
Ventures). 


 


25.8                        Mergers


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall), without
the prior written consent of an Instructing Group, amalgamate, consolidate or
merge with any other person unless:


 


(a)                                  such amalgamation,
consolidation or merger is between two Obligors or an Obligor and another
member of the Group where the Obligor will be the surviving entity;


 


140

















 


(b)                                  such amalgamation,
consolidation or merger is between two members of the Bank Group which are not
Obligors;


 


(c)                                  such amalgamation,
consolidation, or merger constitutes an acquisition permitted under
Clause 25.13 (Acquisitions and
Investments);


 


(d)                                  any member of the Bank Group
liquidates or dissolves in either case on a solvent basis and, with respect to
the Obligors on a basis that is in accordance with the provisions of Clause
25.20 (Solvent Liquidation),


 


(e)                                  such amalgamation,
consolidation or merger is by an Obligor (the “Original
Entity”)
into one or more entities (each a “Merged Entity”), provided that:


 


(i)                                    such Merged Entity is a
Obligor and is liable for the obligations of the relevant Original Entity under
this Agreement and the Security which remain unaffected thereby and entitled to
the benefit of all the rights of such Original Entity;


 


(ii)                                if required by the Facility
Agent, such Merged Entity has entered into one or more Security Documents which
provide security over the same assets of at least an equivalent nature and
ranking to the security provided by the relevant Original Entity pursuant to
any Security entered into by them and any possibility of the Security referred
to in this paragraph or paragraph (iii) below being challenged or set
aside is not greater than any such possibility in relation to the Security
entered into by or in respect of the share capital of any relevant Original
Entity; 


 


(iii)                            (if all or any part of
the share capital of the relevant Original Entity was charged pursuant to one
or more Security Documents) the equivalent part of the issued share
capital of such Merged Entity is charged pursuant to Security on terms of at
least an equivalent nature and ranking as the Security relating to the shares
in the relevant Original Entity; and


 


(iv)                               the Facility Agent is
satisfied (acting reasonably) that all the property and other assets of the
relevant Original Entity are vested in the Merged Entity and that the Merged
Entity has assumed all the rights and obligations of the relevant Original
Entity under all material Necessary Authorisations; and


 


(f)                                    transactions that are
expressly contemplated by the Steps Paper,


 


provided that in
the case of paragraphs (a), (b), (c) and (e) only, no later than 10
Business Days prior to the proposed amalgamation, consolidation or merger a
duly authorised officer of the Company shall have delivered to the Facility
Agent (in form and substance satisfactory to the Facility Agent, acting
reasonably) a certificate verifying compliance with the relevant matters set
out in such paragraph and to the extent deemed necessary, the Facility Agent
shall have received appropriate advice from counsel in any relevant
jurisdiction that such amalgamation, consolidation or merger (1) will not
result in the breach of any applicable law or regulation in any material
respect and (2) in the case of an amalgamation, consolidation or merger
involving an Obligor, will not have a materially adverse impact upon any of the
obligations owed by such Obligor to the Finance Parties or upon the Security
granted by such Obligor under any Security Document.


 


25.9                        Joint Ventures


 


No Obligor shall,
(and the Company shall procure that no member of the Bank Group shall) enter
into, make any loans, distributions or other payments to, give any guarantees
for the Financial Indebtedness of, or acquire any interest or otherwise invest
in, any Joint Venture, other than:


 


141

















 


(a)                                  an acquisition of any interest
in or any investment in any member of the UKTV Group;


 


(b)                                  pursuant to any loan or other
funding arrangement in accordance with any Existing UKTV Group Loan Stock
(including the funding of any undrawn amount thereunder as at the date hereof);
or


 


(c)                                  the acquisition of any
interest in or any investment in, any Joint Venture constituting a Business
Division Transaction, provided that:


 


(i)                                    the Net Proceeds of any such
transaction shall be distributed in accordance with the provisions of
sub-paragraph (iv) of Clause 25.5 (Dividends, Distributions
and Share Capital); and


 


(ii)                                any Net Proceeds which are not
distributed in accordance with (i) above shall be retained within the Bank
Group; or


 


(d)                                  any other Joint Venture not
contemplated by paragraphs (a) to (c) above, which is engaged in a
business substantially the same as or reasonably related or complimentary to,
that carried on by the Bank Group and in any financial year, the aggregate of:


 


(i)                                    all amounts invested or any
interests acquired in any Joint Venture by members of the Group; and


 


(ii)                                any loans made or any
guarantees given for Financial Indebtedness of any Joint Venture,


 


does not exceed 3.25% of Bank Group Consolidated
Revenues for the preceding financial year, calculated by reference to the
annual financial information for the Bank Group delivered in respect of that
preceding financial year of the Bank Group pursuant to Clause 22.1 (Financial Statements), provided that any loans or investments made by way of Asset
Passthrough and any payments made in respect of transactions conducted on an
arm’s length basis or in the ordinary course of trading with any Joint Venture,
shall not be included in the
calculation of such amount.


 


25.10                 Transactions with Affiliates


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall) without
the prior written consent of an Instructing Group, enter into any arrangement,
contract or transaction with any other member of the Group which is not an
Obligor, other than:


 


(a)                                  transactions expressly
permitted by the Finance Documents;


 


(b)                                  transactions between a member
of the Bank Group that is not an Obligor with any other member of the Bank
Group which is not an Obligor;


 


(c)                                  transactions in the ordinary
course of business and either on no worse than arm’s length terms or, where
there is no available market by which to assess whether such a transaction is
on no worse than arm’s length terms, on terms such that the transaction is
financially fair to the relevant Obligor or, as the case may be, other
member of the Bank Group;


 


(d)                                  transactions with any member
of the Group in relation to management services conducted at not less than Cost
on behalf of such member of the Group;


 


(e)                                  tax sharing agreements or
arrangements to surrender tax losses and payments made pursuant thereto, to the
extent such transactions are not prohibited by this Agreement;


 


142

















 


(f)                                    transactions relating to the
provision of Intra-Group Services;


 


(g)                                 transactions to effect either
an Asset Passthrough or a Funding Passthrough;


 


(h)                                 transactions either on terms
and conditions (including, without limitation, as to any reasonable fees
payable in connection with such transactions) not substantially less favourable
to the relevant Obligor or, as the case may be, other member of the Bank
Group than would be obtainable at such time in comparable arm’s length
transactions with an entity which is not an Affiliate or, where there is no
comparable arm’s length transaction by which to assess whether such a
transaction is on terms and conditions not substantially less favourable to the
relevant Obligor or, as the case may be, other member of the Bank Group,
on such terms and conditions (including, without limitation, as to any fees
payable in connection with such transaction) that the transaction is
financially fair to the relevant Obligor or, as the case may be, other
member of the Bank Group;


 


(i)                                    any transaction to which one
or more Obligors and one or more members of the Group who are not Obligors are
party where the sole purpose of such transaction is for such Obligors and
members of the Group to effect a transaction with a person who is not a member
of the Group;


 


(j)                                    insurance arrangements entered
into in the ordinary course of business with a Captive Insurance Company;


 


(k)                                transactions relating to
capital contributions between members of the Group or the amendment of the
terms of any loans made by or any convertible unsecured loan stock or other
securities issued by any member of the Group to any other member of the Group
(whether by way of conversion of loans to convertible unsecured loan stock or
vice versa or otherwise) or the capitalisation of, or the waiver of or the
repayment of, loans made by or any convertible unsecured loan stock issued by
any member of the Group to any other member of the Group;


 


(l)                                    transactions relating to
Excess Capacity Network Services provided that the price payable by any member
of the Group in relation to such Excess Capacity Network Services is no less
than the Cost incurred by the relevant member of the Bank Group in providing
such Excess Capacity Network Services; 


 


(m)                              transactions constituting
Subordinated Funding; 


 


(n)                                 transactions constituting
Permitted Payments;


 


(o)                                  any other transaction or
arrangement permitted under Clause 25.3 (Loans
and Guarantees), Clause 25.4 (Financial
Indebtedness), Clause 25.5 (Dividends,
Distributions and Share Capital), Clause 25.6 (Disposals), Clause 25.8 (Mergers), Clause 25.9 (Joint Ventures), or Clause 25.13 (Acquisitions and Investments).


 


25.11                 Change in Financial Year


 


Neither the Parent
nor any Obligor shall, without the prior consent of the Facility Agent, change
the end of its financial year from 31 December.


 


143

















 


25.12                 Limitations on Hedging


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall) enter
into any Hedging Agreement other than:


 


(a)                                  the Hedging Agreements listed
in Part 6 of Schedule 10 (Existing
Hedging Agreements);


 


(b)                                  Hedging Agreements
specifically required under Clause 24.9 (Hedging); or


 


(c)                                  any Hedging Agreement in
respect of spot or forward foreign exchange transactions or currency swaps
entered into in connection with such member of the Bank Group’s business, which
is not entered into for investment or speculative purposes and, for the
avoidance of doubt (subject to the provisions of Clause 25.10 (Transactions with Affiliates), any such
Hedging Agreement may be entered into with another member of the Group.


 


25.13                 Acquisitions and Investments


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall)
purchase, subscribe for or otherwise acquire or invest in any shares (or other
securities or any interest in it) in, or incorporate, any company or acquire
(by subscription or otherwise) or invest in any business or (save in the
ordinary course of business) purchase or otherwise acquire any other assets
other than:


 


(a)                                  the purchase of or investment
in Cash Equivalent Investments or Marketable Securities (including without
limitation by way of consideration in respect of any disposal as contemplated
in the proviso to Clause 25.6 (Disposals)
and subject to the conditions set out therein);


 


(b)                                  the incorporation of a company
or the acquisition of an “off-the-shelf” company which is or becomes a member
of the Bank Group;


 


(c)                                  any acquisition by any member
of the Bank Group in connection with a disposal permitted by the provisions of
Clause 25.6 (Disposals) and any acquisition or
subscription by a member of the Bank Group of shares issued by a Subsidiary of
the Borrower or a Subsidiary of NTL Communications Limited which in any such
case, is a member of the Bank Group which will, after the acquisition of such
shares become a wholly owned direct or indirect Subsidiary of the Company or
NTL Communications Limited as the case may be, provided that if the other shares of such Subsidiary are
subject to existing Security, either (i) such newly issued shares shall
also be subject to Security (in form and substance substantially similar
to any existing Security or otherwise in such form and substance as may be
reasonably required by the Facility Agent) upon their issue or (ii) such
shares shall be made subject to Security (in form and substance
substantially similar to any existing Security or otherwise in such form and
substance as may be reasonably required by the Facility Agent) within 10
Business Days of their issue;


 


(d)                                  the acquisition of any shares
in NTL South Herts or the acquisition of any interests in the limited partners
of South Hertfordshire United Kingdom Fund, Ltd.;


 


(e)                                  any acquisition made by a
member of the Bank Group pursuant to the implementation of an Asset Passthrough
or a Funding Passthrough;


 


(f)                                    any acquisition expressly
contemplated by the Steps Paper;


 


(g)                                 any acquisition by any member
of the Bank Group of any loan receivable, security or other asset by way of
capital contribution or in consideration of the issue of any securities or of
Subordinated Funding;


 


144

















 


(h)                                 any acquisition of shares,
assets, revenues or rights arising from an amalgamation, consolidation or
merger of a member of the Bank Group with any other person which is permitted
by Clause 25.8 (Mergers);


 


(i)                                    the acquisition of any
leasehold interest in any assets which are the subject of a sale and leaseback
permitted by the provisions of paragraph (q) of Clause 25.6 (Disposals); 


 


(j)                                    any acquisition of or
investment in any Joint Venture permitted by Clause 25.9 (Joint Ventures);


 


(k)                                any purchase or acquisition of
assets or revenues by a member of the Bank Group from a member of the Bank
Group, provided that the disposal of such assets or revenues by the relevant
member of the Bank Group is permitted under Clause 25.6 (Disposals);


 


(l)                                    arising from the conversion of
any company (the “Original Company”)
from one form of organisation into another form of organisation
provided that (i) if, prior to the time of such conversion, the Security
Trustee has the benefit of Security over the shares of such Original Company or
such Original Company is an Obligor, then the Company shall ensure that the
Security Trustee is provided with Security over the equivalent ownership
interests in, and substantially all of the assets of, the converted
organisation, of at least an equivalent nature and ranking to the Security
previously provided by the Original Company and (ii) the Security Trustee
is satisfied that any possibility of the additional Security referred to in
this paragraph being challenged or set aside is not greater than any such
possibility in relation to the Security entered into by or in respect of the
share capital of the Original Company;


 


(m)                              the Baseball Acquisition; 


 


(n)                                 the Alternative Baseball
Acquisition, provided that:


 


(i)                                    the total cash payment for
such acquisition (including the assumption of debt) does not exceed £500
million; 


 


(ii)                                at the time of completion of
such Alternative Baseball Acquisition, no Event of Default has occurred or in
continuing or would occur as a result of such acquisition; and 


 


(iii)                            after giving pro forma effect
for such Alternative Baseball Transaction, the Bank Group continue to be in
compliance with Clause 23.2 (Ratios);


 


(o)                                  any acquisition (a “Permitted Acquisition”) of a person
carrying on any business similar and/or complementary to the Group (the “Acquiree”) in each case:


 


(i)                                    no Default is continuing on
the closing date for the Permitted Acquisition or would occur as a result of
the Permitted Acquisition;


 


(ii)                                the aggregate consideration
for the Permitted Acquisition (including any assumed indebtedness, or other
assumed actual or contingent liability and any associated fees and expenses)
(the “Total
Purchase Price”) is funded entirely from (A) the proceeds of New Equity and (B) up
to £200 million in aggregate of available cash within the Group or Financial Indebtedness permitted by this
Agreement;


 


(iii)                            the Acquiree has positive
earnings before tax, depreciation and amortisation calculated on the same basis
as Consolidated Operating Cashflow for the previous one financial year ending
on the last day of the last financial quarter of the then current financial
year of such company or business for which financial statements are


 


145

















 


available;


 


(iv)                               in the case of the acquisition
of all of the issued share capital of the Acquiree, as soon as reasonably
practicable, but in any case within 90 days from the completion of the
Permitted Acquisition, the Acquiree (and the acquirer, as applicable) must to
the extent required by Clause 24.12 (Further
Assurance) accede as a Guarantor in accordance with the provisions
of Clause 26.2 (Acceding Guarantors);


 


(v)                                   in the case of the acquisition
of a business or undertaking carried on as a going concern of the Acquiree, as
soon as reasonably practicable, but in any case within 90 days from the
completion of the Permitted Acquisition, the acquirer, to the extent that it is
an Obligor, must give Security over the assets acquired by executing Security
Documents, in form and substance satisfactory to the Facility Agent and to
the extent it becomes a Material Subsidiary, it shall accede as a Guarantor in
accordance with the provision of Clause 26.2 (Acceding
Guarantors);


 


(vi)                               for any Permitted Acquisition
the Total Purchase Price of which is in excess of £100 million, the Company
must provide to the Facility Agent (to the extent practicable not later than 5
Business Days prior to the proposed acquisition):


 


(A)                               copies
of all due diligence reports (if any) commissioned by the Company or any
relevant member of the Bank Group in respect of the proposed Permitted
Acquisition;


 


(B)                               copies
of all sale and purchase documents relating to the proposed Permitted
Acquisition, in each case duly executed and delivered by all parties thereto,
together with confirmation that all material Authorisations for such
acquisition have been made, obtained and are in full force and effect;


 


(C)                               an
updated Budget amended to reflect the proposed Permitted Acquisition; and


 


(vii)                           the Company will provide to
the Facility Agent, a certificate signed by the chief financial officer of the
Company showing in reasonable detail that:


 


(A)                               it
would have remained in compliance with its obligations under Clause 23 (Financial Condition) if the covenants tested
therein were recalculated for the most recent Quarter Date for which quarterly
financial information is available, such recalculation to be made by reference
to the financial statements of the Acquiree consolidated with the financial
statements of the Bank Group for such period on a pro forma basis and as if the
consideration for the proposed acquisition had been paid at the start of that
relevant testing period ending on that Quarter Date and any borrowings incurred
in connection with the acquisition or since the last day of the relevant
testing period had been incurred on the first day of the relevant testing
period and (to the extent agreed by the Facility Agent, acting reasonably) to
any reasonably identifiable cost savings and other synergies which are
reasonably expected to result from the Permitted Acquisition; and


 


(B)                               it
will be in compliance with its obligations under Clause 23 (Financial Condition) as at the end of the
next Financial Quarter, such compliance to be demonstrated on a pro forma basis
by reference to the financial statements of the Acquiree, consolidated with the
financial statements of the Bank Group for such period and (to the extent
agreed by the Facility Agent, acting reasonably) to any reasonably identifiable
cost savings and other synergies


 


146

















 


which are reasonably expected to result from the
Permitted Acquisition; and


 


(p)                                  acquisitions not falling
within paragraphs (a) to (o) above provided
that the aggregate consideration for the acquisitions permitted by
this paragraph (p) shall not exceed £300 million.


 


25.14                 High Yield Notes


 


Save to the extent
expressly permitted under the terms of the HYD Intercreditor Agreement, without
the consent of an Instructing Group:


 


(a)                                  with respect to NTL Cable
only:


 


(i)                                    it will not transfer any of
its rights or obligations under the Existing High Yield Notes or agree any
amendment to the Existing High Yield Notes (i) relating to the increase in
the amount of or the bringing forward of the date of any payment of principal,
interest, fees or other amounts payable thereunder or (ii) changing the
currencies in which the Existing High Yield Notes are denominated as at the
Merger Closing Date (other than in the case where the United Kingdom becomes a
Participating Member State); or


 


(ii)                                in relation to any High Yield
Refinancing permitted under the terms of this Agreement, it will not change any
of the original terms under which such High Yield Refinancing was issued, where
such terms relate to the conditions of such High Yield Refinancing set out in
the definition thereof; or


 


(b)                                  with respect to the Company,
it will not agree any amendment to the guarantee granted by it in respect of
obligations of NTL Cable under the Existing High Yield Notes or any guarantee
granted in respect of the High Yield Refinancing and which is granted in
accordance with the terms of paragraph (c) of Clause 25.4 (Financial Indebtedness),


 


in each case, other
than amendments of an administrative or technical nature.


 


25.15                 No Restrictions on Payments


 


No Obligor shall
(and the Company shall procure that no member of the Bank Group shall) enter
into any agreement, transaction or other arrangement which restricts or
attempts to restrict such Obligor or other member of the Bank Group from making
any payments or other distributions in cash to any other member of the Bank
Group, if any such restriction affects the ability of the Obligors as a whole
to comply with the payment obligations under the Finance Documents or is
reasonably likely to result in the incurrence of significant costs, or any
significant increase in, any costs and expenses payable by or any taxes owing
by the Bank Group as a whole or is reasonably likely to result in a significant
increase in any taxes in any material amount owing by the Bank Group as a
whole, other than pursuant to or as contemplated by the Finance Documents or
the Bridge Finance Documents.


 


25.16                 UK Holdco Covenants


 


None of the UK
Holdcos shall trade, carry on any business, own any material assets or incur
any material liabilities except for:


 


(a)                                  the carrying on business of
and the provision of administrative services to members of the Bank Group of a
type customarily provided by, a holding company to its Subsidiaries;


 


(b)                                  the ownership of shares in its
Subsidiaries, intergroup debit balances, intergroup credit balances and other
credit balances in bank accounts and cash, provided that any shares held


 


147

















 


by a UK Holdco in, or any intergroup credit balances
owed to a UK Holdco by, an Obligor shall be:


 


(i)                                    subject to Security;


 


(ii)                                to the extent applicable,
subject to the provisions of the HYD Intercreditor Agreement or the Group
Intercreditor Agreement;


 


(c)                                  any rights and liabilities
arising under the Finance Documents, the Existing High Yield Notes, the Bridge
Finance Documents, the NTL High Yield Notes or any High Yield Refinancing.


 


(d)                                  having rights and liabilities
under any hedging arrangements which are entered into by it  pursuant to Clause 24.9 (Hedging)
of this Agreement;


 


(e)                                  incurring liabilities for or
in connection with Taxes or arising by operation of law; and


 


(f)                                    in respect of any service
contracts for any directors or employees of that UK Holdco.


 


25.17                 No Amendments


 


(a)                                  No Obligor shall (and the
Company shall procure that no member of the Bank Group shall) amend the Tax
Co-operation Agreement (to the extent it is a party thereto) or its
constitutional documents, in each case, in a manner which could reasonably be
expected to have a Material Adverse Effect other than with the prior written
consent of an Instructing Group or where required by law (provided that, in the
case of the latter, such amendment could not reasonably be expected to have a
Material Adverse Effect);


 


(b)                                  The Ultimate Parent shall
procure that except as permitted by the HYD Intercreditor Agreement and the
Group Intercreditor Agreement, no amendment is made to:


 


(i)                                    the Bridge Facility Agreement
or the Alternative Bridge Facility Agreement (or any Exchange Notes or NTL High
Yield Notes as applicable); or


 


(ii)                                the Existing High Yield Notes,


 


in each case, in a manner which could reasonably be
expected to have a Material Adverse Effect other than with the prior written
consent of the Instructing Group or where required by law.


 


25.18                 Parent Debt


 


The Ultimate Parent shall not (and shall procure that
none of its Subsidiaries (other than a member of the Bank Group) shall) incur,
create or permit to subsist or have outstanding any Financial Indebtedness or
enter into any agreement or arrangement whereby it is entitled to incur, create
or permit to subsist any Financial Indebtedness unless the Ultimate Parent can
demonstrate by reference to the quarterly financial information for the Group
most recently delivered pursuant to Clause 22.1 (Financial Statements) that the Leverage Ratio (adjusted in
the case of the Consolidated Net Debt element, to take account of the Financial
Indebtedness in question and any other Financial Indebtedness raised by the
Ultimate Parent or such Subsidiary since the date of such quarterly financial
information) is not more than 4.25:1 for the period of four consecutive
financial quarters ended on the last day of the financial quarter in respect of
which such quarterly financial information was delivered provided that the
foregoing limitations shall not apply to:


 


(a)                                  any Financial Indebtedness
arising under or pursuant to the Finance Documents;


 


148

















 


(b)                                  any Financial Indebtedness
incurred (including any such Financial Indebtedness existing as at the date of
this Agreement) by any member of the Group (other than a member of the Bank
Group) and owed to any other member of the Group;


 


(c)                                  any Financial Indebtedness
incurred by any member of the Group (other than a member of the Bank Group)
which, if it had been incurred by a Borrower at such time, would be permitted
to be incurred pursuant to Clause 25.4 (Financial
Indebtedness) provided that if any basket or threshold contained in
Clause 25.4 (Financial Indebtedness) is
utilized by any member of the Group (other than a member of the Bank Group)
pursuant to this paragraph (c), such basket or threshold shall be reduced by a
corresponding amount and shall thereafter be unavailable for use by any member
of the Bank Group;


 


(d)                                  any Financial Indebtedness
incurred by any member of the Group (other than a member of the Bank Group) to
refinance all or any part of the Outstandings, including the payment of
all principal, interest, fees, expenses, commissions, make-whole and any other
contractual premium payable, in respect of such Outstandings and any fees,
costs and expenses incurred in connection with such refinancing;


 


(e)                                  the Bridge Facility, the
Alternative Bridge Facility, the Exchange Notes, the Existing High Yield Notes,
any NTL High Yield Notes or any High Yield Refinancings; and


 


(f)                                    any Financial Indebtedness
incurred by any Permitted Joint Venture.


 


25.19                 US Borrower


 


The US Borrower shall not:


 


(a)                                  carry on any trade or business
other than as may be necessary in connection with the Finance Documents
and the acquisition and ownership of the Notes;


 


(b)                                  own any Subsidiary or other
entity;


 


(c)                                  create or permit to subsist
any Encumbrance over its rights under or title and interest in the Notes, other
than:


 


(i)                                    pursuant to the Security; or


 


(ii)                                as contemplated by any
applicable Group Intercreditor Agreement or the HYD Intercreditor Deed; or


 


(d)                                  dispose of any or all of its
rights, title and interest in the Notes other than pursuant to or as
contemplated by the Security Documents or as contemplated by any applicable
Group Intercreditor Agreement or the HYD Intercreditor Deed.


 


25.20                 Solvent Liquidation


 


No Obligor (for these purposes, a “Predecessor Obligor”) shall, without the prior written
consent of an Instructing Group, liquidate on a solvent basis (a “Solvent Liquidation”) unless:


 


(a)                                  on or prior to the Solvent
Liquidation, an entity (the “Successor Entity”)
acquires substantially all of the assets and assumes substantially all of the
liabilities of the Predecessor Obligor (a “Liquidation
Transfer”), excluding any rights under contracts that cannot be
assigned or liabilities that will be satisfied or released upon the Solvent
Liquidation, on an arms’ length basis and for full consideration;


 


149

















 


(b)                                  the Successor Entity is
organised in the same jurisdiction as that in which the Predecessor Obligor is
organised and is either:


 


(i)                                    an existing Obligor; or 


 


(ii)                                a Subsidiary of the Company
that is entitled to become (and subsequently does become) an Obligor in
accordance with the provisions of Clause 26.1 (Acceding
Borrowers) or Clause 26.2 (Acceding Guarantors);
and


 


(c)                                  the Successor Entity does not
incur any additional material liabilities in connection with the Solvent
Liquidation other than those which are to be transferred to it by the
Predecessor Obligor but which did not arise directly as a result of the Solvent
Liquidation;


 


(d)                                  to the extent previously
provided in respect of the shares of the Predecessor Obligor, the Finance
Parties are granted a first ranking security interest over the shares of the
Successor Entity;


 


(e)                                  no Event of Default has
occurred and is continuing or would arise from the Liquidation Transfer or the
Solvent Liquidation;


 


(f)                                    immediately after the Solvent
Liquidation, the following documents are delivered to the Facility Agent each
in a form previously approved by the Facility Agent (acting on the
instructions of an Instructing Group):


 


(i)                                    copies of solvency
declarations of the directors of the Successor Entity confirming to the best of
their knowledge and belief, that the Successor Entity was balance sheet solvent
immediately prior to and after the Solvent Liquidation, accompanied by any
report by the auditors or other advisers of the relevant Successor Entity on
which such directors have relied for the purposes of giving such declaration;


 


(ii)                                copies of the resolutions of
the Predecessor Obligor and the Successor Entity (to the extent required by
law) approving the Liquidation Transfer and/or the Solvent Liquidation (as
applicable);


 


(iii)                            copies of the statutory
declarations of the directors of the Predecessor Obligor (to the extent
required by law) given in connection with Solvent Liquidation;


 


(iv)                               a copy of the executed transfer
agreement relating to the Liquidation Transfer; and


 


(v)                                   the legal opinion from the
Successor Entity’s counsel confirming (i) the due capacity and
incorporation of each of the Successor Entity and the Predecessor Obligor, (ii) the
power and authority of the Successor Entity to enter into and perform its
obligations under this Agreement and any other Finance Document to which it is
a party and (iii) that the transfer agreement giving effect to the
Liquidation Transfer is legally binding and enforceable in accordance with its
terms.


 


25.21                 ERISA


 


Neither any Obligor
nor any ERISA Affiliate shall maintain or contribute to (or have an obligation
to contribute to) a Plan subject to Title IV or Section 302 of ERISA
and/or Section 412 of the Code or to a Multiemployer Plan which could
reasonably be expected to give rise to a material liability to any Obligor or
any Finance Party.


 


150

















 


26.                               ACCEDING GROUP COMPANIES


 


26.1                        Acceding Borrowers


 


(a)                                  Subject to paragraph (b) below,
the Company may, upon not less than 3 Business Days’ prior written notice to
the Facility Agent, request that any member of the Bank Group becomes an
Acceding Borrower under this Agreement.


 


(b)                                  Such member of the Bank Group may become
an Acceding Borrower if:


 


(i)                                    it is not incorporated in the
same jurisdiction as an existing Borrower and an Instructing Group has approved
the addition of that member of the Bank Group as an Acceding Borrower or if
such member of the Bank Group is established in the United States of America,
an Instructing Group has approved the addition of that member of the Bank Group
as an Acceding Borrower;


 


(ii)                                the Company delivers to the
Facility Agent a duly completed and executed Accession Notice pursuant to which
it agrees to become a party to this Agreement as an Acceding Borrower and
(subject to any provision of law prohibiting the same) an Acceding Guarantor;


 


(iii)                            the Company confirms that no
Event of Default is continuing or would occur as a result of that member of the
Bank Group becoming an Acceding Borrower and Acceding Guarantor; and


 


(iv)                               the Facility Agent has
received all of the documents and other evidence listed in Part 2 of Schedule 7
(Accession Documents) in relation to that
member of the Bank Group, each in form and substance satisfactory to the
Agent, acting reasonably.


 


(c)                                  The Facility Agent shall
notify the Company and the Lenders promptly upon being satisfied that the
conditions specified in paragraph (b) above have been satisfied.


 


26.2                        Acceding Guarantors


 


(a)                                  Subject to paragraph (b) below,
the Company may, upon not less than 3 Business Days’ prior written notice to
the Facility Agent, request that any member of the Bank Group becomes an
Acceding Guarantor under this Agreement.


 


(b)                                  Such member of the Bank Group may become
an Acceding Guarantor if:


 


(i)                                    the Company delivers to the
Facility Agent a duly completed and executed Accession Notice;


 


(ii)                                the Company confirms that no
Event of Default is continuing or would occur as a result of that member of the
Bank Group becoming an Acceding Guarantor; and


 


(iii)                            the Facility Agent has
received all of the documents and other evidence listed in Part 2 of Schedule 7
(Accession Documents) in relation to that
member of the Bank Group, each in form and substance satisfactory to the
Agent, acting reasonably.


 


(c)                                  The Facility Agent shall
notify the Company and the Lenders promptly upon being satisfied that the
conditions specified in paragraph (b) above have been satisfied.


 


26.3                        Acceding Holding Company 


 


If at any time the
Ultimate Parent becomes a Subsidiary of a Holding Company, the Ultimate Parent


 


151

















 


shall ensure that
such Holding Company shall, upon becoming the Holding Company of the Ultimate
Parent deliver an Accession Notice duly executed by the Company and the Holding
Company together with the documents set out in Part 2 of Schedule 7 (Accession Documents).


 


26.4                        Assumption of Rights and
Obligations


 


(a)                                  Upon satisfactory delivery of
a duly executed Accession Notice to the Facility Agent, together with the other
documents required to be delivered under Clauses 26.1 (Acceding
Borrowers) and 26.2 (Acceding Guarantors),
the relevant member of the Bank Group, the Ultimate Parent, the Parent, the
Obligors and the Finance Parties, will assume such obligations towards one
another and/or acquire such rights against each other as they would each have
assumed or acquired had such member of the Bank Group been an original party to
this Agreement as a Borrower or a Guarantor as the case may be and such
member of the Bank Group shall become a party to this Agreement as an Acceding
Borrower and/or an Acceding Guarantor as the case may be.


 


(b)                                  Upon satisfactory delivery of
a duly executed Accession Notice to the Facility Agent, together with the other
documents required to be delivered under Clause 26.3 (Acceding
Holding Company), the relevant Holding Company, the Parent, the
Obligors and the Finance Parties, will assume such obligations towards one
another and/or acquire such rights against each other as they would each have
assumed or acquired had such Holding Company been an original party to this
Agreement as the Ultimate Parent, and such Holding Company shall become a party
to this Agreement in such capacity. Simultaneously with such Holding Company
becoming a party to this Agreement as aforesaid, the Facility Agent shall
release the Ultimate Parent for the time being from its obligations as an
Ultimate Parent under this Agreement and such Ultimate Parent shall cease to be
a party to this Agreement in such capacity. 


 


27.                               EVENTS OF DEFAULT


 


Each of
Clauses 27.1 (Non-Payment) to
Clause 27.16 (Change of Ownership) describes
the circumstances which constitute an Event of Default for the purposes of this
Agreement.


 


27.1                        Non-Payment


 


The Parent or any
Obligor fails to pay any sum due from it under any Finance Document at the
time, in the currency and in the manner specified in such Finance Document
within (a) 1 Business Day of the due date, in the case of payments of
principal where failure to pay was due solely to technical or administrative
error in the transmission of funds, (b) 3 Business Days of the due date,
in the case of payments of interest, or (c) 5 Business Days of the due
date, in respect of payments of any other amounts.


 


27.2                        Covenants


 


(a)                                  The Ultimate Parent, the
Parent or an Obligor fails duly to perform or comply with any obligation
expressed to be assumed by it in Clause 24.1 (Application
of Advances), Clause 25.2 (Negative Pledge),
Clause 25.3 (Loans and Guarantees), Clause
25.4 (Financial Indebtedness), Clause 25.5 (Dividends, Distributions and Share Capital), Clause 25.8 (Mergers), Clause 25.9 (Joint Ventures)
or Clause 25.13 (Acquisitions and Investments).


 


(b)                                  The Parent or any Obligor
fails duly to perform or comply with any obligation expressed to be
assumed by it in Clause 22 (Financial Information)
or sub-paragraph (b)(i) of Clause 24.12 (Further
Assurance), paragraphs (a) and (b) of Clause 24.9 (Hedging), and such failure, if capable of
remedy is not so remedied within 10 Business Days of the earlier of the Parent
or 


 


152

















 


such Obligor becoming aware of such failure to perform or
comply and the Facility Agent having given notice of such failure to the Company.


 


(c)                                  There is any breach of Clause
23.2 (Ratios).


 


(d)                                  There is any breach of Clause
25.6 (Disposals), provided that where the
failure to comply with any obligation under Clause 25.6 (Disposals)
relates to the obligation to deliver a certificate within a specified time
period, no Event of Default shall be deemed to have occurred unless the
Borrower shall have failed to deliver the required certificate within such time
period and upon request by the Facility Agent for a description of the
transactions relating to such certificate which was not delivered, the Borrower
fails to provide such details within 10 Business Days after such request.


 


27.3                        Other Obligations


 


The Ultimate
Parent, the Parent or any Obligor fails duly to perform or comply with any
of the obligations expressed to be assumed by it in any of the Finance
Documents (other than any of those referred to in Clauses 27.1 (Non-Payment) and 27.2 (Covenants)) and
such failure, if capable of remedy, is not so remedied within 30 days of the earlier of the Ultimate
Parent, the Parent or such Obligor becoming aware of such failure to perform or
comply and the Facility Agent having given notice of such failure to the
Borrower.


 


27.4                        Misrepresentation


 


Any representation
or statement made or repeated by the Ultimate Parent, the Parent or an Obligor
in any Finance Document or in any notice or other document or certificate
delivered by it pursuant to a Finance Document is or proves to have been
incorrect or misleading in any material respect when made or repeated where the
circumstances giving rise to such inaccuracy, if capable of remedy or change
are not remedied or do not change within 30 days of the earlier of the Ultimate Parent, the Parent or the
relevant Obligor becoming aware of such circumstances and the Facility Agent
having notified the Borrower of such misrepresentation having occurred.


 


27.5                        Cross Default


 


(a)                                  Any Financial Indebtedness of
any member of the Group is not paid when due and payable, after taking into
account any applicable grace period;


 


(b)                                  any Financial Indebtedness of
any member of the Group is declared (or is capable of being declared) to be or
otherwise becomes due and payable prior to its specified maturity as a result
of an event of default (however described), after taking into account any
applicable grace period; or


 


(c)                                  any commitment for any
Financial Indebtedness of any member of the Group is cancelled or suspended by
a creditor of any member of the Group as a result of an event of default
(however described),


 


provided that no
Event of Default will occur under this Clause 27.5:


 


(i)                                    if the aggregate amount of
Financial Indebtedness and/or commitment for Financial Indebtedness falling
within paragraphs (a) to (c) above is less than £35 million (or its equivalent in
other currencies);


 


(ii)                                if the circumstance which
would otherwise have caused an Event of Default under this Clause 27.5 is being
contested in good faith by appropriate action;


 


153

















 


(iii)                            if the relevant Financial
Indebtedness is cash-collateralised and such cash is available for application
in satisfaction of such Financial Indebtedness; 


 


(iv)                               if such Financial Indebtedness
is owed by one member of the Group to another member of the Group; or


 


(v)                                   if such Event of Default
arises solely by reason of the failure of any member of the Group to  obtain the consent of the lenders under the
Existing Credit Facilities to (i) the execution of the Finance Documents, (ii) the
exercise of any of its rights or the performance of any of its obligations
under the Finance Documents or (iii) any other matter contemplated by the
Finance Documents.


 


27.6                        Insolvency


 


The Ultimate Parent, the Parent, any Borrower, any
Obligor that is a Material Subsidiary or (for the purposes of Clause 3.5 (Vanilla  Certain Funds
Period) only) the Merger Sub, is unable to pay its debts as they
fall due, ceases or suspends generally the payment of its debts or announces an
intention to do so, or makes a general assignment for the benefit of or a
composition with its creditors generally or a general moratorium is declared in
respect of the Financial Indebtedness of the Ultimate Parent, the Parent, such
Borrower, such Obligor or (for the purposes of Clause 3.5 (Vanilla Certain Funds Period) only) the
Merger Sub (as applicable).


 


27.7                        Winding-up


 


After the date of
this Agreement, the Ultimate Parent, the Parent, any Borrower, any Obligor that
is a Material Subsidiary or (for the purposes of Clause 3.5 (Vanilla  Certain Funds
Period) only) the Merger Sub, takes any corporate action or formal
legal proceedings are started and served (not being actions or proceedings
which can be demonstrated to the satisfaction of the Facility Agent by
providing an opinion of a leading firm of London solicitors (within 30 days of any
such action or proceedings having commenced) to that effect, as frivolous,
vexatious or an abuse of the process of the court or related to a claim to
which such Person has a good defence and which is being vigorously contested by
such body) for its winding-up, dissolution, administration or re-organisation
or for the appointment of a liquidator, receiver, administrator, administrative
receiver, conservator, custodian, trustee or similar officer of it or of any or
all of its revenues and assets other than where any such legal proceedings in
respect of the Ultimate Parent, the Parent, such Borrower, such Material
Subsidiary or (for the purposes of Clause 3.5 (Vanilla Certain Funds Period) only) the
Merger Sub either (a)(i) do not relate to the appointment of an
administrator and (ii) are stayed or discharged within 30 days from their
commencement or (b) relate to a solvent liquidation or dissolution set
forth under paragraph (d) of Clause 25.8 (Mergers).


 


27.8                        Execution or Distress


 


Any execution,
distress or attachment is levied against, or an encumbrancer takes possession
of, the whole or any part of, the property, undertaking or assets of the
Parent, any Borrower, any Obligor which is a Material Subsidiary or (for the
purposes of Clause 3.5 (Vanilla Certain Funds Period) only) the
Merger Sub, having an aggregate value of more than £35 million (or its equivalent in other currencies) and the same is
not discharged within 30 days.


 


27.9                        Similar Events


 


Any event occurs
which, under the laws of any jurisdiction, has a similar or analogous effect to
any of those events mentioned in Clause 27.6 (Insolvency),
27.7 (Winding-up) or Clause 27.8 (Execution or Distress).


 


154

















 


27.10                 Repudiation


 


The Ultimate
Parent, the Parent or any Obligor repudiates any of the Finance Documents to
which it is party.


 


27.11                 Illegality


 


Save as provided in
the Reservations, at any time it is or becomes unlawful for the Ultimate
Parent, the Parent or any Obligor to perform or comply with any or all of
its obligations under any of the Finance Documents to which it is party or any
of the obligations of the Ultimate Parent, the Parent or any Obligor under any
of the Finance Documents to which it is party are not or cease to be legal,
valid and binding except as contemplated by the Reservations and, if capable of
remedy, is not remedied within 10 Business Days of the earlier of the Ultimate
Parent, the Parent or such Obligor becoming aware of the relevant illegality
and the Facility Agent having given notice of the same to the Borrower.


 


27.12                 Intercreditor Default


 


Any member of the
Group which is party to the Group Intercreditor Agreement or the HYD
Intercreditor Agreement fails to comply with its obligations under it and such
failure, if capable of remedy, is not remedied within 30 days of the earlier of
such member of the Group becoming aware of the relevant failure to comply and
the Facility Agent having given notice of the same to the Parent.


 


27.13                 Revocation of Necessary Authorisations


 


Any Necessary
Authorisation is revoked and where such revocation is reasonably likely to have
a Material Adverse Effect, is not replaced within 10 Business Days.


 


27.14                 Material Adverse Effect


 


Any event or
circumstance occurs which would have a Material Adverse Effect.


 


27.15                 Material Proceedings


 


Any litigation,
arbitration or administrative proceeding of or before any court, arbitral body,
or agency is commenced against any member of the Group, which is reasonably
likely to be adversely determined and which, if adversely determined, is
reasonably likely to have a Material Adverse Effect.


 


27.16                 Change of Ownership


 


(a)                                  After consummation of the
Merger and implementation of each of Steps 1 and 2 set out in the page headed
“Combination of NTL and Telewest” of the
Steps Paper, the Parent, the Company, TCN or any of the Obligors are not direct
or indirect wholly-owned Subsidiaries of the Ultimate Parent.


 


(b)                                  After implementation of each
of Steps 3 to 8 set out in the page headed “Post
Combination Restructuring – First Alternative (Structure 1)” of the
Steps Paper and assuming that the step described in the Steps Paper entitled “Post-Combination Restructuring – Alternative Step 6x (Structure 1)”
has not been implemented either:


 


(i)                                    New UK2 is not a direct or indirect
wholly owned subsidiary of the Ultimate Parent;


 


(ii)                                the Company or TCN ceases to
be a direct wholly-owned Subsidiary of New UK2; or


 


(iii)                            any other Obligor (other than
NTL Cable, New UK and New UK2) ceases to be a


 


155

















 


direct or indirect wholly-owned Subsidiary of New UK2.


 


(c)                                  After implementation of each
of Steps 3 to 8 set out in the page headed “Post
Combination Restructuring – First Alternative (Structure 1)” of the
Steps Paper and assuming that the step described in the Steps Paper entitled “Post-Combination Restructuring – Alternative Step 6x (Structure 1)”
has been implemented:


 


(i)                                    the Company ceases to be a
directly wholly owned subsidiary of Parent; or


 


(ii)                                any of the other Obligors
(other than NTL Cable) ceases to be a direct or indirect wholly-owned
subsidiary of the Company.


 


27.17                 Acceleration


 


Subject to Clauses
27.19 (Vanilla Clean-up Period) and 27.20 (Baseball
Clean-up Period) below, upon the occurrence of an Event of Default
and while the same is continuing at any time thereafter, the Facility Agent may (and,
if so instructed by an Instructing Group, shall) by written notice to the
Company:


 


(a)                                  declare all or any part of
the Outstandings to be immediately due and payable (whereupon the same shall
become so payable together with accrued interest thereon and any other sums
then owed by any Obligor under the Finance Documents) or declare all or any part of
the Outstandings to be due and payable on demand of the Facility Agent; and/or


 


(b)                                  require the Borrowers to
procure that the Outstanding L/C Amount under each Documentary Credit is and
all Ancillary Facility Outstandings are promptly reduced to zero and/or provide
cash collateral therefor by deposit in such interest bearing account as the
Facility Agent may specify for each Documentary Credit/Ancillary Facility
in an amount specified by the Facility Agent and in the currency of such
Documentary Credit/Ancillary Facility (whereupon the Borrower shall do so) but
no greater than the amount outstanding under such Documentary Credit/Ancillary
Facility; and/or


 


(c)                                  declare that any unutilised
portion of the Facilities shall be cancelled, whereupon the same shall be
cancelled and the corresponding Commitments of each Lender shall be reduced to
zero; and/or


 


(d)                                  exercise or direct the
Security Trustee to exercise any rights and remedies (including any right to
demand cash collateral by deposit in such interest-bearing account as the
Facility Agent may specify) to which the Facility Agent, the Security
Trustee or the Lenders may be entitled;


 


provided that, notwithstanding anything to the contrary
contained above in this Clause 27.18, upon the occurrence of any Event of
Default listed in Clauses 27.9 (Similar
Events) or 27.21 (US Obligors)
in relation to any US Obligor, all or any part of the Outstandings shall
be immediately due and payable (whereupon the same shall become so payable
together with accrued interest thereon and any other sums then owed by any
Obligor under the Finance Documents), any unutilised portion of the Facilities
shall be immediately cancelled and the corresponding Commitments of each Lender
shall be reduced to zero and the Facility Agent may exercise or direct the
Security Trustee to exercise any rights and remedies (including any right to
demand cash collateral by deposit in such interest-bearing account as the
Facility Agent may specify) to which the Facility Agent, the Security
Trustee or the Lenders may be entitled.


 


27.18                 Repayment on Demand


 


If, pursuant to
paragraph (a) of Clause 27.17 (Acceleration),
the Facility Agent declares all or any part of the Outstandings to be due
and payable on demand of the Facility Agent, then, and at any time


 


156

















 


thereafter, the
Facility Agent may (and, if so instructed by an Instructing Group, shall)
by written notice to the Company:


 


(a)                                  require repayment of all or
the relevant part of the Outstandings on such date as it may specify
in such notice (whereupon the same shall become due and payable on such date
together with accrued interest thereon and any other sums then owed by the
Parent or any Obligor under the Finance Documents) or withdraw its declaration
with effect from such date as it may specify in such notice; and/or


 


(b)                                  select as the duration of any
Interest Period or Term which begins whilst such declaration remains in effect
a period of 6 months or less.


 


27.19                 Vanilla
Clean-Up Period


 


If, during the
Vanilla Clean-up Period, any matter or circumstance exists in respect of any member
of the Telewest Group which would, but for the provisions of this Clause 27.19,
constitute a breach of any representation under Clause 21 (Representations
and Warranties), the breach of any covenant specified in
Clauses  24.10 (Pension Plans), 25.2 (Negative Pledge), 25.3 (Loans and Guarantees), 25.4 (Financial Indebtedness), 25.8 (Mergers), 25.9 (Joint Ventures), 25.10 (Transactions with
Affiliates) and 25.12 (Limitations
on Hedging) or an Event of Default by reason of Clause 27.5 (Cross Default), then such misrepresentation, breach of
covenant or Event of Default shall not give rise to a Default or Event of
Default unless:


 


(a)                                  NTL or any of its Subsidiaries
(excluding for these purposes any member of the Telewest Group) has procured or
specifically approved a breach of such representations or covenants by a member
of the Telewest Group; or


 


(b)                                  the matter or circumstance
constitutes a Material Adverse Effect; or


 


(c)                                  such matter or circumstance
continues to exist after the expiry of the Vanilla Clean-up Period; or


 


(d)                                  the breach is capable of
remedy and NTL or the relevant member of the Telewest Group is aware of the
relevant circumstances at the time but fails to take appropriate steps to
remedy the same,


 


provided that any
matter contained in this Clause 27.19 shall be without prejudice to the rights
of the Lender in respect of any breach of representation, covenant or default
which continues to exist or arises after the expiry of the Vanilla Clean-Up
Period.


 


27.20                 Baseball Clean-Up Period


 


If, during the Baseball Clean-up Period, any matter or
circumstance exists in respect of any member of the Baseball Group which would, but for the
provisions of this Clause 27.20, constitute a breach of any representation
under Clause 21 (Representations and Warranties),
the breach of any covenant specified in Clauses 
24.10 (Pension Plans),
25.2 (Negative Pledge), 25.3 (Loans and Guarantees), 25.4 (Financial Indebtedness), 25.8 (Mergers), 25.9 (Joint Ventures), 25.10 (Transactions with
Affiliates) and 25.12 (Limitations
on Hedging) or an
Event of Default by reason of Clause 27.5 (Cross Default),
then such misrepresentation, breach of covenant or Event of Default shall not
give rise to a Default or Event of Default unless:


 


(a)                                  the Ultimate Parent or any of
its Subsidiaries (excluding for these purposes any member of the Baseball
Group) has procured or specifically approved a breach of such representations
or covenants by a member of the Baseball Group; or


 


157

















 


(b)                                  the matter or circumstance
constitutes a Material Adverse Effect; or


 


(c)                                  such matter or circumstance
continues to exist after the expiry of the Baseball Clean-up Period; or


 


(d)                                  the breach is capable of
remedy and the Baseball Bidcos are aware of the relevant circumstances at the
time but fail to take appropriate steps to remedy the same,


 


provided that any matter contained in this Clause
27.20 shall be without prejudice to the rights of the Lender in respect of any
breach of representation, covenant or default which continues to exist or
arises after the expiry of the Baseball Clean-Up Period.


 


27.21                 US Obligors


 


Notwithstanding
Clause 27.17 (Acceleration), if any US Obligor
shall commence a voluntary case concerning itself under the US Bankruptcy Code,
or an involuntary case is commenced against any US Obligor and the petition is
not controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case, or a custodian (as defined in the US Bankruptcy Code)
is appointed for, or takes charge of, all or substantially all of the property
of any US Obligor, or any order of relief or other order approving any such
case or proceeding is entered, the Facilities shall cease to be available to
such US Obligor, all Advances outstanding to such US Obligor shall become
immediately due and payable and such US Obligor shall be required to provide
cash cover in respect of all Documentary Credits issued for its account in each
case automatically and without any further action by any party hereto.


 


28.                               DEFAULT INTEREST


 


28.1                        Consequences of Non-Payment


 


If any sum due and
payable by the Parent or any Obligor under this Agreement is not paid on the
due date therefor in accordance with the provisions of Clause 33 (Payments) or if any sum due and payable by an Obligor
pursuant to a judgment of any court in connection with this Agreement is not
paid on the date of such judgment, the period beginning on such due date or, as
the case may be, the date of such judgment and ending on the Business Day
on which the obligation of such Obligor to pay the Unpaid Sum is discharged
shall be divided into successive periods, each of which (other than the first)
shall start on the last day of the preceding such period (which shall be a
Business Day) and the duration of each of which shall (except as otherwise
provided in this Clause 28) be selected by the Facility Agent.


 


28.2                        Default Rate


 


During each such
period relating thereto as is mentioned in Clause 28.1 (Consequences
of Non-Payment) an Unpaid Sum shall bear interest at the rate per
annum which is the sum from time to time of 1%, the Applicable Margin (provided
that if any Unpaid Sum is not directly referable to a particular Facility the
Applicable Margin shall be the Revolving Facility Margin), the Associated Costs
Rate at such time and EURIBOR or LIBOR, as the case may be, on the
Quotation Date therefor, provided that:


 


(a)                                  if, for any such period,
EURIBOR or LIBOR, as the case may be, cannot be determined, the rate of
interest applicable to each Lender’s portion of such Unpaid Sum shall be the
rate per annum which is the sum of 1%, the Applicable Margin, (as aforesaid),
and the Associated Costs Rate at such time and the rate per annum that shall be
notified to the Facility Agent by such Lender as soon as practicable after the
beginning of such period as being that which expresses as a percentage rate per
annum the cost to such Lender of funding from whatever sources it may reasonably
select its portion of such Unpaid Sum during such period; and


 


158

















 


(b)           if such Unpaid Sum is all or part of
an Advance which became due and payable on a day other than the last day of an
Interest Period or Term relating thereto, the first Interest Period applicable
to it shall be of a duration equal to the unexpired portion of that Interest
Period or Term and the rate of interest applicable thereto from time to time
during such Interest Period shall be that which exceeds by 1% the rate which
would have been applicable to it had it not so fallen due.


 


28.3        Maturity of Default Interest


 


Any interest which
shall have accrued under Clause 28.2 (Default Rate)
in respect of an Unpaid Sum shall be due and payable and shall be paid by the
Obligor owing such sum at the end of the period by reference to which it is
calculated or on such other dates as the Facility Agent may specify by
written notice to such Obligor.


 


28.4        Construction of Unpaid Sum


 


Any Unpaid Sum
shall (for the purposes of this Clause 28 (Default
Interest), Clause 18 (Increased Costs),
Clause 31 (Borrowers’ Indemnities) and Schedule 6
(Associated Costs Rate)) be treated as an
advance and accordingly in those provisions the term “Advance” includes any
Unpaid Sum and the term “Interest Period” and “Term”, in relation to an Unpaid
Sum, includes each such period relating thereto as is mentioned in Clause 28.1
(Consequences of Non-Payment).


 


29.          GUARANTEE AND INDEMNITY


 


29.1        Guarantee


 


With effect from
the Merger Closing Date or if later, the date on which it accedes to this
Agreement in such capacity, each Guarantor irrevocably and unconditionally
guarantees, jointly and severally, to each of the Finance Parties the due and
punctual payment by each of the Borrowers of all sums payable by it under each
of the Finance Documents and agrees that promptly on demand it will pay to the
Facility Agent each and every sum of money which any of the Borrowers is at any
time liable to pay to any Finance Party under or pursuant to any Finance
Document and which has become due and payable but has not been paid at the time
such demand is made and provided that before any such demand is made on a
Restricted Guarantor, demand for payment of the relevant sum shall first have
been made on the relevant Borrower.


 


29.2        Indemnity


 


With effect from
the Merger Closing Date, or if later, the date upon which it accedes to this
Agreement in such capacity, each Guarantor (other than a Restricted Guarantor)
irrevocably and unconditionally agrees, jointly and severally, as primary
obligor and not only as surety, to indemnify and hold harmless each Finance Party
on demand by the Facility Agent from and against any loss incurred by such
Finance Party as a result of any of the obligations of the Borrowers under or
pursuant to any Finance Document being or becoming void, voidable,
unenforceable or ineffective as against any Borrower for any reason whatsoever
(whether or not known to that Finance Party or any other person) the amount of
such loss being the amount which the Finance Party suffering it would otherwise
have been entitled to recover from such Borrower.


 


29.3        Continuing and Independent Obligations


 


The obligations of
each Guarantor under this Agreement shall constitute and be continuing
obligations which shall not be released or discharged by any intermediate
payment or settlement of all or any of the obligations of each of the Borrowers
under the Finance Documents, shall continue in full force and effect until the
unconditional and irrevocable payment and discharge in full of all amounts
owing by each of the Borrowers under each of the Finance Documents and are in
addition to and


 


159

















 


independent of, and
shall not prejudice or merge with, any other security (or right of set-off)
which any Finance Party may at any time hold in respect of such obligations
or any of them.


 


29.4        Avoidance of Payments


 


Where any release,
discharge or other arrangement in respect of any obligation of any Borrower, or
any Security held by any Finance Party therefor, is given or made in reliance
on any payment or other disposition which is avoided or must be repaid (whether
in whole or in part) in an insolvency, liquidation or otherwise and whether or
not any Finance Party has conceded or compromised any claim that any such
payment or other disposition will or should be avoided or repaid (in whole or
in part), the provisions of this Clause 29 shall continue as if such release,
discharge or other arrangement had not been given or made.


 


29.5        Immediate Recourse


 


None of the Finance
Parties shall be obliged, before exercising or enforcing any of the rights
conferred upon them in respect of the Guarantors by this Agreement or by Law,
to seek to recover amounts due from any Borrower or to exercise or enforce any
other rights or Security any of them may have or hold in respect of any of
the obligations of any Borrower under any of the Finance Documents save that no
demand for any payment may be made on any Restricted Guarantor unless such
demand has first been made on the relevant Borrower.


 


29.6        Waiver of Defences


 


Neither the
obligations of the Guarantors contained in this Agreement nor the rights,
powers and remedies conferred on the Finance Parties in respect of the
Guarantors by this Agreement or by Law shall be discharged, impaired or
otherwise affected by:


 


(a)           the winding-up, dissolution, administration
or re-organisation of any Borrower or any other person or any change in the
status, function, control or ownership of any Borrower or any such person;


 


(b)           any of the obligations of any Borrower or
any other person under any Finance Document or any Security held by any Finance
Party therefor being or becoming illegal, invalid, unenforceable or ineffective
in any respect;


 


(c)           any time or other indulgence being granted
to or agreed (i) to or with any Borrower or any other person in respect of
its obligations or (ii) in respect of any security granted under any
Finance Documents;


 


(d)           unless otherwise agreed, any amendment to,
or any variation, waiver or release of, any obligation of, or any Security
granted by, any Borrower or any other person under any Finance Document
(including without limitation, any amendment and restatement of this Agreement
in the form of the Structure 2 Senior Facilities Agreement following the
delivery of a Structure Notice);


 


(e)           any total or partial failure to take, or
perfect, any Security proposed to be taken in respect of the obligations of any
Borrower or any other person under the Finance Documents;


 


(f)            any total or partial failure to realise the
value of, or any release, discharge, exchange or substitution of, any security
held by any Finance Party in respect of any Borrower’s obligations under any
Finance Document; or


 


(g)           any other act, event or omission which
might operate to discharge, impair or otherwise affect any of the obligations
of any of the Guarantors under this Agreement or any of the rights,


 


160

















 


powers or remedies conferred upon the Finance Parties
or any of them by this Agreement or by Law.


 


29.7        No Competition


 


Until all amounts
which may become payable by the Borrowers under or in connection with the
Finance Documents have been paid in full, any rights which any Guarantor may at
any time have by way of contribution or indemnity in relation to any of the
obligations of the Borrowers under any of the Finance Documents or to claim or
prove as a creditor of any Borrower or any other person or its estate in
competition with the Finance Parties or any of them, shall be exercised by such
Guarantor only if and to the extent that the Facility Agent so requires and in
such manner and upon such terms as the Facility Agent may specify and each
Guarantor shall hold any moneys, rights or security held or received by it as a
result of the exercise of any such rights on trust for the Facility Agent for
application in or towards payment of any sums at any time owed by the Borrowers
under any of the Finance Documents as if such moneys, rights or security were
held or received by the Facility Agent under this Agreement.


 


29.8        Appropriation


 


To the extent any
Finance Party receives any sum from any Guarantor in respect of the obligations
of any of the other Obligors under any of the Finance Documents which is
insufficient to discharge all sums which are then due and payable in respect of
such obligations of such other Obligors, such Finance Party shall not be
obliged to apply any such sum in or towards payment of amounts owing by such
other Obligor under any of the Finance Documents, and any such sum may, in the
relevant Finance Party’s discretion, be credited to a suspense or impersonal
account and held in such account pending the application from time to time (as
the relevant Finance Party may think fit) of such sums in or towards the
discharge of such liabilities owed to it by such other Obligor under the Finance
Documents as such Finance Party may select provided that such Finance
Party shall promptly make such application upon receiving sums sufficient to
discharge all sums then due and payable to it by such other Obligor under the
Finance Documents.


 


29.9        Limitation of Guarantees Generally


 


The guarantees
provided by each of the Guarantors (other than TCN and its Subsidiaries) shall
be limited to the amount permissible under the Existing High Yield Notes until
Step 5 under the Steps Paper has occurred.


 


29.10      Limitation of Liabilities of United States Guarantors


 


Each Restricted Guarantor and each of the Finance
Parties (by its acceptance of the benefits of the guarantee under this Clause
29) hereby confirms its intention that this guarantee should not constitute a
fraudulent transfer or conveyance for the purposes of any bankruptcy,
insolvency or similar law, the United States Uniform Fraudulent Conveyance
Act or any similar Federal, state or foreign law. To effectuate the foregoing
intention, each Restricted Guarantor and each of the Finance Parties (by its
acceptance of the benefits of the guarantee under this Clause 29) hereby
irrevocably agrees that its obligations under this Clause 29 shall be limited
to the maximum amount as will, after giving effect to such maximum amount and
all other (contingent or otherwise) liabilities of such Restricted Guarantor
that are relevant under such laws, and after giving effect to any rights to
contribution pursuant to any agreement providing for an equitable contribution
among such Restricted Guarantor and the other Guarantors, result in the
obligations of such Restricted Guarantor in respect of such maximum amount not
constituting a fraudulent transfer or conveyance.


 


29.11      Droit de
Discussion and Droit de Division


 


(a)           Any right
which at any time any Guarantor may have under the existing or future
laws of


 


161

















 


Jersey whether by virtue of the
droit de discussion or otherwise to require that recourse be had to the assets
of any other person before any claim is enforced against such Guarantor in
respect of the obligations assumed by such Guarantor under or in
connection with any Finance Document is hereby waived.


 


(b)           Any
right which at any time any Guarantor may have under the existing or
future laws of Jersey whether by virtue of the droit de division or otherwise
to require that any liability under any guarantee or indemnity given in or in
connection with any Finance Document be divided or apportioned with any other
person or reduced in any manner whatsoever is hereby waived.


 


30.          AGENTS


 


30.1        Appointment of the Agents


 


(a)           Each of the other Finance Parties appoints
the Facility Agent to act as its agent under and in connection with the Finance
Documents and authorises the Facility Agent to exercise the rights, powers,
authorities and discretions specifically delegated to it under or in connection
with the Finance Documents together with any other incidental rights, powers,
authorities and discretions.


 


(b)           Each of the other Finance Parties appoints
the US Paying Agent to act as its agent under and in connection with the
Finance Documents.


 


30.2        Appointment of the Administrative Agent


 


Each of the other
Finance Parties appoints the Administrative Agent to act as its agent under and
in connection with the Finance Documents.


 


30.3        Duties of the Facility Agent/US Paying Agent


 


(a)           The Facility Agent and/or the US Paying
Agent, as applicable, shall promptly inform each Lender of the contents of
any notice or document received by it in its capacity as Facility Agent from
the Parent or any of the Obligors under the Finance Documents.


 


(b)           The Facility Agent shall promptly notify
the Lenders of the occurrence of any Event of Default or any default by an
Obligor in the due performance of or compliance with its obligations under any
Finance Document upon becoming aware of the same.


 


(c)           If so instructed by an Instructing Group,
the Facility Agent shall refrain from exercising any power or discretion vested
in it as agent under any Finance Document.


 


(d)           The duties of the Facility Agent and the US
Paying Agent, as the case may be, under the Finance Documents are, save to
the extent otherwise expressly provided, solely mechanical and administrative
in nature.


 


30.4        Role of the Bookrunners, the Arrangers and the Administrative Agent 


 


Except as
specifically provided in the Finance Documents, none of the Bookrunners, the
Arrangers, or the Administrative Agent shall have any obligations of any kind
to any other party under or in connection with any Finance Document.


 


162

















 


30.5        No Fiduciary Duties


 


(a)           Nothing in the Finance Documents
constitutes the Agents or any of the Arrangers as a trustee or fiduciary of any
other person.


 


(b)           Neither the Agents nor any of the Arrangers
shall be bound to account to any Lender for any sum or the profit element of
any sum received by it for its own account.


 


30.6        Business with the Group


 


Any of the Agents
and the Arrangers may accept deposits from, lend money to and generally
engage in any kind of banking or other business with any member of the Group.


 


30.7        Discretion of the Agents


 


(a)           The Agents may rely on:


 


(i)            any representation, notice or document
believed by it to be genuine, correct and appropriately authorised; and


 


(ii)           any statement made by a director,
authorised signatory or employee of any person regarding any matters which may reasonably
be assumed to be within his knowledge or within his power to verify.


 


(b)           The Agents may assume, unless it has
received notice to the contrary in its capacity as agent for the Lenders, that:


 


(i)            no Default has occurred;


 


(ii)           any right, power, authority or discretion
vested in this Agreement upon any party, the Lenders or an Instructing Group
has not been exercised; and


 


(iii)         any notice or request made by the Obligors’
Agent is made on behalf of and with the consent and knowledge of the Parent and
all the Obligors.


 


(c)           The Agents may engage, pay for and
rely on the advice or services of any lawyers, accountants, surveyors or other
experts.


 


(d)           The Agents may act in relation to the
Finance Documents through its personnel and agents.


 


(e)           The Facility Agent may execute on
behalf of any L/C Bank any Documentary Credit issued under this Agreement.


 


30.8        Instructing Group’s Instructions


 


(a)           Unless a contrary indication appears in a
Finance Document, the Facility Agent (or the US Paying Agent, as applicable)
shall (i) act in accordance with any instructions given to it by an
Instructing Group or Revolving Facility Instructing Group, as applicable (or,
if so instructed by an Instructing Group or Revolving Facility Instructing
Group, as applicable, refrain from acting or exercising any right, power,
authority or discretion vested in it as Facility Agent) and (ii) shall not
be liable to any Finance Party for any act (or omission) if it acts (or
refrains from taking any action) in accordance with such an instruction of an
Instructing Group.


 


(b)           Unless a contrary indication appears in a
Finance Document, any instructions given by (i) an Instructing Group will
be binding on all the Finance Parties or (ii) a Revolving Facility
Instructing Group will be binding on all the Lenders under the Revolving
Facility.


 


163

















 


(c)           The Facility Agent (or the US Paying Agent,
as applicable) may refrain from acting in accordance with the instructions
of an Instructing Group, a Revolving Facility Instructing Group, or, if
appropriate, the Lenders until it has received such security or collateral as
it may require for any cost, loss or liability which it may incur in
complying with such instructions.


 


(d)           In the absence of instructions from an
Instructing Group, a Revolving Facility Instructing Group, or, if appropriate,
the Lenders, the Facility Agent (or the US Paying Agent, as applicable) may act
(or refrain from taking action) as it considers to be in the best interests of
the Lenders.


 


(e)           None of the Agents shall be authorised to
act on behalf of a Lender in any legal or arbitration proceedings relating to
any Finance Document without first obtaining the Lender’s consent to do so.


 


30.9        No Responsibility 


 


None of the Agents
or the Arrangers shall be:


 


(a)           responsible for the adequacy, accuracy
and/or completeness of any information (whether oral or written) supplied by
any Finance Party or an Obligor or any other person in or in connection with
any Finance Document, including the Information Memoranda, the Agreed Business
Plan and any Budget; or


 


(b)           responsible for the legality, validity,
effectiveness, adequacy or enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.


 


30.10      Exclusion of Liability


 


(a)           Without limiting paragraph (b) of this
Clause, the Agents will not be liable to any Finance Party for any action taken
by it under or in connection with any Finance Document, unless directly caused
by its negligence or wilful misconduct.


 


(b)           Each of the Lenders agrees that it will not
take any proceedings, or assert or seek to assert any claim, against any
officer, employee or agent of either of the Agents in respect of any claim it
might have against the Facility Agent or in respect of any act or omission of
any kind by that officer, employee or agent in relation to any Finance Document
and agrees that any officer, employee or agent of the Facility Agent may enforce
this provision.


 


(c)           The Facility Agent will not be liable for
any failure to notify any person of any matter referred to in Clause 14.8 (Notification) or any delay (or any related
consequences) in crediting an account with an amount required under the Finance
Documents to be paid by it if it has taken all reasonable steps to comply with
Clause 14.8 (Notification) and
taken all necessary steps as soon as reasonably practicable to comply with the
regulations or operating procedures of any recognised clearing or settlement
system used by it for that purpose.


 


30.11      Lender’s Indemnity


 


Each Lender shall
(in its relevant Proportion (as determined at all times for these purposes in
accordance with paragraph (c) of the definition of “Proportion”) indemnify
the Agents from time to time on demand by the Agents against any cost, loss or
liability incurred by such Agent (otherwise than by reason of its negligence or
wilful misconduct) in acting as an Agent under the Finance Documents (unless it
has been reimbursed therefor by an Obligor pursuant to the terms of the Finance
Documents).


 


164

















 


30.12      Resignation


 


(a)           The Facility Agent or the US Paying Agent may resign
and appoint one of its Affiliates acting through an office in the United
Kingdom (or, in the case of the US Paying Agent, acting through an office in
the State of New York) as successor Agent by giving notice to the Lenders and
the Company.


 


(b)           The Facility Agent or the US Paying Agent may resign
without having designated a successor as agent under paragraph (a) above
(and shall do so if so required by an Instructing Group) by giving notice to
the Lenders and the Company, in which case an Instructing Group may appoint
a successor Facility Agent (acting through an office in the United Kingdom), or
a successor US Paying Agent (acting through an office in the State of New
York), approved by the Company or the US Borrower, acting reasonably. If an
Instructing Group has not appointed a successor Facility Agent or successor US
Paying Agent in accordance with this paragraph (b) within 30 days after
notice of resignation was given, the Facility Agent may appoint a
successor Facility Agent (acting through an office in the United Kingdom)
and/or the US Paying Agent may appoint a successor US Paying Agent (acting
through an office in the State of New York), approved by the Company, acting
reasonably.


 


(c)           The retiring Facility Agent or US Paying
Agent, as applicable shall, at the Borrowers’ cost, make available to its
successor such documents and records and provide such assistance as its
successor may reasonably request for the purposes of performing its
functions as Facility Agent or US Paying Agent, as applicable under the Finance
Documents.


 


(d)           The resignation notice of the Facility
Agent or the US Paying Agent shall only take effect upon the appointment of a
successor Facility Agent or US Paying Agent, as applicable .


 


(e)           Upon the appointment of a successor, the
retiring Facility Agent or US Paying Agent, as applicable shall be discharged
from any further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of this Clause 30. The Facility Agent’s
successor or US Paying Agent’s successor, as applicable, and each of the other
parties to this Agreement shall have the same rights and obligations amongst
themselves as they would have had if such successor Facility Agent or successor
US Paying Agent, as applicable had been an original party as Facility Agent or
as US Paying Agent, as the case may be.


 


(f)            Unless otherwise agreed between the
Administrative Agent and the Borrower, the Administrative Agent shall automatically
resign (and no successor shall need to be appointed) on the day upon which it
ceases to be a party to this Agreement in the capacity as a Lender.


 


30.13      Confidentiality


 


(a)           The Facility Agent (in acting as agent for
the Finance Parties), the US Paying Agent (in acting as US paying agent for the
Lenders to the US Borrower) and the Administrative Agent (in acting as agent
for the Lenders) shall be regarded as acting through its agency division which
shall be treated as a separate entity from any other of its divisions or
departments.


 


(b)           If information is received by another
division or department of the Facility Agent, US Paying Agent or the
Administrative Agent it may be treated as confidential to that division or
department and the Facility Agent, US Paying Agent or the Administrative Agent,
as the case may be, shall not be deemed to have notice of it.


 


(c)           Notwithstanding any other provision of any
Finance Document to the contrary, the Finance Parties are not obliged to
disclose to any other person (i) any confidential information or (ii) any
other information if the disclosure would, or might in its reasonable opinion,
constitute a breach of any Law.


 


165

















 


(d)           Notwithstanding any other provision of any
Finance Document, the parties (and each employee, representative or other agent
of the parties) may disclose to any and all persons, without limitation of
any kind, the tax treatment and any facts that may be relevant to the tax
structure of the transaction, provided, however, that no party (and no
employee, representative, or other agent thereof) shall disclose any other
information that is not relevant to understanding the tax treatment and tax
structure of the transaction (including the identity of any party and any
information that could lead another to determine the identity of any party), or
any other information to the extent that such disclosure could reasonably
result in a violation of any applicable securities law.


 


30.14      Facility Office


 


Each of the Agents may treat
each Lender as a Lender, entitled to payments under this Agreement and acting
through its Facility Office unless it has received not less than 5 Business
Days’ prior notice from that Lender to the contrary in accordance with the terms
of this Agreement.


 


30.15      Lenders’ Associated Costs Details


 


To the extent
applicable, each Lender shall supply the Facility Agent and/or the US Paying
Agent, as applicable, with any information required by the Facility Agent in
order to calculate the Associated Costs Rate in accordance with Schedule 6
(Associated Costs Rate).


 


30.16      Credit Appraisal by the Lenders


 


Without affecting
the responsibility of the Parent or any Obligor for information supplied by it
or on its behalf in connection with any Finance Document, each Lender confirms
to each of the Agents, the Bookrunners and the Arrangers that it has been, and
will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with
any Finance Document including but not limited to:


 


(a)           the financial condition, status and nature
of each member of the Group;


 


(b)           the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document and any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document;


 


(c)           whether that Lender has recourse, and the
nature and extent of that recourse, against any party or any of its respective
assets under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Finance Document; and


 


(d)           the adequacy, accuracy and/or completeness
of the Information Memoranda, the Agreed Business Plan and each Budget and any
other information provided by the Agents, the Bookrunners, the Arrangers or by
any other person under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document.


 


30.17      Deduction from Amounts Payable by the Agents


 


If any amount is
due and payable by any party to the Facility Agent, the US Paying Agent or the
Administrative Agent under any Finance Document the Facility Agent, the US
Paying Agent or the Administrative Agent, as the case may be, may, after
giving notice to that party, deduct an amount not exceeding that amount from
any payment to that party which the Facility Agent, the US Paying Agent


 


166

















 


or the
Administrative Agent would otherwise be obliged to make under the Finance
Documents and apply the amount deducted in or towards satisfaction of the
amount owed. For the purposes of the Finance Documents that party shall be
regarded as having received such payment without any such deduction.


 


30.18      Obligors’ Agent


 


(a)           The Parent and each Obligor (other than the
Company and the US Borrower) irrevocably authorises the Company to act on its
behalf as its agent in relation to the Finance Documents and irrevocably
authorises:


 


(i)            the Company on its behalf to supply all
information concerning itself, its financial condition and otherwise to the
relevant persons contemplated under this Agreement and to give all notices and
instructions to execute on its behalf any Finance Document and to enter into
any agreement in connection with the Finance Documents notwithstanding that the
same may affect the Parent or such Obligor, without further reference to
or the consent of the Parent or such Obligor; and


 


(ii)           each Finance Party to give any notice,
demand or other communication to be given to or served on the Parent or such
Obligor pursuant to the Finance Documents to the Company on its behalf,


 


and in each such case the Parent or such Obligor will
be bound thereby as though the Parent or such Obligor itself had supplied such
information, given such notice and instructions, executed such Finance Document
and agreement or received any such notice, demand or other communication.


 


(b)           Every act, omission, agreement,
undertaking, settlement, waiver, notice or other communication given or made by
the Obligors’ Agent under any Finance Document, or in connection with this
Agreement (whether or not known to the Parent or any other Obligor, as the case
may be, and whether occurring before or after such person became party to
this Agreement), shall be binding for all purposes on the Parent and all other
Obligors (other than the US Borrower) as if the Parent or the other Obligors
(other than the US Borrower) had expressly made, given or concurred with the
same. In the event of any conflict between any notices or other communications
of the Obligors’ Agent and the Parent or any other Obligor (other than the US
Borrower), those of the Obligors’ Agent shall prevail.


 


30.19      Co-operation with the Agents


 


Each Lender and
each Obligor will co-operate with each of the Agents to complete any legal
requirements imposed on the Agents in connection with the performance of its
duties under this Agreement and shall supply any information requested by the
Agents in connection with the proper performance of those duties provided that
neither the Parent nor any Obligor shall be under any obligation to provide any
information the supply of which would be contrary to any confidentiality
obligation binding on any member of the Group or prejudice the retention of
legal privilege in such information and provided further that neither the
Parent nor any Obligor shall (and the Company shall procure that no member of
the Bank Group shall) be able to deny the Agents any such information by reason
of it having entered into a confidentiality undertaking which would prevent it
from disclosing, or be able to claim any legal privilege in respect of, any
financial information relating to itself or the Group.


 


30.20      “Know your client” checks


 


Nothing in this Agreement
shall oblige the either of the Agents or the Arrangers to carry out any “know
your client” or other applicable anti-money laundering checks in relation to
the identity of any


 


167

















 


person on behalf of
any Lender and each Lender confirms to the each of the Agents, the Bookrunners
and the Arrangers that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in
relation to such checks made by any other person.


 


30.21      US Paying Agent


 


The Facility Agent
shall delegate to any of its affiliates or appoint one or more agents in the US
for the purposes of facilitating any payments required to be made to the US
Borrower under this Agreement (and the US Borrower has the right to consent to
such delegation). Any such delegation or appointment may be made upon such
terms and conditions (including the power to sub-delegate or appoint any
sub-agents) and subject to such restrictions as the Facility Agent and the US
Borrower may think fit in the interests of
the Finance Parties and the Facility Agent shall not be bound to supervise, or
be in any way responsible for any loss incurred by reason of any misconduct or
default on the part of any such delegate, sub-delegate, agent or sub-agent.
The Facility Agent and the US Borrower may agree, without the prior
consent of any other person, such amendments which are of an administrative or
technical nature, as may be necessary for the purposes of giving effect to
any such delegation or appointment and such amendments, once made, shall be
binding on each of Finance Parties.


 


31.          BORROWERS’ INDEMNITIES 


 


31.1        General Indemnities


 


With effect from
the Merger Closing Date, each of the Borrowers undertake, on a joint and several
basis, to indemnify:


 


(a)           each of the Finance Parties against any
out-of-pocket cost, claim, loss, expense (including legal fees) or liability,
which any of them may sustain or incur as a consequence of the occurrence
of any Default; and


 


(b)           each Lender against any out-of-pocket loss
it may suffer or incur as a result of (i) its funding or making
arrangements to fund its portion of an Advance or (ii) its issuing or
making arrangements to issue a Documentary Credit or (iii) its funding or
making arrangements to fund any Ancillary Facility made available by it, in
each case requested by any Borrower under this Agreement but not made by reason
of the operation of any one or more of the provisions of this Agreement (save
as a result of such Lender’s own gross negligence or wilful default).


 


31.2        Break Costs


 


(a)           Each Borrower shall, within 3 Business Days
of demand by a Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of any Advance or Unpaid Sum being paid by
that Borrower on a day other than the last day of an Interest Period or Term
for that Advance or Unpaid Sum.


 


(b)           Each Lender shall, as soon as reasonably
practicable after a demand by the Facility Agent, provide a certificate
confirming the amount of its Break Costs for any Interest Period or Term in
which they accrue.


 


168

















 


32.          CURRENCY OF ACCOUNT


 


32.1        Currency


 


Sterling is the
currency of account and payment for each and every sum at any time due from any
Obligor under this Agreement provided that:


 


(a)           each repayment of any Outstandings or
Unpaid Sum (or part of it) shall be made in the currency in which those
Outstandings or Unpaid Sum are denominated on their due date;


 


(b)           interest shall be payable in the currency
in which the sum in respect of which such interest is payable was denominated
when that interest accrued;


 


(c)           each payment in respect of costs and
expenses shall be made in the currency in which the same were incurred; and


 


(d)           each payment pursuant to Clause 17.3 (Tax Indemnity) or Clause 18.1 (Increased
Costs) shall be made in the currency specified by the Finance Party
claiming under it, acting reasonably.


 


32.2        Currency Indemnity


 


If any sum due from
the Parent or any Obligor under this Agreement or any order or judgment given
or made in relation to this Agreement 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
Parent or such Obligor, (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, each Borrower agrees, with effect from the Merger
Closing Date, to indemnify and hold harmless each of the persons to whom such
sum is due from and against any loss suffered or incurred as a result of any
discrepancy between (x) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second currency
and (y) the rate or rates of exchange at which such person may in the
ordinary course of business purchase the first currency with the second
currency at the time of receipt of the sum paid to it in satisfaction, in whole
or in part, of any such order, judgment, claim or proof.


 


33.          PAYMENTS


 


33.1        Payment to the Facility Agent and the US Paying Agent


 


On each date on
which this Agreement requires an amount to be paid by the Parent or any Obligor
or any of the Lenders under this Agreement, the Parent or such Obligor or, as
the case may be, such Lender shall make the same available to the Facility
Agent or, in the case of payments by the US Borrower, the US Paying Agent by payment
in same day funds (or such other funds as may for the time being be
customary for the settlement of transactions in the relevant currency) to such
account or bank as the Facility Agent or US Paying Agent, as applicable (acting
reasonably) may have specified for this purpose and any such payment which
is made for the account of another person shall be made in time to enable the
Facility Agent or US Paying Agent, as applicable to make available such person’s
portion of it to such other person in accordance with Clause 33.2 (Same Day Funds).


 


33.2        Same Day Funds


 


Save as otherwise
provided in this Agreement, each payment received by the Facility Agent or US
Paying Agent, as applicable for the account of another person shall be made
available by the Facility Agent to such other person (in the case of a Lender,
for the account of its Facility Office) for value the same day by transfer to
such account of such person with such bank in a Participating Member State


 


169

















 


or London (or for
payments in Dollars or any Optional Currency, in the applicable financial
centre) as such person shall have previously notified to the Facility Agent or
US Paying Agent, as applicable, for this purpose.


 


33.3        Clear Payments


 


Any payment
required to be made by the Parent or any Obligor under this Agreement shall be
calculated without reference to any set-off or counterclaim and shall be made
free and clear of, and without any deduction for or on account of, any set-off
or counterclaim.


 


33.4        Partial Payments 


 


If the Facility
Agent or US Paying Agent, as applicable, receives a payment that is
insufficient to discharge all the amounts then due and payable by the Parent or
any Obligor under the Finance Documents, the Facility Agent or US Paying Agent,
as applicable, shall, unless otherwise instructed by an Instructing Group,
apply that payment towards the obligations of that Obligor under the Finance
Documents in the following order:


 


(a)           first, in payment in or towards payment pro rata of any unpaid fees, costs and expenses incurred by
the Facility Agent or US Paying Agent, as applicable, and the L/C Bank under
the Finance Documents;


 


(b)           secondly, in or towards payment pro rata of any accrued interest or commission due but
unpaid under any Finance Document;


 


(c)           thirdly, in or towards payment pro rata of any principal due but unpaid under any Finance
Document; and


 


(d)           fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance
Documents,


 


and such application
shall override any appropriation made by an Obligor.


 


33.5        Indemnity


 


Where a sum is to
be paid under the Finance Documents to the Facility Agent or US Paying Agent,
as applicable, for the account of another person, the Facility Agent or US
Paying Agent, as applicable, shall not be obliged to make the same available to
that other person (or to enter into or perform any exchange contract in
connection therewith) until it has been able to establish to its satisfaction
that it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person to whom
such sum (or the proceeds of such exchange contract) was (or were) so made
available shall on request refund the same to the Facility Agent or the US
Paying Agent, as applicable, together with an amount sufficient to indemnify
and hold harmless the Facility Agent or US Paying Agent, as applicable, from
and against any cost or loss it may have suffered or incurred by reason of
its having paid out such sum (or the proceeds of such exchange contract) prior
to its having received such sum. This indemnity shall only apply to the
Obligors with effect from the Merger Closing Date.


 


33.6        Notification of Payment


 


Without prejudice
to the liability of each party to this Agreement to pay each amount owing by it
under this Agreement on the due date therefor, whenever a payment is expected
to be made by any of the Finance Parties, the Facility Agent or the US Paying
Agent, as applicable, shall give notice prior to the expected date for such
payment, notify all such Finance Parties of the amount, currency and timing of
such payment.


 


170

















 


33.7        Business Days


 


(a)           Any payment which is due to be made on a
day that is not a Business Day shall be made on the immediately succeeding
Business Day in the same calendar month (if there is one) or the immediately
preceding Business Day (if there is not).


 


(b)           During any extension of the due date for
payment of any principal or an Unpaid Sum under this Agreement, interest is
payable on such amount at the rate payable on the original due date.


 


34.          SET-OFF


 


34.1        Right to Set-off


 


With effect from
the Merger Closing Date, the Parent and each of the Obligors authorises each
Lender to apply any credit balance to which the Parent or such Obligor is
entitled on any account of the Parent or such Obligor with that Lender in
satisfaction of any sum due and payable from the Parent or such Obligor to such
Lender under this Agreement but unpaid; for this purpose, each Lender is
authorised to purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect such
application.


 


34.2        No Obligation


 


No Lender shall be
obliged to exercise any right given to it by Clause 34.1 (Right to
Set-Off).


 


35.          SHARING AMONG THE FINANCE PARTIES


 


35.1        Payments to Finance Parties


 


If a Finance Party
(a “Recovering Finance Party”)
receives or recovers any amount from the Parent or any Obligor other than in accordance
with Clause 33 (Payments) and applies that amount
to a payment due under the Finance Documents then:


 


(a)           the Recovering Finance Party shall, within
3 Business Days, notify details of the receipt or recovery to the Facility
Agent;


 


(b)           the Facility Agent shall determine whether
the receipt or recovery is in excess of the amount the Recovering Finance Party
would have been paid had the receipt or recovery been received or made by the
Facility Agent and distributed in accordance with Clause 33.4 (Partial Payments), without taking account of any tax which
would be imposed on the Facility Agent in relation to the receipt, recovery or
distribution; and


 


(c)           the Recovering Finance Party shall, within
3 Business Days of demand by the Facility Agent, pay to the Facility Agent an
amount (the “Sharing Payment”)
equal to such receipt or recovery less any amount which the Facility Agent
determines may be retained by the Recovering Finance Party as its share of
any payment to be made, in accordance with Clause 33.4 (Partial
Payments).


 


35.2        Redistribution of Payments


 


The Facility Agent
shall treat the Sharing Payment as if it had been paid by the Parent or the
relevant Obligor and shall distribute it between the Finance Parties (other
than the Recovering Finance Party) in accordance with Clause 33.4 (Partial Payments).


 


171

















 


35.3        Recovering Finance Party’s Rights


 


(a)           On a distribution by the Facility Agent
under Clause 35.2 (Redistribution of Payments),
the Recovering Finance Party will be subrogated to the rights of the Finance
Parties which have shared in the redistribution.


 


(b)           If and to the extent that the Recovering
Finance Party is not able to rely on its rights under paragraph (a) above,
the Parent or the relevant Obligor shall be liable to the Recovering Finance
Party for a debt equal to the Sharing Payment which is immediately due and
payable.


 


35.4        Reversal of Redistribution


 


If any part of
the Sharing Payment received or recovered by a Recovering Finance Party becomes
repayable and is repaid by that Recovering Finance Party, then:


 


(a)           each Finance Party which has received a
share of the relevant Sharing Payment pursuant to Clause 35.2 (Redistribution of Payments) shall,
upon the request of the Facility Agent, pay to the Facility Agent for account
of that Recovering Finance Party an amount equal to its share of the Sharing
Payment (together with an amount as is necessary to reimburse that Recovering
Finance Party for its share of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay); and


 


(b)           that Recovering Finance Party’s rights of
subrogation in respect of any reimbursement shall be cancelled and the Parent
or the relevant Obligor will be liable to the reimbursing Finance Party for the
amount so reimbursed.


 


35.5        Exceptions


 


(a)           This Clause 35 shall not apply to the
extent that the Recovering Finance Party would not, after making any payment
pursuant to this Clause, have a valid and enforceable claim against the Parent
or the relevant Obligor.


 


(b)           A Recovering Finance Party is not obliged
to share with any other Finance Party under this Clause 35, any amount which
the Recovering Finance Party has received or recovered as a result of taking
legal or arbitration proceedings, if:


 


(i)            it notified such other Finance Party of the
legal or arbitration proceedings; and


 


(ii)           such other Finance Party had an opportunity
to participate in those legal or arbitration proceedings but did not do so as
soon as reasonably practicable having received notice of it or did not take
separate legal or arbitration proceedings.


 


35.6        Ancillary Lenders


 


(a)           This Clause 35 shall not apply to any
receipt or recovery by a Lender in its capacity as an Ancillary Lender at any
time prior to service of notice under Clause 27.17 (Acceleration).


 


(b)           Following service of notice under Clause
27.17 (Acceleration), this Clause 35 shall
apply to all receipts or recoveries by Ancillary Lenders except to the extent
that the receipt or recovery represents a reduction from the Designated Gross
Amount for an Ancillary Facility to its Designated Net Amount.


 


172

















 


36.          CALCULATIONS AND ACCOUNTS


 


36.1        Day Count Convention


 


Interest and
commitment commission shall accrue from day to day and shall be calculated on
the basis of a year of 365 days (in the case of amounts denominated in
Sterling) or 360 days (in the case of amounts denominated in any other
currency) (as appropriate or, in any case where market practice differs, in
accordance with market practice) and the actual number of days elapsed and any
Tax Deductions required to be made from any payment of interest shall be
computed and paid accordingly.


 


36.2        Reductions


 


Any repayment of
any Advance denominated in an Optional Currency shall reduce the amount of such
Advance by the amount of such Optional Currency repaid and shall reduce the
Sterling Amount of such Advance proportionately.


 


36.3        Reference Banks


 


Save as otherwise
provided in this Agreement, on any occasion a Reference Bank or Lender fails to
supply the Facility Agent with an interest rate quotation required of it under
the foregoing provisions of this Agreement, the rate for which such quotation
was required shall be determined from those quotations which are supplied to
the Facility Agent.


 


36.4        Maintain Accounts


 


Each Lender shall
maintain in accordance with its usual practice accounts evidencing the amounts
from time to time lent by and owing to it under this Agreement.


 


36.5        Control Accounts


 


The Facility Agent
shall maintain on its books a control account or accounts in which shall be
recorded:


 


(a)           the amount and the Sterling Amount of any
Advance or Unpaid Sum and the face amount and the Sterling Amount of any
Documentary Credit, and each Lender’s share in it;


 


(b)           the Sterling Amount of the Ancillary
Facility Commitment (if any) of each Lender;


 


(c)           the amount of all principal, interest and
other sums due or to become due from each of the Obligors to any of the Lenders
under the Finance Documents and each Lender’s share in it; and


 


(d)           the amount of any sum received or recovered
by the Facility Agent under this Agreement and each Lender’s share in it.


 


36.6        Prima Facie Evidence


 


In any legal action
or proceeding arising out of or in connection with this Agreement, the entries
made in the accounts maintained pursuant to Clause 36.4 (Maintain Accounts) and Clause 36.5 (Control Accounts) shall, in the absence of manifest error,
be prima  facie
evidence of the existence and amounts of the specified obligations of the
Obligors.


 


173

















 


36.7        Certificate of Finance Party


 


A certificate of a
Finance Party as to the amount for the time being required to indemnify it
against any Tax Liability pursuant to Clause 17.3 (Tax Indemnity)
or any Increased Cost pursuant to Clause 18.1 (Increased
Costs) shall, in the absence of manifest error, be prima facie evidence of the existence and amounts of the
specified obligations of the Borrowers.


 


36.8        Certificate of the Facility Agent


 


A certificate of
the Facility Agent as to the amount at any time due from any Borrower under
this Agreement (or the amount which, but for any of the obligations of any
Borrower under this Agreement being or becoming void, unenforceable or
ineffective, at any time, would have been due from such Borrower under this
Agreement) shall, in the absence of manifest error, be prima facie evidence
for the purposes of Clause 29 (Guarantee and Indemnity).


 


36.9        Certificate of L/C Bank


 


A certificate of an
L/C Bank as to the amount paid out or at any time due in respect of a
Documentary Credit shall, absent manifest error, be prima facie
evidence of the payment of such amounts or (as the case may be) of the
amounts outstanding in any legal action or proceedings arising in connection
therewith.


 


37.          ASSIGNMENTS AND TRANSFERS


 


37.1        Successors and Assignees


 


This Agreement
shall be binding upon and enure to the benefit of each party to this Agreement
and its or any subsequent successors, permitted assignees and Transferees.


 


37.2        Assignment or Transfers by Obligors


 


None of the rights,
benefits and obligations of an Obligor under this Agreement shall be capable of
being assigned or transferred and each Obligor undertakes not to seek to assign
or transfer any of its rights, benefits and obligations under this Agreement in
each case, other than to another Obligor and, in each case, provided that no
Event of Default is continuing or would arise as a result of such assignment or
transfer.


 


37.3        Assignments or Transfers by Lenders


 


(a)           Any Lender may, at any time, assign all or
any of its rights and benefits under the Finance Documents in accordance with
Clause 37.4 (Assignments) or transfer all or
any of its rights, benefits and obligations under the Finance Documents in
accordance with Clause 37.5 (Transfer Deed)
provided that:


 


(i)            the prior consultation of the Company shall
be required in respect of any assignment or transfer arising prior to the
achievement of Successful Syndication;


 


(ii)           the prior consent of the Company is received
in respect of any assignment or transfer after the achievement of a Successful
Syndication, such consent not to be unreasonably withheld, provided that:


 


(A)          such consent shall be deemed to have been
given if not declined in writing within 10 Business Days of a written request
by any Lender to the Company;


 


(B)          no consent shall be required in the case
of any assignment or transfer by a


 


174

















 


Lender to its
Affiliate which is either a Qualifying UK Lender (in the case of a
participation to a UK Borrower) or a US Accession Lender (in the case of a
participation to the US Borrower); and


 


(C)          no consent shall be required in the case
of any assignment or transfer to any third party at any time after the occurrence
of a Major Event of Default which is continuing; and


 


(iii)         the proposed Transferee makes one of the
representations set out in paragraph 8 of the Transfer Deed and provides
the Company with the information required under paragraph 9 of the Transfer Deed.


 


(b)           No Lender shall be entitled to:


 


(i)            effect any assignment or transfer:


 


(A)          in respect of any
portion of its Commitment and/or Outstandings under any individual Facility in
an amount of less than £1,000,000, $1,000,000 or €1,000,000 (in the case of
participations in Advances denominated in Sterling, Dollars or Euro
respectively) (or its equivalent as at the date of such assignment or
transfer);


 


(B)          which would result
in it or the proposed assignee or transferee holding an aggregate participation
of more than zero but less than £5,000,000 (or its equivalent as at the date of
such assignment or transfer) in the Facilities, save that an assignment or
transfer may be made to or by a trust, fund or other non-bank entity which
customarily participates in the institutional market which would result in such
entity holding an aggregate participation of at least £1,000,000, $1,000,000 or
€1,000,000 (in the case of participations in Advances denominated in Sterling,
Dollars or Euro respectively) in the Facilities; or


 


(C)          in relation to its
participation in the Revolving Facility other than to the extent such transfers
and assignments are on a pro rata basis as between the relevant Lender’s
Commitment under and participation in Outstandings under the Revolving
Facility;


 


(ii)           in relation to any sub-participation of its
rights and obligations under the Facilities, relinquish some or all of its
voting rights in respect of the Facilities to any person in respect of any such
sub-participation other than voting rights in respect of the matters referred
to in paragraphs (b), (c), (d) or (e) of Clause 43.4 (Consent).


 


(c)           Only a Lender which is a US Accession
Lender may lend at any time to the US Borrower (and only in respect of the
B1 Facility) and the maximum amount of Outstandings lent to such US Borrower at
any one time shall not exceed an amount equal to 20 per cent. of the aggregate
Commitments as of the date of this Agreement.


 


(d)           To the extent that:


 


(i)            any US Accession Lender becomes a
Qualifying UK Lender or assigns any of its interest as Lender to a Qualifying
UK Lender; or


 


(ii)           any Qualifying UK Lender ceases to be a
Qualifying UK Lender or assigns any of its interest as Lender to any person
which is not a Qualifying UK Lender,


 


175

















 


the Company may require
the relevant Borrower to whom such Lender has made Advances (a “Transferor Borrower”) to novate its obligations under all
Outstandings owed to that Lender to another Borrower (the “Transferee
Borrower”), which shall be entitled to pay interest to that Lender
without any withholding.


 


(e)           If:


 


(i)            any sum payable to any Lender by an Obligor
is required to be increased under Clause 17.1 (Tax Gross-up);


 


(ii)           a Lender claims indemnification from a
Borrower under the provisions of Clause 17.3 (Tax
Indemnity) or Clause 18.1 (Increased Costs);
or


 


(iii)         any Lender becomes a Non-Consenting Lender
or a Non-Funding Lender,


 


the Company may within 90 days of such
requirement or position being notified to it, request that such Lender assigns
or transfers all of its rights and obligations under this Agreement at par
(including any rights and obligations it may have in its capacity as a
Hedge Counterparty) to any person selected by the Company that has agreed to
accept such assignment or transfer, and such Lender shall effect such
assignment or transfer within 10 Business Days of such request.


 


(f)            For the purposes of satisfying the minimum
hold requirement set out in paragraph (b)(i) of this Clause 37.3, any
participations held by funds advised and/or managed by a common entity may be
aggregated.


 


(g)           Notwithstanding any other provision of this
Agreement, the consent of the L/C Bank shall be required (such consent not to
be unreasonably withheld or delayed) for any assignment or transfer of any
Lender’s rights and/or obligations under the Revolving Facility provided that
in relation to any assignment or transfer required by the Borrower under
paragraph (c), the L/C Bank may not withhold such consent unless, acting
reasonably, the reason for so doing relates to the creditworthiness of the
proposed assignee or transferee.


 


(h)           Notwithstanding any other provision of this
Clause 37.3 (Assignments or Transfers by Lenders),
no assignment or transfer shall be permitted to settle or otherwise become effective
within the period of five Business Days prior to (a) the end of any
Interest Period or (b) any Repayment Date.


 


37.4        Assignments


 


If any Lender
wishes to assign all or any of its rights and benefits under the Finance
Documents, unless and until the relevant assignee has agreed with the other
Finance Parties that it shall be under the same obligations towards each of
them as it would have been under if it had been an original party to the
Finance Documents as a Lender, such assignment shall not become effective and
the other Finance Parties shall not be obliged to recognise such assignee as
having the rights against each of them which it would have had if it had been
such a party to this Agreement.


 


37.5        Transfer Deed


 


(a)           If any Lender wishes to transfer all or any
of its rights, benefits and/or obligations under the Finance Documents, such
transfer may be effected by novation through the delivery to the Facility
Agent of a duly completed and duly executed Transfer Deed.


 


(b)           The Facility Agent shall only be obliged to
execute a Transfer Deed delivered to it pursuant to paragraph (a) above,
upon its satisfaction with the results of all “know your client” or other


 


176

















 


applicable anti-money laundering checks relating to
the identity of any person that it is required to carry out in relation to such
Transferee.


 


(c)           Upon its execution of the Transfer Deed
pursuant to paragraph (b) above on the later of the Transfer Date
specified in such Transfer Deed and the fifth Business Day after (or such
earlier Business Day endorsed by the Facility Agent on such Transfer Deed
falling on or after) the date of execution of such Transfer Deed by the
Facility Agent:


 


(i)            to the extent that in such Transfer Deed
the Lender party to it seeks to transfer its rights, benefits and obligations
under the Finance Documents, the Ultimate Parent, the Parent, each of the
Obligors and such Lender shall be released from further obligations towards one
another under the Finance Documents to that extent and their respective rights
against one another shall be cancelled to that extent (such rights and
obligations being referred to in this Clause 37.5 as “discharged rights and obligations”);


 


(ii)           the Ultimate Parent, the Parent, each of
the Obligors and the Transferee party to it shall assume obligations towards
one another and/or acquire rights against one another which differ from the
discharged rights and obligations only insofar as the Ultimate Parent, the
Parent, such Obligor and such Transferee have assumed and/or acquired the same
in place of the Ultimate Parent, the Parent, such Obligor and such Lender;


 


(iii)         the other Finance Parties and the
Transferee shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and assumed had such
Transferee been an original party to the Finance Documents as a Lender with the
rights, benefits and obligations acquired or assumed by it as a result of such
transfer;


 


(iv)          all payments due hereunder from the Parent
or any Obligor shall be due and payable to such Transferee and not to the
transferring Lender; and


 


(d)           such Transferee shall become a party to
this Agreement as a Lender.


 


37.6        Transfer Fee


 


On the date upon
which a transfer takes effect pursuant to Clause 37.5 (Transfer Deed) the Transferee in respect of such transfer
shall pay to the Facility Agent for its own account a transfer fee of £1,500
provided that this fee shall not be payable by any Lender that becomes a party
to this Agreement prior to the Syndication Date.


 


37.7        Disclosure of Information


 


(a)           Each of the Agents, the Security Trustee,
the Bookrunners, the Arrangers, the Lenders, the L/C Bank and any Ancillary
Facility Lender agrees to maintain the confidentiality of all information
received from the Ultimate Parent or any member of the Group relating to the
Ultimate Parent or any member of the Group or its business other than any such
information that:


 


(i)            is or becomes public knowledge other than
as a direct result of any breach of this Clause; or


 


(ii)           is available to the Agents, the Security
Trustee, the Bookrunners, the Arrangers, the Lenders, the L/C Bank or such
Ancillary Facility Lender on a non-confidential basis prior to receipt thereof
from the relevant member of the Group; or


 


177

















 


(iii)         is lawfully obtained by any of the Agents,
the Security Trustee, the Bookrunners, the Arrangers, the Lenders, the L/C Bank
and any Ancillary Facility Lender after that date of receipt other than from a
source which is connected with the Group and which, as far as the relevant
recipient thereof is aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality.


 


(b)           Notwithstanding paragraph (a) of this
Clause 37.7 any Lender may disclose to any of its Affiliates, to any
actual or potential assignee or Transferee, to any person who may otherwise
enter into contractual relations with such Lender in relation to this Agreement
or any person to whom, and to the extent that, information is required to be
disclosed by any applicable Law, such information about the Ultimate Parent,
the Parent, the Obligors or the Group as a whole as such Lender shall consider
appropriate provided that any such Affiliate, actual or potential assignee or
Transferee or other person who may otherwise enter into contractual
relations in relation to this Agreement shall first have entered into a
confidentiality undertaking on substantially the same terms as this Clause 37.7.


 


37.8        No Increased Obligations


 


If:


 


(a)           a Lender assigns or transfers any of its
rights or obligations under the Finance Documents or changes its Facility
Office; and


 


(b)           as a result of circumstances existing at
the date of the assignment, transfer or change of Facility Office, the Parent
or an Obligor would be obliged to make a payment to the assignee, Transferee or
the Lender acting through its new Facility Office under Clause 17.1 (Tax Gross-Up), 17.3 (Tax Indemnity)
or Clause 18 (Increased Costs),


 


then the assignee,
Transferee or the Lender acting through its new Facility Office shall only be
entitled to receive payment under those Clauses to the same extent as the
assignor, transferor or the Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not occurred.


 


37.9        Notification


 


The Facility Agent
shall, within 10 Business Days of receiving a Transfer Deed or a notice
relating to an assignment pursuant to Clause 37.4 (Assignments)
or a notice from a Lender or the giving by the Facility Agent of its consent,
in each case, relating to a change in such Lender’s Facility Office, notify the
US Paying Agent and the Borrowers of any such assignment, transfer or change in
Facility Office, as the case may be.


 


38.          COSTS AND EXPENSES


 


38.1        Transaction Costs


 


Each Borrower
shall, from time to time no later than 10 Business Days after demand from the
Facility Agent (unless the relevant cost or expense is being queried by a
Borrower in good faith), reimburse the Facility Agent, the Security Trustee and
each of the Arrangers for all reasonable out-of-pocket costs and expenses
(including reasonable legal fees and disbursements of legal counsel, any value
added tax thereon and all travel and other reasonable out-of-pocket expenses)
incurred by them in connection with the negotiation, preparation, execution,
perfection, printing and distribution of the Finance Documents and the
completion of the transactions therein contemplated and the syndication of the
Facilities prior to the Syndication Date (including publicity expenses) up to
the levels agreed with the Company.


 


178

















 


38.2        Preservation and Enforcement Costs


 


Each Borrower
shall, from time to time on demand of the Facility Agent, reimburse each
Finance Party for all third party costs and expenses (including legal fees and
any value added tax thereon) incurred in or in connection with the preservation
and/or enforcement of any of the rights of such Finance Party under the Finance
Documents provided that any such costs and expenses incurred in connection with
the preservation of such rights are reasonable.


 


38.3        Stamp Taxes


 


Each Borrower shall
pay all stamp, registration, documentary and other taxes (including any penalties,
additions, fines, surcharges or interest relating thereto) to which any of the
Finance Documents or any judgment given in connection therewith is or at any
time may be subject and shall with effect from the Merger Closing Date and
from time to time thereafter within 10 Business Days of demand from the
Facility Agent, indemnify the Finance Parties against any liabilities, costs,
claims and expenses resulting from any failure to pay or any delay in paying
those taxes. The Facility Agent shall be entitled (but not obliged) to pay
those taxes (whether or not they are its primary responsibility) and to the
extent that it does so claim under this Clause 38.3.


 


38.4        Amendments, Consents and Waivers


 


If an Obligor
requests any amendment, consent or waiver in accordance with Clause 43 (Amendments), the relevant Obligor shall, on demand of the
Facility Agent, reimburse the Finance Parties for all third party costs and
expenses (including legal fees) incurred by any of the Finance Parties in
responding to or complying with such request.


 


38.5        Lenders’ Indemnity


 


If any Obligor
fails to perform any of its obligations under this Clause 38, each Lender
shall indemnify and hold harmless each of the Agents, the Arrangers and/or the
Security Trustee from and against its Proportion (as determined at all times
for these purposes in accordance with paragraph (c) of the definition of “Proportion”)
of any loss incurred by any of them as a result of such failure and the
relevant Obligor shall forthwith reimburse each Lender for any payment made by
it pursuant to this Clause.


 


38.6        Value Added Tax


 


(a)           All amounts expressed to be payable under
any Finance Document by any Obligor to a Finance Party shall be exclusive of
any VAT. If VAT is chargeable on any supply made by a Finance Party to any
Obligor under any Finance Document (whether that supply is taxable pursuant to
the exercise of an option or otherwise), the relevant Finance Party shall
provide a VAT invoice to the Obligor and that Obligor shall pay to that Finance
Party (in addition to and at the same time as paying that consideration) the
VAT as further consideration.


 


(b)           No payment or other consideration to be
made or furnished to any Obligor pursuant to or in connection with any Finance
Document may be increased or added to by reference to (or as a result of
any increase in the rate of) any VAT which shall be or may become
chargeable in respect of any taxable supply.


 


(c)           Where a Finance Document requires any party
to reimburse a Finance Party for any costs or expenses, that party shall also
pay any amount of those costs or expenses incurred referable to VAT chargeable
thereon.


 


179

















 


39.          REMEDIES AND WAIVERS


 


No failure to
exercise, nor any delay in exercising, on the part of the Finance Parties
or any of them, any right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other right
or remedy. The rights and remedies provided in this Agreement are cumulative
and not exclusive of any rights or remedies provided by Law.


 


40.          NOTICES AND DELIVERY OF
INFORMATION


 


40.1        Writing


 


Each communication
to be made under this Agreement shall be made in writing and, unless otherwise
stated, shall be made by fax, telex or letter.


 


40.2        Giving of Notice


 


Any communication
or document to be made or delivered by one person to another pursuant to this
Agreement shall in the case of any person other than a Lender (unless that
other person has by 10 Business Days’ written notice to the Agents
specified another address) be made or delivered to that other person at the
address identified with its signature below or, in the case of a Lender, at the
address from time to time designated by it to the Agents for the purpose of
this Agreement (or, in the case of a Transferee at the end of the Transfer Deed
to which it is a party as Transferee) and shall be deemed to have been made or
delivered when despatched (in the case of any communication made by fax) or (in
the case of any communication made by letter) when left at the address or (as
the case may be) 5 Business Days after being deposited in the post postage
prepaid in an envelope addressed to it at that address provided that any
communication or document to be made or delivered to the Agents shall be
effective only when received by the Agents and then only if the same is
expressly marked for the attention of the department or officer identified with
the Agents’ signature below (or such other department or officer as the
relevant Agent shall from time to time specify by not less than 10 Business
Days’ prior written notice to the Company for this purpose).


 


40.3        Use of Websites/E-mail


 


(a)           An Obligor may (and upon request by
any of the Agents, shall) satisfy its obligations under this Agreement to
deliver any information in relation to those Lenders (the “Website Lenders”) who have not objected to
the delivery of information electronically by posting this information onto an
electronic website designated by the Company and the Facility Agent (the “Designated Website”) or by e-mailing such
information to the Agents, if:


 


(i)            the Agents expressly agree that they will
accept communication and delivery of any documents required to be delivered
pursuant to this Agreement by this method;


 


(ii)           in the case of posting to the Designated
Website, the Company and the Agents are aware of the address of, and any
relevant password specifications for, the Designated Website; and


 


(iii)         the information is in a format previously
agreed between the Company and each of the Agents.


 


(b)           If any Lender (a “Paper Form Lender”) objects to the delivery of
information electronically then the Agents shall notify the Company accordingly
and the Company shall supply the information to the Agents (in sufficient
copies for each Paper Form Lender) in paper form.


 


180

















 


(c)           The Facility Agent shall supply each
Website Lender with the address of, and any relevant password specifications
for, the Designated Website following designation of that website by the
Company and the Facility Agent.


 


(d)           Any Website Lender may request,
through the Facility Agent, one paper copy of any information required to be provided
under this Agreement which is posted onto the Designated Website. The Company
shall comply with any such request within 10 Business Days.


 


(e)           Subject to the other provisions of this
Clause 40.3, any Obligor may discharge its obligation to supply more than
one copy of a document under this Agreement by posting one copy of such
document to the Designated Website or e-mailing one copy of such document to
the Facility Agent.


 


(f)            For the purposes of paragraph (a) above,
the Agents hereby expressly agree that:


 


(i)            they will accept delivery of documents
required to be delivered under Clause 22 (Financial
Information) by the posting of such documents to the Designated
Website or by email delivery to the Agents; and 


 


(ii)           they have agreed to the format of the
information required to be delivered under Clause 22 (Financial Information).


 


40.4        Electronic Communication


 


(a)           Any communication to be made between the
Agents and any Lender under or in connection with the Finance Documents may be
made by electronic mail or other electronic means, if the relevant Agent and
the relevant Lender:


 


(i)            agree that, unless and until notified to
the contrary, this is to be an accepted form of communication;


 


(ii)           notify each other in writing of their
electronic mail address and/or any other information required to enable the
sending and receipt of information by that means; and


 


(iii)         notify each other of any change to their
address or any other such information supplied by them.


 


(b)           Any electronic communication made between
the Agents and a Lender will be effective only when actually received in
readable form and in the case of any electronic communication made by a
Lender to an Agent only if it is addressed in such a manner as the Facility
Agent shall specify for this purpose.


 


40.5        Certificates of Officers


 


All certificates of
officers of any company hereunder may be given on behalf of the relevant
company and in no event shall personal liability attach to such an officer.


 


40.6        Patriot Act


 


Each Lender subject
to the USA Patriot Act (Title 111 of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”) hereby notifies the Ultimate
Parent and the Company that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Ultimate
Parent, the Parent, the Company and the other Obligors and other information
that will allow 


 


181

















 


such Lender to
identify Parent, the Company and the other Obligors in accordance with the Act.


 


41.          ENGLISH LANGUAGE


 


Each communication
and document made or delivered by one party to another pursuant to this
Agreement shall be in the English language or accompanied by a translation of
it into English certified (by an officer of the person making or delivering the
same) as being a true and accurate translation of it.


 


42.          PARTIAL INVALIDITY


 


If, at any time,
any provision of this Agreement is or becomes illegal, invalid or unenforceable
in any respect under the Law of any jurisdiction, such illegality, invalidity
or unenforceability shall not affect:


 


(a)           the legality, validity or enforceability of
the remaining provisions of this Agreement; or


 


(b)           the legality, validity or enforceability of
such provision under the Law of any other jurisdiction.


 


43.          AMENDMENTS


 


43.1        Amendments Generally


 


Except as otherwise
provided in this Agreement, the Facility Agent, if it has the prior written
consent of an Instructing Group, and the Obligors affected thereby, may from
time to time agree in writing to amend any Finance Document or to consent to or
waive, prospectively or retrospectively, any of the requirements of any Finance
Document and any amendments, consents or waivers so agreed shall be binding on
all the Finance Parties and the Obligors. For the avoidance of doubt, any
amendments relating to this Agreement shall only be made in accordance with the
provisions of this Agreement and any amendments relating to a Hedging Agreement
shall only be made in accordance with the provisions of such Hedging Agreement,
in each case notwithstanding any other provisions of the Finance Documents.


 


43.2        Amendments relating to Baseball


 


Except as provided in Clause 43.4 (Consents), 43.5 (Technical Amendments),
43.6 (Guarantees and Security) and 43.7 (Release of Guarantees and Security), the Facility Agent, if
it has the prior written consent of a Baseball Instructing Group (for this
purpose, within the meaning of paragraph (a) of that definition) and the
Obligors affected thereby, may agree in writing to amend or waive, or to
consent to, any of the following provisions with respect to the A1 Facility and
B1 Facility:


 


(a)           the definitions of “Baseball Acquisition”, “Baseball
Bidcos”, “Baseball Cash Bidco”, “Baseball Certain Funds Period”, “Baseball
Clean-Up Period”, “Baseball Drawstop Default”, “Baseball Effective Date”, “Baseball
Group”, “Baseball Implementation Agreement”, “Baseball Press Release”, “Baseball
Resolutions”, “Baseball Scheme”, “Baseball Scheme Circular”, “Baseball Scheme
Document”, “Baseball Shares”, “Baseball Stock Bidco” and “Total Baseball Debt”.



 


(b)           paragraphs (b) and (c) of Clause
2.1 (The Facilities);


 


(c)           paragraph (b) of Clause 2.3 (Purpose);


 


(d)           Clause 3.2 (Baseball
Conditions Precedent);


 


182

















 


(e)           Clause 3.4 (Baseball
Conditions Subsequent);


 


(f)            Clause 3.6 (Baseball
Certain Funds Period);


 


(g)           Clause 27.20 (Baseball
Clean-Up Period); 


 


(h)           any matter listed in Part 2 of Schedule 4
(Conditions Precedent to First Baseball Utilisation)
and Part 7 of Schedule 4 (Baseball Conditions
Subsequent); and 


 


(i)            any other provision of this Agreement where
the prior consent of a Baseball Instructing Group is expressly required,


 


in each case, except to the extent that such
amendment, waiver or consent relates to Security. Any such amendments, consents
or waivers so agreed shall be binding on all the Finance Parties and the
Obligors.


 


43.3        Amendments relating to Alternative Baseball Financing


 


The Facility Agent, if it has the prior written
consent of all of the Baseball Lenders (for this purpose, falling within the
meaning of paragraph (b) of that definition) and the Obligors affected
thereby, may agree in writing to any change to this Agreement, for the
purposes of giving effect to a commitment provided by such Baseball Lenders
relating to any Alternative Baseball Financing and the new facilities to be
provided thereunder and the associated Alternative Baseball Acquisition, which
amends or replaces or is intended to amend or replace the provisions set out
in:


 


(a)           paragraphs (b) and (c) of Clause
2.1 (The Facilities);


 


(b)           paragraph (b) of Clause 2.3 (Purpose);


 


(c)           Clause 3.2 (Baseball
Conditions Precedent);


 


(d)           Clause 3.4 (Baseball
Conditions Subsequent);


 


(e)           Clause 3.6 (Baseball
Certain Funds Period);


 


(f)            Clause 27.20 (Baseball
Clean-Up Period); 


 


(g)           Clause 9 (Repayment of
Term Facility Outstandings) to the extent that such changes amend or
replace provisions relating to the A1 Facility and B1 Facility, except
where such changes provide for a final maturity date in respect of the
Alternative Baseball Facility which is earlier than the Final Maturity Date in
respect of the A Facility or in the case of amortising debt, where the
average life of such Alternative Bridge Facility would be shorter than the
average life of the A Facility;


 


(h)           Clause 11 (Voluntary
Prepayment) and Clause 12 (Mandatory Prepayment and
Cancellation) to the extent that such changes amend or replace
provisions relating to the A1 Facility and B1 Facility, and provided that
such changes do not have the effect of altering the timing or amount of
payments payable to any Lender in respect of the A Facility or Revolving Credit
Facility;


 


(i)            Clause 14 (Interest as
Term Facility Advances) to the extent that such changes amend or
replace provisions relating to the A1 Facility or B1 Facility;


 


(j)            Clause 17.1 (Tax Gross Up)
to the extent that such changes relate to the Relevant Tax Jurisdiction of the
relevant borrower of the Alternative Baseball Financing;


 


183

















 


(k)           Clause 21 (Representations
and Warranties) in relation to the representations and warranties to
be given to the Baseball Lenders (for this purpose, falling within the meaning
of paragraph (b) of such definition);


 


(l)            Clause 37 (Assignment
or Transfers by Lenders) to the extent that such changes relate to
the assignment or transfer of any commitments or outstandings under the
Alternative Baseball Financing;


 


(m)          Clause 43.2 (Amendments
relating to Baseball);


 


(n)           Part 1 of Schedule 1 (Lenders and Commitments) and Part 2 of Schedule 1
(Lenders Tax Status) to the extent such
changes amend or replace the then existing Lenders to include the Baseball
Lenders;


 


(o)           Part 2 of Schedule 4 (Conditions Precedent to First Baseball Utilisation) and Part 7
of Schedule 4 (Baseball Conditions
Subsequent) for the purposes of amending and replacing the list of
required documentary conditions precedent to the Alternative Baseball
Financing; 


 


(p)           any of the definitions contained in Clause
1.1 (Definitions) for the purposes of
removing all references to and all derivatives of the A1 Facility and the
B1 Facility and incorporating such definitions as may be necessary
for the purposes of giving effect to the changes described in this Clause 43.3;
and


 


(q)           such other amendments to or replacements of
the provisions of this Agreement, which are of a technical or mechanical nature
provided that such amendments or replacement do not prejudice the interests of
the Lenders under the A Facility or Revolving Credit Facility,


 


in each case, except to the extent that such
amendment, waiver or consent relates to Security. Any such amendments, consents
or waivers so agreed shall be binding on all the Finance Parties and the
Obligors.


 


43.4        Consents


 


An amendment,
consent or waiver relating to the following matters may be made with the
prior written consent of each Lender affected thereby:


 


(a)           any increase in the principal amount of any
Commitment of such Lender;


 


(b)           a reduction in the proportion of any amount
received or recovered (whether by way of set-off, combination of accounts or
otherwise) in respect of any amount due from the Parent or any Obligor under
this Agreement to which such Lender is entitled;


 


(c)           a decrease in any Applicable Margin for, or
the principal amount of, any Advance, any Documentary Credit or any interest
payment, fees or other amounts due under this Agreement to such Lender from the
Parent or any Obligor or any other party to this Agreement;


 


(d)           any change in the currency of account
(other than a change resulting from the United Kingdom becoming a Participating
Member State);


 


(e)           unless otherwise specified the deferral of
the date for payment of any principal, interest, fee or any other amount due
under this Agreement to such Lender from the Parent or any Obligor or any other
party to this Agreement;


 


(f)            the deferral of any Termination Date;


 


184

















 


(g)           any reduction to the percentage set forth
in the definition of Instructing Group or Baseball Instructing Group; or


 


(h)           a change to any provision which
contemplates the need for the consent or approval of all the Lenders.


 


43.5        Technical Amendments


 


Notwithstanding any other provision of this Clause 43,
the Facility Agent may at any time without the consent or sanctions of the
Lenders, concur with the Company in making any modifications to any Finance
Document, which in the opinion of the Facility Agent would be proper to make
provided that the Facility Agent is of the opinion that such modification would
not be prejudicial to the position of any Lender and in the opinion of the
Facility Agent such modification is of a formal, minor or technical nature or
is to correct a manifest error. Any such modification shall be made on such
terms as the Facility Agent may determine, shall be binding upon the
Lenders, and shall be notified by the Company to the Lenders as soon as
practicable thereafter.


 


43.6        Guarantees and Security


 


A waiver of
issuance or the release of any Guarantor from any of its obligations under
Clause 29 (Guarantee and Indemnity) or a release of
any Security under the Security Documents, in each case, other than in
accordance with the terms of any Finance Document shall require the prior
written consent of affected Lenders whose Available Commitments plus Outstandings
amount in aggregate to more than 90 per cent. of the Available Facilities plus
aggregate Outstandings.


 


43.7        Release of Guarantees and Security


 


(a)           Subject to paragraph (b) below, at the
time of completion of any disposal by the Parent or any Obligor of any shares,
assets or revenues the Security Trustee shall (and it is hereby authorised by
the other Finance Parties to) at the request of and cost of the relevant
Obligor, execute such documents as may be required to:


 


(i)            release those shares, assets or revenues
from Security constituted by any relevant Security Document or certify that any
floating charge constituted by any relevant Security Documents over such
assets, revenues or rights has not crystallised; and 


 


(ii)           release any person which as a result of
that disposal, ceases to be the Parent or any Obligor, from any guarantee,
indemnity or Security Document to which it is a party and its other obligations
under any other Finance Document.


 


(b)           The Security Trustee shall only be required
under paragraph (a) above to grant the release of any Security or to
deliver a certificate of non-crystallisation on account of a disposal as
described in that paragraph described in that paragraph if: 


 


(i)            the disposal is permitted under Clause 25.6
(Disposals) or otherwise with the consent
of an Instructing Group;


 


(ii)           (to the extent that any proceeds of that
disposal are to be applied in repayment of the Facilities) the Facility Agent
has received (or is satisfied, acting reasonably, that it will receive
immediately following the disposal) the appropriate amount of those proceeds;
and


 


(iii)         (to the extent that the disposal is to be
in exchange for replacement assets) the Security Trustee has either received
(or is satisfied, acting reasonably, that it will receive immediately following
the disposal) one or more duly executed Security 


 


185

















 


Documents granting Security over those replacement
assets or is satisfied, acting reasonably, that the replacement assets will be
subject to Security pursuant to any existing Security Documents.


 


(c)           If at any time, a Compliance Certificate
delivered pursuant to Clause 22.5(a) (Compliance Certificates)
shows that the Obligors under this Agreement at the relevant time represent a
percentage which is greater than that required to satisfy the 80% Security Test
and the Company is able, at such time, to demonstrate to the satisfaction of
the Facility Agent (acting reasonably) that upon the release of one or more
specified Obligors from its obligations under this Agreement the 80% Security
Test would continue to be satisfied, the Security Trustee shall (and it is
hereby authorised by the other Finance Parties to) at the request and cost of
the Company, execute such documents as may be required to release such
specified Obligors from any guarantees, indemnities and Security Documents to
which it is a party and to release it from its other obligations under any
Finance Document.


 


(d)           Notwithstanding the foregoing provisions of
this Clause 43.7, in the event that the Company elects to raise or incur any
Stand Alone Baseball Financing in accordance with the provisions of this
Agreement, and immediately prior to such raising or incurrence, any member of
the Baseball Group has granted any guarantee and/or security in respect of the
Facilities, such member of the Baseball Group shall be released from any such
guarantee and/or security immediately prior to such raising or incurrence, or
in the event that the proceeds of such Stand Alone Baseball Financing are being
used to prepay A1 Facility Outstandings and B1 Facility Outstandings in
accordance with Clause 11.1 (Voluntary Prepayment),
simultaneously with such prepayment.


 


(e)           In the event that, pursuant to the
provisions of Clause 24.21 (Steps Paper),
the Ultimate Parent elects to implement each of Steps 3 to 8 (including, at the
Company’s option, the alternative Step 6x described therein) set out on the page headed
“Post-Combination Restructuring - First Alternative
(Structure 1)” of the Steps Paper, culminating in the structure set
out on the page headed “First Alternative
(Structure 1) – Final Structure (assumes Step 6)” or the structure
set out on the page headed “Post-Combination
Restructuring – Alternative Step 6x (Structure 1)”, the Facility
Agent and the Security Trustee are hereby authorised to irrevocably and
unconditionally release Telewest UK Limited from all of its obligations under
the Finance Documents, including without limitation, its obligations under
Clause 29 (Guarantee and Indemnity) and any
Security Documents entered into by it and shall, upon request by the Company,
execute all documents and instruments required to give effect to such release. 


 


43.8        Amendments affecting the Facility Agent


 


Notwithstanding any
other provision of this Agreement, the Facility Agent shall not be obliged to
agree to any amendment, consent  or
waiver if the same would:


 


(a)           amend or waive any provision of Clauses 30
(Agents), Clause 38 (Costs and
Expenses) or this Clause 43; or


 


(b)           otherwise amend or waive any of the
Facility Agent’s rights under this Agreement or subject the Facility Agent to
any additional obligations under this Agreement.


 


43.9        Calculation of Consent


 


Where a request for
a waiver of, or an amendment to, any provision of any Finance Document has been
sent by the Facility Agent to the Lenders at the request of an Obligor, each
Lender that does not respond to such request for waiver or amendment within 30
days after receipt by it of such request (or within such other period as the
Facility Agent and the Company shall specify), shall be excluded from 


 


186

















 


the calculation in
determining whether the requisite level of consent to such waiver or amendment
was granted.


 


43.10      Effect of Baseball Acquisition


 


It is hereby agreed that upon closing of the Baseball
Acquisition (other than where the Baseball Acquisition is financed or
refinanced through a Stand Alone Baseball Financing) or the Alternative
Baseball Acquisition, each of the thresholds or baskets set out in the
following provisions of this Agreement shall be deemed to be increased to the
amounts as set out below, in each case, with immediate effect and without
further consent or notice to the Finance Parties or any other person:


 


(a)           the threshold contained in paragraph (a)(i) of
Clause 12.2 (Repayment from Net Proceeds)
shall be increased from £30 million to £35 million;


 


(b)           the general basket contained in paragraph
(o) of Clause 25.2 (Negative Pledge)
shall be increased from £300 million to £330 million and the sub-basket
relating thereto shall be increased from £250 million to £275 million;


 


(c)           the general basket contained in paragraph
(s) of Clause 25.3 (Loans and Guarantees)
shall be increased from £75 million to £85 million;


 


(d)           the basket contained in paragraph (g)(ii) of
Clause 25.4 (Financial Indebtedness) shall be
increased from £75 million to £85 million;


 


(e)           the basket contained in paragraph (k) of
Clause 25.4 (Financial Indebtedness) shall be
increased from £150 million to £165 million;


 


(f)            the general basket contained in paragraph
(n) of Clause 25.4 (Financial Indebtedness)
shall be increased from £300 million to £330 million; and


 


(g)           the basket contained in paragraph (i) of
Clause 25.6 (Disposals) shall be increased
from £300 million to £330 million.


 


43.11      Division of Tranches


 


The Facility Agent,
at the request of the Bookrunners, may at any time after Successful
Syndication, divide the B1 Facility into such number of tranches as they may deem
necessary to reflect the relevant currencies in which the B1 Facility is drawn,
and may make such amendments to this Agreement as are necessary to give
effect to such division, without the prior consent of any other party.


 


44.          AMENDMENT UPON STRUCTURE NOTICE


 


44.1        Delivery of Structure Notice


 


Simultaneously with
delivery of the Structure Notice to the Bookrunners in accordance with the
terms of the Commitment Letter, the Company shall deliver a copy of that
Structure Notice to the Facility Agent. Promptly upon receipt of the Structure
Notice, the Facility Agent shall notify each of the other Finance Parties of
such receipt together with details of the Structuring Date. Once given, the
Structure Notice shall be irrevocable. 


 


44.2        Amendment and Restatement


 


(a)           This Agreement shall be amended and
restated on the date that the Company delivers the Structure Notice to the
Facility Agent in accordance with Clause 44.1 (Delivery of
Structure Notice) above, upon confirmation by the Company to the
Facility Agent that each of the steps


 


187

















 


required to complete the structure set out on the page headed
“Second Alternative (Structure 2) – Final Structure))  of the Steps Paper, whereupon this Agreement
shall be immediately replaced by the Structure 2 Senior Facilities Agreement. 


 


(b)           By its execution of this Agreement, any
Accession Notice or Transfer Deed, each of the parties to this Agreement
(including the B Facility Lenders) hereby acknowledge and agree that no further
action shall be required for the purposes of giving effect (i) to the
amendment and restatement of this Agreement in the manner provided in paragraph
(a) above, or (ii) to the provisions of the Structure 2 Senior
Facilities Agreement which shall be legally binding and in full force and
effect as against each of the parties to this Agreement immediately prior to
its amendment and restatement.


 


(c)           The provisions of this Clause 44.2 shall be
without prejudice to the rights, obligations, representations, covenants and
other provisions of any other Finance Document existing as of the amendment and
restatement of this Agreement. Each such Finance Document and the rights and
obligations of each of the parties thereto (including without limitation the
guarantees provided by any Guarantor pursuant to Clause 29 (Guarantee and Indemnity)) shall remain in full force and
effect as against each of the parties thereto notwithstanding such amendment
and restatement and any references contained in such Finance Documents to this
Agreement shall thereafter be deemed to be references to the Structure 2 Senior
Facilities Agreement.


 


44.3        B Facility Lenders


 


Each of the B
Facility Lenders are a party hereto solely for the purposes of agreeing to the
provisions of this Clause 44 (Amendment Upon Structure
Notice) and otherwise shall incur no obligations or duties hereunder
until the Structure 2 Senior Facilities Agreement has become effective pursuant
to the terms hereof.


 


45.          THIRD PARTY RIGHTS


 


(a)           A person which is not a party to this
Agreement (a “third party”) shall
have no right to enforce any of its provisions except that: 


 


(i)            a third party shall have those rights it
would have had if the Contracts (Rights of Third Parties) Act 1999 had not come
into effect; and


 


(ii)           each of Clause 5.9 (Exclusion of
Liability), Clause 17.3 (Tax Indemnity),
Clause 18 (Increased Costs) and Clause 30.10 (Exclusion of Liability) shall be enforceable by any third
party referred to in such clause as if such third party were a party to this
Agreement.


 


(b)           The parties to this Agreement may without
the consent of any third party vary or rescind this Agreement.


 


46.          COUNTERPARTS


 


This Agreement may be
executed in any number of counterparts and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.


 


47.          GOVERNING LAW


 


47.1        Governing Law of Agreement


 


This Agreement shall be governed by, and construed in
accordance with, English Law.


 


188

















 


47.2        Governing Law of Claims Against the US Borrower


 


Notwithstanding the
provisions of Clause 47.1 (Governing Law of
Agreement), any proceedings in relation to a debt claim against the
US Borrower shall be governed by the internal laws of the state of New York,
provided always that no other Obligor may rely upon, or otherwise
challenge any right of any Finance Party on the basis of this Clause 47.2.


 


48.          JURISDICTION


 


48.1        Courts


 


(a)           The US Borrower and each of the other
parties to this Agreement irrevocably agrees for the benefit of the Finance
Parties that the courts of the State of New York and/or the federal courts of
the United States of America sitting in the State of New York in diversity
jurisdiction shall have exclusive jurisdiction to hear and determine any suit,
action or proceedings, and to settle any disputes which may arise out of
or in connection with the rights or obligations of the US Borrower under the
Finance Documents and, for such purposes, irrevocably submits to the
jurisdiction of such courts.


 


(b)           Each of the parties to this Agreement
irrevocably agrees for the benefit of each of the Finance Parties that, except
as set forth in paragraph (a) above, the courts of England shall have
exclusive jurisdiction to hear and determine any suit, action or proceedings,
and to settle any disputes, which may arise out of or in connection with
this Agreement (respectively “Proceedings”
and “Disputes”) and, for such
purposes, irrevocably submits to the jurisdiction of such courts.


 


48.2        Waiver


 


Each of the
Obligors other than the US Borrower irrevocably waives any objection which it
might now or hereafter have to Proceedings being brought or Disputes settled in
the courts of England and agrees not to claim that any such court is an
inconvenient or inappropriate forum. The US Borrower and each of the Finance
Parties irrevocably waives any objection which it might now or hereafter have
to Proceedings being brought by or against the US Borrower or Disputes with the
US Borrower being settled in the courts of the State of New York.


 


48.3        Service of Process


 


Each of the
Obligors (other than the US Borrower) which is not incorporated in England
agrees that the process by which any Proceedings are begun may be served
on it by being delivered in connection with any Proceedings in England, to the
Company at its registered office for the time being and the Company, by its
signature to this Agreement, accepts its appointment as such in respect of each
such Obligor. If the appointment of the person mentioned in this Clause ceases
to be effective in respect of any of the Obligors the relevant Obligor shall
immediately appoint a further person in England to accept service of process on
its behalf in England and, failing such appointment within 15 days, the
Facility Agent shall be entitled to appoint such person by notice to the
relevant Obligor. Nothing contained in this Agreement shall affect the right to
serve process in any other manner permitted by Law.


 


48.4        Proceedings in Other Jurisdictions


 


Nothing in Clause
48.1(b) (Courts) shall (and shall not be
construed so as to) limit the right of the Finance Parties or any of them to
take Proceedings against any of the Obligors other than the US Borrower in any
other court of competent jurisdiction nor shall the taking of Proceedings in
any one or more jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted by
applicable Law.


 


189

















 


48.5        General Consent


 


Each of the
Obligors consents generally in respect of any Proceedings to the giving of any
relief or the issue of any process in connection with such Proceedings
including the making, enforcement or execution against any property whatsoever
(irrespective of its use or intended use) of any order or judgment which may be
made or given in such Proceedings.


 


48.6        Waiver of Immunity


 


To the extent that
any Obligor may in any jurisdiction claim for itself or its assets or
revenues immunity from suit, execution, attachment (whether in aid of execution,
before judgment or otherwise) or other legal process and to the extent that in
any such jurisdiction there may be attributed to itself, its assets or
revenues such immunity (whether or not claimed), such Obligor irrevocably
agrees not to claim, and irrevocably waives, such immunity to the full extent
permitted by the laws of such jurisdiction.


 


This
Agreement has been entered into on the date stated at the beginning of this
Agreement.


 


190

















 


SIGNATORIES


 


THE
ULTIMATE PARENT


 


TELEWEST
GLOBAL, INC.


 


By:


 


Address:                        909
Third Avenue

Suite 2863

New York

New York 10022

U.S.A.


 


Attn: Bryan Hall


 


with a copy to:              


 


and:                                Fried
Frank Harris Shriver & Jacobson LLP

99 City Road

London EC1Y 1AX


 


Attn: Tim Peterson


 


 


THE
PARENT


 


NTL
CABLE PLC


 


By:


 


Address:                        Bartley
Wood Business Park

Bartley Way

Hook

Hampshire  RG27 9UP


 


Attn:                               General
Counsel


 


with a copy to:


 


and:                                Fried
Frank Harris Shriver & Jacobson LLP

99 City Road

London EC1Y 1AX


 


Attn: Tim Peterson


 


191

















 


THE
UK BORROWERS


 


NTL
INVESTMENT HOLDINGS LIMITED


 


By:


 


Address:                        Bartley
Wood Business Park

Bartley Way

Hook

Hampshire  RG27 9UP


 


Attn:                               General
Counsel


 


with a copy to:              Fried Frank Harris
Shriver & Jacobson LLP

99 City Road

London EC1Y 1AX


 


Attn: Tim Peterson


 


 


TELEWEST
COMMUNICATIONS NETWORKS LIMITED


 


By:


 


Address:                        Export House

Cawsey Way

Woking

Surrey GU21 6QX


 


 


Attn:                               Group Treasurer 


 


with a copy to:              Fried Frank Harris Shriver & Jacobson
(London) LLP

99 City Road

London EC1Y 1AX


 


Attn:
Tim Peterson


 


192

















 


NTLIH
SUB LIMITED


 


By:


 


Address:                        NTL Group Limited

NTL House

Bartley Wood Business Park

Hook

Hampshire RG27 9UP


 


 


Attn:                               General Counsel


 


with a copy to:              Fried Frank Harris Shriver & Jacobson LLP

99 City Road

London EC1Y 1AX


 


Attn:
Tim Peterson


 


 


THE US BORROWER


 


NTL
DOVER LLC


 


By:


 


Address:                        NTL Incorporated

909 Third Avenue

Suite 2863

New York, NY 10022

United States


 


 


Attn:                               General Counsel


 


with a copy to:              Fried Frank Harris Shriver & Jacobson LLP

99 City Road

London EC1Y 1AX


 


Attn:
Tim Peterson


 


193

















 


THE
BOOKRUNNERS


 


 


DEUTSCHE
BANK AG, LONDON BRANCH


 


By:


 


 


Address:                Winchester House

1 Great Winchester Street

London

EC2N 2DB


 


Attention:              Jonathan
Bowers




 


Fax:                         +44
(20) 754 74757


 


 


J.P.
MORGAN PLC


 


By:


 


 


Address:                125 London Wall

London

EC2Y 5AJ


 


Attention:              Paul
Davis


 


Fax:                         +44
(20) 7777 3840


 


194

















 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:


 


 


Address:                135 Bishopsgate

London EC2M 3UR


 


Attention:              Mike Cunningham


 


Fax:                         +44 (20) 7085 8549


 


 


GOLDMAN
SACHS INTERNATIONAL


 


By:


 


Address:                Peterborough Court

133 Fleet Street

London EC4A 2BB


 


Attention:              Alison Howe


 


Fax:                         +44 (20) 774
4477


 


195

















 


THE
MANDATED LEAD ARRANGERS


 


DEUTSCHE
BANK AG, LONDON BRANCH


 


By: 


 


 


Address:                Winchester House

1 Great Winchester Street

London

EC2N  2DB


 


Attention:              Jonathan Bowers


 


Fax:                         +44 (20) 7547 4757


 


 


J.P.
MORGAN PLC


 


By: 


 


 


Address:                125 London Wall

London

EC2Y 5AJ


 


Attention:              Paul Davis


 


Fax:                         +44 (20) 7777 3840


 


196

















 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:


 


 


Address:                135 Bishopsgate

London EC2M 3UR


 


Attention:              Mike Cunningham


 


Fax:                         +44 (20) 7085 8549


 


 


GOLDMAN
SACHS INTERNATIONAL


 


By: 


 


 


Address:                Peterborough Court

133 Fleet Street

London EC4A  2BB


 


Attention:              Alison Howe


 


Fax:                         +44 (20) 7774 4477


 


197

















 


THE
FACILITY AGENT


 


DEUTSCHE
BANK AG, LONDON BRANCH


 


By: 


 


 


Address:                Winchester House

1 Great Winchester Street

London

EC2N 2DB


 


Attention:              Elizabeth Macodie and Nicola Dawes


 


Fax:                         +44 (20) 7547 6419


 


 


THE
SECURITY TRUSTEE


 


DEUTSCHE
BANK AG, LONDON BRANCH


 


By: 


 


 


Address:                Winchester
House

1 Great Winchester Street

London

EC2N 2DB


 


Attention:              Elizabeth Macodie and Nicola Dawes


 


Fax:                         +44 (20) 7547 6419


 


198
















 


THE
US PAYING AGENT 


 


DEUTSCHE
BANK AG, NEW YORK BRANCH


 


By: 


 


 


Address:                90 Hudson Street

Jersey City

New Jersey 07302


 


Attention:              NY Loan Operations


 


Fax:                         (001) 201 593 2308


 


 


THE
ADMINISTRATIVE AGENT


 


GE
CORPORATE BANKING EUROPE SAS


 


By: 


 


 


Address:                18 Rue Hoche,
Paris La Defense

Cedex 92988, Paris

France


 


Attention:              Alexis D’Almeida



 


Fax:                         + 44 (20) 7302
6836


 


199

















 


THE LENDERS


 


DEUTSCHE
BANK AG, LONDON BRANCH


 


By: 


 


 


Address:                Winchester House

1 Great Winchester Street

London

EC2N 2DB


 


Attention:              Jonathan Bowers


 


Fax:                         +44 (20) 7547 4757


 


 


JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION


 


By:


 


 


Address:                125 London Wall

London

EC2Y 5AJ


 


Attention:              Frances Goodchild


 


Fax:                         +44 (20) 7777 1493


 


200

















 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:


 


 


Address:                135 Bishopsgate

London EC2M 3UR


 


Attention:              Mike Cunningham


 


Fax:                         +44 (20) 8549 7085


 


 


GOLDMAN
SACHS INTERNATIONAL BANK


 


By:


 


Address:                Peterborough Court

133 Fleet Street

London EC4A 2BB


 


Attention:              Alison Howe


 


Fax:                         +44 (20) 7774 4477


 


 


GOLDMAN
SACHS CREDIT PARTNERS L.P.


 


By:


 


Address:                c/o Goldman Sachs
International


                                Peterborough Court

133 Fleet Street

London EC4A 2BB


 


Attention:              Alison Howe


 


Fax:                         +44 (20) 7774 4477


 


201

















 


THE B LENDERS


 


DEUTSCHE
BANK AG, LONDON BRANCH


 


By:


 


 


Address:                Winchester House

1 Great Winchester Street

London

EC2N 2DB


 


Attention:              Jonathan Bowers


 


Fax:                         +44 (20) 7547 4757


 


 


JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION


 


By:


 


 


Address:                125 London Wall

London

EC2Y 5AJ


 


Attention:              Frances Goodchild


 


Fax:                         +44 (20) 7777 1493


 


202

















 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:


 


 


Address:                135 Bishopsgate

London EC2M 3UR


 


Attention:              Mike Cunningham


 


Fax:                         +44 (20) 7085 8549


 


 


GOLDMAN
SACHS CREDIT PARTNERS L.P.


 


By:


 


Address:                c/o Peterborough
Court

133 Fleet Street

London EC4A 2BB


 


Attention:              Alison Howe


 


Fax:                         +44 (20) 7774 4477


 


203

















 


THE ORIGINAL L/C BANK


 


DEUTSCHE
BANK AG, LONDON BRANCH


 


By:


 


 


Address:                Winchester House

1 Great Winchester Street

London

EC2N 2DB


 


Attention:              Mark Dixon


 


Fax:                         +44 (20) 7545 4949


 


204

















 


ANNEX 1


 


AMENDED AND RESTATED AGREEMENT


 


in respect of a


 


£4,975,000,000 SENIOR FACILITIES
AGREEMENT


 


dated 3 March 2006


 


between


 


TELEWEST GLOBAL, INC.

(to be renamed NTL INCORPORATED)

as Ultimate Parent


 


NTL CABLE PLC

as Parent


 


NTL INVESTMENT HOLDINGS LIMITED


TELEWEST COMMUNICATIONS NETWORKS
LIMITED


NTLIH SUB LIMITED

as UK Borrowers


 


NTL DOVER LLC

as US Borrower


 


THE ORIGINAL GUARANTORS


 


DEUTSCHE BANK AG, LONDON BRANCH

J.P. MORGAN PLC

THE ROYAL BANK OF SCOTLAND PLC

GOLDMAN SACHS INTERNATIONAL

as Bookrunners and Mandated Lead Arrangers


 


DEUTSCHE BANK AG, LONDON BRANCH

as Facility Agent and Security Trustee


 


DEUTSCHE BANK AG, NEW YORK BRANCH

as US Paying Agent


 


GE CORPORATE BANKING EUROPE SAS

as Administrative Agent


 


THE LENDERS


 


and


 


DEUTSCHE BANK AG, LONDON BRANCH

as Original L/C Bank


 





 


5 Old Broad Street

London  EC2N 1DW


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
  DEFINITIONS AND INTERPRETATION

  	
  4

  
	
   

  	
   

  	
   

  
	
  2.

  	
  THE FACILITIES

  	
  56

  
	
   

  	
   

  	
   

  
	
  3.

  	
  CONDITIONS

  	
  58

  
	
   

  	
   

  	
   

  
	
  4.

  	
  UTILISATION

  	
  60

  
	
   

  	
   

  	
   

  
	
  5.

  	
  DOCUMENTARY CREDITS

  	
  62

  
	
   

  	
   

  	
   

  
	
  6.

  	
  ANCILLARY FACILITIES

  	
  66

  
	
   

  	
   

  	
   

  
	
  7.

  	
  OPTIONAL CURRENCIES

  	
  69

  
	
   

  	
   

  	
   

  
	
  8.

  	
  REPAYMENT OF REVOLVING FACILITY
  OUTSTANDINGS

  	
  70

  
	
   

  	
   

  	
   

  
	
  9.

  	
  REPAYMENT OF TERM FACILITY
  OUTSTANDINGS

  	
  70

  
	
   

  	
   

  	
   

  
	
  10.

  	
  CANCELLATION

  	
  71

  
	
   

  	
   

  	
   

  
	
  11.

  	
  VOLUNTARY PREPAYMENT

  	
  72

  
	
   

  	
   

  	
   

  
	
  12.

  	
  MANDATORY PREPAYMENT AND
  CANCELLATION

  	
  74

  
	
   

  	
   

  	
   

  
	
  13.

  	
  INTEREST ON REVOLVING FACILITY
  ADVANCES

  	
  80

  
	
   

  	
   

  	
   

  
	
  14.

  	
  INTEREST ON TERM FACILITY ADVANCES

  	
  82

  
	
   

  	
   

  	
   

  
	
  15.

  	
  MARKET DISRUPTION AND ALTERNATIVE
  INTEREST RATES

  	
  85

  
	
   

  	
   

  	
   

  
	
  16.

  	
  COMMISSIONS AND FEES

  	
  86

  
	
   

  	
   

  	
   

  
	
  17.

  	
  TAXES

  	
  87

  
	
   

  	
   

  	
   

  
	
  18.

  	
  INCREASED COSTS

  	
  93

  
	
   

  	
   

  	
   

  
	
  19.

  	
  ILLEGALITY

  	
  94

  
	
   

  	
   

  	
   

  
	
  20.

  	
  MITIGATION

  	
  95

  
	
   

  	
   

  	
   

  
	
  21.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  95

  
	
   

  	
   

  	
   

  
	
  22.

  	
  FINANCIAL INFORMATION

  	
  104

  
	
   

  	
   

  	
   

  
	
  23.

  	
  FINANCIAL CONDITION

  	
  110

  
	
   

  	
   

  	
   

  
	
  24.

  	
  POSITIVE UNDERTAKINGS

  	
  119

  
	
   

  	
   

  	
   

  
	
  25.

  	
  NEGATIVE UNDERTAKINGS

  	
  129

  
	
   

  	
   

  	
   

  
	
  26.

  	
  ACCEDING GROUP COMPANIES

  	
  151

  
	
   

  	
   

  	
   

  
	
  27.

  	
  EVENTS OF DEFAULT

  	
  153

  
	
   

  	
   

  	
   

  
	
  28.

  	
  DEFAULT INTEREST

  	
  158

  
	
   

  	
   

  	
   

  
	
  29.

  	
  GUARANTEE AND INDEMNITY

  	
  159

  
	
   

  	
   

  	
   

  
	
  30.

  	
  AGENTS

  	
  162

  
	
   

  	
   

  	
   

  
	
  31.

  	
  BORROWERS’ INDEMNITIES

  	
  169

  
	
   

  	
   

  	
   

  
	
  32.

  	
  CURRENCY OF ACCOUNT

  	
  169

  
	
   

  	
   

  	
   

  
	
  33.

  	
  PAYMENTS

  	
  170

  
	
   

  	
   

  	
   

  
	
  34.

  	
  SET-OFF

  	
  171

  



 


i

















 


	
  35.

  	
  SHARING AMONG THE FINANCE PARTIES

  	
  172

  
	
   

  	
   

  	
   

  
	
  36.

  	
  CALCULATIONS AND ACCOUNTS

  	
  173

  
	
   

  	
   

  	
   

  
	
  37.

  	
  ASSIGNMENTS AND TRANSFERS

  	
  174

  
	
   

  	
   

  	
   

  
	
  38.

  	
  COSTS AND EXPENSES

  	
  179

  
	
   

  	
   

  	
   

  
	
  39.

  	
  REMEDIES AND WAIVERS

  	
  180

  
	
   

  	
   

  	
   

  
	
  40.

  	
  NOTICES AND DELIVERY OF INFORMATION

  	
  180

  
	
   

  	
   

  	
   

  
	
  41.

  	
  ENGLISH LANGUAGE

  	
  182

  
	
   

  	
   

  	
   

  
	
  42.

  	
  PARTIAL INVALIDITY

  	
  182

  
	
   

  	
   

  	
   

  
	
  43.

  	
  AMENDMENTS

  	
  182

  
	
   

  	
   

  	
   

  
	
  44.

  	
  THIRD PARTY RIGHTS

  	
  188

  
	
   

  	
   

  	
   

  
	
  45.

  	
  COUNTERPARTS

  	
  188

  
	
   

  	
   

  	
   

  
	
  46.

  	
  GOVERNING LAW

  	
  188

  
	
   

  	
   

  	
   

  
	
  47.

  	
  JURISDICTION

  	
  188

  



 


ii

















 


THIS AGREEMENT is dated [•]
2006


 


BETWEEN:


 


(1)           TELEWEST GLOBAL, INC. (to be renamed “NTL INCORPORATED” on or following consummation of the Merger), a company
incorporated in the State of Delaware, United States of America, whose
registered office is at 1105 North Market Street, Suite 1300, Wilmington,
Delaware 19801, United States of America (the “Ultimate Parent”);


 


(2)           NTL
CABLE PLC, a company
incorporated in England & Wales with registered number 5061787 and
having its registered office at NTL House, Bartley Wood Business Park, Hook,
Hampshire RG27 9UP (the “NTL Cable”
or the “Parent”);


 


(3)           NTL INVESTMENT HOLDINGS LIMITED, a company incorporated in
England & Wales under registered number 3173552 and having its
registered office at NTL House, Bartley Wood Business Park, Hook, Hampshire,
RG27 9UP (“NTLIH”);


 


(4)           TELEWEST
COMMUNICATIONS NETWORKS LIMITED, a company incorporated in England & Wales
under registered number 3071086, and having its registered office at Export
House, Cawsey Way, Woking, Surrey, GU21 6QX (or, following a Solvent
Liquidation thereof pursuant to the provisions of Clause 25.20 (Solvent Liquidation), the relevant Successor Entity, “TCN”);


 


(5)           NTLIH
SUB LIMITED,
a company incorporated in England & Wales with registered number 5316140 and having its registered office
at NTL House, Bartley Wood Business Park, Hook,
Hampshire, RG27 9UP (“NTLIH Sub”);


 


(6)           NTL
DOVER LLC,
a limited liability company organised under the laws of the State of Delaware,
United States of America, whose registered office is at c/o National Registered
Agents, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware 19904,
United States of America (the “US Borrower”);


 


(7)           THE
ORIGINAL GUARANTORS (as defined below);


 


(8)           DEUTSCHE
BANK AG, LONDON BRANCH, J.P. MORGAN PLC, THE ROYAL BANK OF SCOTLAND PLC and GOLDMAN
SACHS INTERNATIONAL (each a “Bookrunner” and together, the “Bookrunners”);


 


(9)           DEUTSCHE
BANK AG, LONDON BRANCH, J.P. MORGAN PLC, THE ROYAL BANK OF SCOTLAND PLC and GOLDMAN SACHS INTERNATIONAL (each a “Mandated Lead Arranger” and together, the “Mandated Lead Arrangers”);


 


(10)         DEUTSCHE BANK AG, LONDON BRANCH (as
agent for and on behalf of the Finance Parties, the “Facility Agent”);


 


(11)         DEUTSCHE
BANK AG, NEW YORK BRANCH (as United States
paying agent for and on behalf of the Finance Parties,  the “US
Paying Agent”);


 


(12)         DEUTSCHE
BANK AG, LONDON BRANCH (as security trustee
for and on behalf of the Finance Parties, the “Security Trustee”);


 


(13)         GE
CORPORATE BANKING EUROPE SAS (as administrative agent, the “Administrative Agent”);


 


(14)         THE
LENDERS (as defined below); and


 


3

















 


(15)         DEUTSCHE
BANK AG, LONDON BRANCH as L/C Bank (the “Original L/C Bank”).


 


WHEREAS:


 


(1)           The
parties hereto have entered into a £3.775 billion senior facilities agreement
dated the Original Execution Date (as defined below) (the “Original
Agreement”).


 


(2)           Pursuant
to the terms of Clause 44 (Amendment Upon Structure
Notice) of the Original Agreement, each of the parties hereto agreed
to amend and restate the Original Agreement with the form of this
Agreement and with effect from the date on which the Company delivers the
Structure Notice to the Facility Agent in accordance with the terms of Clause
44.1 (Delivery of Structure Notice) of the
Original Agreement.


 


(3)           The
Facility Agent confirms that it has received a copy of the Structure Notice and
has delivered a copy of that Structure Notice to each of the Finance Parties.


 


(4)           Accordingly,
the Original Agreement shall be amended and restated in the form of this
Agreement with effect from the date of such Structure Notice.


 


1.             DEFINITIONS AND INTERPRETATION


 


1.1          Definitions


 


In this Agreement the following terms have the
meanings set out below.


 


“80% Security Test”
means the requirement that, save as otherwise provided in Clause 24.12 (Further Assurance), members of the Bank
Group generating not less than 80% of Consolidated Operating Cashflow
(excluding for the purposes of this calculation, any Consolidated Net Income
attributable to any Joint Venture) have acceded as Guarantors to this Agreement
as tested by reference to each set of annual financial information relating to
the Bank Group delivered to the Facility Agent pursuant to Clause 22.1 (Financial Statements). For the avoidance
of doubt, members of the Telewest Group which have granted guarantees and
security in respect of the A Facility, the A1 Facility and the B1 Facility
shall continue to be treated as Guarantors for the purposes of this 80%
Security Test, notwithstanding any subsequent failure to satisfy the provisions
of Sections 151 to 158 of the Act with respect to the granting of guarantees
and security in respect of the B Facility.


 


“A Facility”
means the term loan facility granted to the Borrowers pursuant to Clause 2.1(a) (The Facilities).


 


“A Facility Margin”
means, in relation to A Facility Advances, and subject to Clause 14.7 (Margin Ratchet for A Facility Advances and A1 Facility Advances),
1.875% per annum.


 


“A Facility
Outstandings” means, at any time, the aggregate principal amount of
the A Facility Advances outstanding under this Agreement.


 


“A1 Facility”
means the term loan facility granted to Baseball Cash Bidco pursuant to Clause
2.1(b) (The Facilities).


 


“A1 Facility Margin”
means, in relation to A1 Facility Advances, and subject to Clause 14.7 (Margin Ratchet for A Facility Advances and A1 Facility Advances),
1.875% per annum.


 


“A1 Facility Outstandings”
means, at any time, the aggregate principal amount of the A1 Facility Advances
outstanding under this Agreement.


 


4

















 


“Acceding Borrower”
means a member of the Bank Group which has complied with the requirements of
Clause 26.1 (Acceding Borrower).


 


“Acceding Group Company” means an Acceding Borrower, an
Acceding Guarantor or an Acceding Holding Company, as the context may require.


 


“Acceding Guarantor”
means any member of the Bank Group which has complied with the requirements of
Clause 26.2 (Acceding Guarantors).


 


“Acceding Holding
Company” means any person which becomes the Holding Company of the
Ultimate Parent and which has complied with the requirements of Clause 26.3 (Acceding Holding Company).


 


“Acceding Obligors”
means the Acceding Borrowers and the Acceding Guarantors.


 


“Acceleration Date”
means the date on which a written notice has been served under Clause 27.17 (Acceleration).


 


“Acceptable Hedging
Agreement” means a Hedging Agreement entered into on the terms of
the International Swaps & Derivatives Association Inc. 1992 or 2002
Master Agreement (Multicurrency-Cross Border) under which:


 


(a)           if the 1992 Master
Agreement is used, “Second Method” and “Market Quotation” are specified as the
payment method applicable;


 


(b)           if the 2002 Master Agreement is used, the relevant agreement provides for
two way payments; and


 


(c)           the governing Law is
English or New York Law.


 


“Accession Notice”
means a duly completed notice of accession in the form of Part 1 of Schedule 7
(Form of Accession Notice).


 


“Act”
means the Companies Act 1985 (as amended).


 


“Additional Assets”
means any property, stock or other assets to be used by any member of the Bank
Group in the Group Business or any business whose primary operations are
directly related to the Group Business.


 


“Advance” means:


 


(a)           when
designated “A Facility”, the principal amount
of each advance made or to be made under the A Facility or arising in respect
of the A Facility under Clause 14.3 (Consolidation of Term
Facility Advances) or under Clause 14.4 (Division of
Term Facility Advances);


 


(b)           when
designated “A1 Facility”, the principal amount
of each advance made or to be made under the A1 Facility or arising in respect
of the A1 Facility under Clause 14.3 (Consolidation of Term
Facility Advances) or under Clause 14.4 (Division of
Term Facility Advances);


 


(c)           when
designated “B Facility”, the principal amount
of each advance made or to be made under the B Facility or arising in respect
of the B Facility under Clause 14.3 (Consolidation of Term
Facility Advances) or under Clause 14.4 (Division of
Term Facility Advances);


 


5

















 


(d)           when
designated “B1 Facility”, the principal amount
of each advance made or to be made under the B1 Facility or arising in respect
of the B1 Facility under Clause 14.3 (Consolidation of Term
Facility Advances) or under Clause 14.4 (Division of
Term Facility Advances);


 


(e)           when
designated “Revolving Facility”, the principal
amount of each advance made or to be made under the Revolving Facility (but
excluding for the purposes of this definition, any utilisation of the Revolving
Facility by way of Ancillary Facility or Documentary Credit); or


 


(f)            without
any such designation, the “A Facility Advance”,
the “A1 Facility Advance”, the “B Facility Advance”, “B1 Facility Advance”
and/or the “Revolving Facility Advance”, as
the context requires,


 


in each case as from time to time reduced by repayment
or prepayment.


 


“Affiliate”
means, in relation to a person, any other person directly or indirectly
controlling, controlled by or under direct or indirect common control with that
person, and for these purposes “control” shall be construed so as to mean the
ownership, either directly or indirectly and legally or beneficially, of more
than 50% of the issued share capital of a company or the ability to control,
either directly or indirectly, the affairs or the composition of the board of
directors (or equivalent of it) of a company and “controlling”, “controlled by”
and “under common control with” shall be construed accordingly.


 


“Agents” means
the Facility Agent, the US Paying Agent and the Administrative Agent, and “Agent” means either of them.


 


“Agreed Business
Plan” means the business plan, financial model and analysis of the
future funding requirements of the Company and the Bank Group prepared by the
Company and delivered to the Mandated Lead Arrangers, in the agreed form, prior
to the Original Execution Date.


 


“Alternative Baseball
Acquisition” means the acquisition (other than pursuant to the
Baseball Scheme) by any member of the Bank Group of not less than 71% of the
total issued share capital of Baseball which is funded by Alternative Baseball
Financing or by Guaranteed Parent Debt.


 


“Alternative Baseball
Financing” means, following the cancellation of the A1 Facility
Commitments and the B1 Facility Commitments, an amount of up to £500 million
raised by way of the introduction of one or more tranches under this Agreement,
and having a final maturity date which falls no earlier than the Final Maturity
Date for the A Facility, for the purposes of (i) paying the cash
consideration of an Alternative Baseball Acquisition, (ii) refinancing the
Existing Baseball Facilities and (iii) paying the fees, costs and expenses
payable by or on behalf of the Bank Group in connection with the Alternative
Baseball Acquisition.


 


“Alternative Bridge Facility”
means the alternative bridge facility made available pursuant to the
Alternative Bridge Facility Agreement, the proceeds of which are on-lent to the
Company and following a series of transactions as more particularly
described in the Steps Paper, applied for the purposes of repaying in part,
amounts outstanding under the Bridge Facility.


 


“Alternative Bridge
Facility Agreement” means the senior subordinated bridge facility
agreement to be entered into prior to the Structuring Date between, among others,
the Parent and the Mandated Lead Arrangers (as defined therein) relating to the
Alternative Bridge Facility or any agreement entered into pursuant thereto and
in accordance with the terms thereof for the purposes of extending the term of
such facilities beyond one year (including, in each case, any Exchange Notes).


 


“Ancillary Facility”
means any:


 


(a)           overdraft, automated
payment, cheque drawing or other current account facility;


 


6

















 


(b)           forward foreign exchange
facility;


 


(c)           derivatives facility;


 


(d)           guarantee, bond
issuance, documentary or stand-by letter of credit facility;


 


(e)           performance bond
facility; and/or


 


(f)            such other facility
or financial accommodation as may be required in connection with the Group
Business and which is agreed in writing between the relevant UK Borrowers and
the relevant Ancillary Facility Lender.


 


“Ancillary Facility
Commitment” means, in relation to an Ancillary Facility Lender at
any time, and save as otherwise provided in this Agreement, the maximum
Sterling Amount to be made available under an Ancillary Facility granted by it,
to the extent not cancelled or reduced or transferred pursuant to the terms of
such Ancillary Facility or under this Agreement.


 


“Ancillary Facility
Documents” means the documents and other instruments pursuant to
which an Ancillary Facility is made available and the Ancillary Facility
Outstandings under it are evidenced.


 


“Ancillary Facility
Lender” means any Lender which has notified the Facility Agent that
it has agreed to its nomination in a Conversion Notice to be an Ancillary
Facility Lender in respect of an Ancillary Facility granted pursuant to the
terms of this Agreement.


 


“Ancillary Facility
Outstandings” means (without double counting), at any time with
respect to an Ancillary Facility Lender and each Ancillary Facility provided by
it, the aggregate of:


 


(a)           all amounts of
principal then outstanding under any overdraft, automated payment, cheque
drawing or other current account facility (determined in accordance with the
applicable terms) as at such time; and


 


(b)           in respect of any
other facility or financial accommodation, such other amount as fairly
represents the aggregate potential exposure of that Ancillary Facility Lender
with respect to it under its Ancillary Facility, as reasonably determined by
that Ancillary Facility Lender from time to time in accordance with its usual
banking practices for facilities or accommodation of the relevant type
(including without limitation, the calculation of exposure under any
derivatives facility by reference to the mark-to-market valuation of such
transaction at the relevant time).


 


“Ancillary Facility
Termination Date” has the meaning given to such term in paragraph (h) of
Clause 6.1 (Utilisation of Ancillary Facilities).


 


“Anti-Terrorism Laws”
mean:


 


(a)           Executive Order No. 13224 of September 23, 2001 - Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten To
Commit, or Support Terrorism (the “Executive
Order”);


 


(b)           the Uniting and Strengthening of America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56
(commonly known as the USA Patriot Act); and


 


(c)           the Money Laundering Control
Act of 1986, Public Law 99-570.


 


7

















 


“Applicable Margin”
means the prevailing A Facility Margin, the A1 Facility Margin, the B Facility
Margin, the B1 Facility Margin or Revolving Facility Margin, as the context may require
at the relevant time.


 


“Arrangers”
means the Mandated Lead Arrangers and the Joint Lead Arrangers and “Arranger” means any of them.


 


“Asset Passthrough”
means a series of transactions between a Bank Holdco, one or more members
of the Bank Group and an Asset Transferring Party where:


 


(a)           in the case of an asset being transferred by a Bank Holdco to the Asset
Transferring Party that asset:


 


(i)            is first transferred by such Bank Holdco to a member of the Bank Group;
and


 


(ii)           may then be
transferred between various members of the Bank Group, and is finally
transferred (insofar as such transaction relates to the Bank Group) to an Asset
Transferring Party; or


 


(b)           in the case of an asset being transferred by an Asset Transferring Party
to a Bank Holdco, that asset:


 


(i)            is first transferred by that Asset Transferring Party to a member of the
Bank Group; and


 


(ii)           may then be transferred between various members of the Bank Group,
and is finally transferred (insofar as such transaction relates to the Bank
Group) to such Bank Holdco,


 


and where the purpose
of each such asset transfer is, in the case of an Asset Passthrough of the type
described in paragraph (a), to enable a Bank Holdco to indirectly transfer
assets (other than cash) to that Asset Transferring Party and, in the case of an
Asset Passthrough of the type described in paragraph (b), is to enable an Asset
Transferring Party to indirectly transfer assets (other than cash) to a Bank
Holdco, in either case, by way of transfers of those assets to and from (and,
if necessary, between) one or more members of the Bank Group in such a manner
as to be neutral to the Bank Group taken as a whole provided that:


 


(w)           the consideration
payable (if any) by the first member of the Bank Group to acquire such assets
comprises either (i) cash funded or to be funded directly or indirectly by
a payment from (in the case of an Asset Passthrough of the type described in
paragraph (a)) the Asset Transferring Party and (in the case of an Asset
Passthrough of the type described in paragraph (b)) a Bank Holdco, in either
case, in connection with that series of transactions or (ii) Subordinated
Funding or (iii) the issue of one or more securities;


 


(x)           the consideration
payable by (in the case of an Asset Passthrough of the type described in
paragraph (a)) the Asset Transferring Party is equal to the consideration
received or receivable by a Bank Holdco and (in the case of an Asset
Passthrough of the type described in paragraph (b)) by a Bank Holdco is equal
to the consideration received or receivable by the Asset Transferring Party
(and for this purpose, a security issued by one company shall constitute equal
consideration to a security issued by another company where such securities
have been issued on substantially the same terms and subject to the same conditions);


 


8

















 


(y)           all of the
transactions comprising such a series of transactions (from and including
the transfer of the assets by a Bank Holdco to and including the acquisition of
those assets by the Asset Transferring Party or vice versa) are completed
within two Business Days; and


 


(z)           upon completion of
all of the transactions comprising such a series of transactions, no
person (other than another member of the Bank Group) has any recourse to any
member of the Bank Group and no member of the Bank Group which is not an
Obligor may have any recourse to an Obligor, in each case in relation to
such a series of transactions (other than in respect of (i) the
Subordinated Funding or any rights and obligations under the securities, in
each case, mentioned in paragraph (w) above and (ii) covenants as to title
provided, in the case of an Asset Passthrough of the type described in
paragraph (a), in favour of the Asset Transferring Party on the same terms as
such covenants were provided by the Bank Holdco in respect of the relevant
assets and, in the case of an Asset Passthrough of the type described in
paragraph (b), in favour of the Bank Holdco on the same terms as such covenants
were provided by the Asset Transferring Party in respect of the relevant
assets).


 


“Asset Transferring
Party” means the member of the Group (or any person in which a
member of the Bank Group owns an interest but which is not a member of the
Group), other than a member of the Bank Group (except where the asset being
transferred is a security where such member of the Group may be a member
of the Bank Group), who is the initial transferor or final transferee in
respect of a transfer to or from a Bank Holdco, as the case may be,
through one or more members of the Bank Group.


 


“Associated Costs
Rate” means, in relation to any Advance or Unpaid Sum, the rate
determined in accordance with Schedule 6 (Associated
Costs Rate).


 


“Authorisation”
means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration.


 


“Available A
Facility Commitment” means, in relation to a Lender, at any time and
save as otherwise provided in this Agreement, its A Facility Commitment at such
time less the Sterling Amount of its share of the A Facility Advances made
under this Agreement, adjusted to take account of:


 


(a)           any cancellation or
reduction of, or any transfer by such Lender or any transfer to it of, any A
Facility Commitment, in each case, pursuant to the terms of this Agreement; and


 


(b)           in the case of any
proposed Advance, the Sterling Amount of its share of such A Facility Advance
which, pursuant to any other Utilisation Request is to be made on or before the
proposed Utilisation Date,


 


provided always that such amount shall not be less
than zero.


 


“Available A1
Facility Commitment” means, in relation to a Lender, at any time and
save as otherwise provided in this Agreement, its A1 Facility Commitment at
such time less the Sterling Amount of its share of the A1 Facility Advances
made under this Agreement, adjusted to take account of:


 


(a)           any cancellation or
reduction of, or any transfer by such Lender or any transfer to it of, any A1
Facility Commitment, in each case, pursuant to the terms of this Agreement; and


 


9

















 


(b)           in the case of any
proposed Advance, the Sterling Amount of its share of such A1 Facility Advance
which, pursuant to any other Utilisation Request is to be made on or before the
proposed Utilisation Date,


 


provided always that such amount shall not be less
than zero.


 


“Available Ancillary
Facility Commitment” means, in relation to an Ancillary Facility
Lender and an Ancillary Facility granted by it at any time, and save as
otherwise provided in this Agreement or in the applicable Ancillary Facility
Documents, its Ancillary Facility Commitment at such time, less the Sterling
Amount of the relevant Ancillary Facility Outstandings at such time, provided
always that such amount shall not be less than zero.


 


“Available B
Facility Commitment” means, in relation to a Lender, at any time and
save as otherwise provided in this Agreement, its B Facility Commitment at such
time less the Sterling Amount of its share of the B Facility Advances made
under this Agreement, adjusted to take account of:


 


(a)           any cancellation or
reduction of, or any transfer by such Lender or any transfer to it of, any B
Facility Commitment, in each case, pursuant to the terms of this Agreement; and


 


(b)           in the case of any
proposed Advance, the Sterling Amount of its share of such B Facility Advance
which, pursuant to any other Utilisation Request is to be made on or before the
proposed Utilisation Date,


 


provided always that such amount shall not be less
than zero.


 


“Available B1
Facility Commitment” means, in relation to a Lender, at any time and
save as otherwise provided in this Agreement, its B1 Facility Commitment at
such time less the Sterling Amount of its share of the B1 Facility Advances
made under this Agreement, adjusted to take account of:


 


(a)           any cancellation or
reduction of, or any transfer by such Lender or any transfer to it of, any B1
Facility Commitment, in each case, pursuant to the terms of this Agreement; and


 


(b)           in the case of any
proposed Advance, the Sterling Amount of its share of such B1 Facility Advance
which, pursuant to any other Utilisation Request is to be made on or before the
proposed Utilisation Date,


 


provided always that such amount shall not be less
than zero.


 


“Available
Commitment” means, in relation to a Lender, the aggregate amount of
its Available A Facility Commitments, its Available A1 Facility
Commitments, its Available B Facility Commitments, its Available B1 Facility
Commitments, its Available Revolving Facility Commitment and its Available
Ancillary Facility Commitment, or, in the context of a particular Facility, its
Available A Facility Commitment, its Available A1 Facility Commitments, its
Available B Facility Commitments, its Available B1 Facility Commitments, its
Available Revolving Facility Commitment or its Available Ancillary Facility
Commitment, as the context may require.


 


“Available Facility”
means, in relation to a Facility, at any time, the aggregate amount of the
Available Commitments in respect of that Facility at that time.


 


“Available Revolving
Facility” means, at any time, the aggregate amount of the Available
Revolving Facility Commitments.


 


10

















 


“Available Revolving
Facility Commitment” means, in relation to a Lender, at any time and
save as otherwise provided in this Agreement, its Revolving Facility Commitment
at such time, less the Sterling Amount of its share of the Revolving Facility
Outstandings, adjusted to take account of:


 


(a)           any cancellation or
reduction of, or any transfer by such Lender or any transfer to it of, any
Revolving Facility Commitment, in each case, pursuant to the terms of this
Agreement; and


 


(b)           in the case of any
proposed Utilisation, the Sterling Amount of its share of (i) such
Revolving Facility Advance and/or Documentary Credit which pursuant to any
other Utilisation Request is to be made, or as the case may be, issued,
and (ii) any Revolving Facility Advance and/or Documentary Credit which is
due to be repaid or expire (as the case may be), in each case, on or before
the proposed Utilisation Date,


 


provided always that such amount shall not be less
than zero.


 


“B Facility”
means the term loan facility granted pursuant to Clause 2.1 (c) (The Facilities) to the Company and/or pursuant to the
provisions of paragraph (a) of Clause 2.2 (Novation of
B Facility and B1 Facility), the US Borrower.


 


“B Facility Margin”
means, in relation to the B Facility Advances, 2.250% per annum.


 


“B Facility Outstandings”
means, at any time the aggregate principal amount of the B Facility Advances
outstanding under this Agreement.


 


“B1 Facility”
means the term loan facility granted pursuant to Clause 2.1(d) (The Facilities) to Baseball Cash Bidco and/or pursuant to
the provisions of paragraph (b) Clause 2.2 (Novation of
B Facility and B1 Facility), the US Borrower.


 


“B1 Facility Margin”
means, in relation to the B1 Facility Advances, 2.250% per annum.


 


“B1 Facility Outstandings”
means, at any time the aggregate principal amount of the B1 Facility Advances
outstanding under this Agreement.


 


“Bank Group”
means:


 


(a)           for the purposes of
the definition of “Bank Group Consolidated Revenues”, Clause 22.1 (Financial Statements), Clause 22.3 (Budget)
and Clause 23 (Financial Condition) and any
other provisions of this Agreement using the terms defined in Clause 23 (Financial Condition):


 


(i)            the Company and prior
to the Structuring Date, TCN;


 


(ii)           NTL South Herts, for
so long as a member of the Bank Group is the general partner of South
Hertfordshire United Kingdom Fund, Ltd or if it becomes a wholly-owned
Subsidiary of the Company;


 


(iii)         Fawnspring
Limited, for so long as it is a Subsidiary of the Company;


 


(iv)          each of the Company’s and
prior to the Structuring Date, TCN’s, other direct and indirect Subsidiaries
from time to time, excluding the Bank Group Excluded Subsidiaries; and


 


(v)            without prejudice to
sub-paragraph (iv) above, each of the direct and indirect Subsidiaries
from time to time of NTL Communications Limited, excluding any 


 


11

















 


Subsidiary thereof which has a direct or
indirect interest in the Company or, prior to the Structuring Date, TCN;


 


(b)           for all other
purposes:


 


(i)            the Company and prior to the Structuring Date, TCN, and each of their
respective direct and indirect Subsidiaries from time to time, other than the
Bank Group Excluded Subsidiaries; and


 


(ii)           each of the direct
and indirect Subsidiaries from time to time of NTL Communications Limited to
the extent not already included by virtue of sub-paragraph (i) above, and
excluding, any Subsidiary thereof which has a direct or indirect interest in
the Company or, prior to the Structuring Date, TCN,


 


but excluding for all
purposes under (a) and (b) above:


 


(i)            any
Permitted Joint Ventures; and


 


(ii)           the
Baseball Group, if the Baseball Acquisition is funded by a Stand Alone Baseball
Financing.


 


For information purposes only, the members of the Bank
Group as at the Original Execution Date for the purposes of paragraph (b) are
listed in Part 1 of Schedule 9 (Members of the Bank Group).


 


“Bank Group Cash
Flow” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


“Bank Group
Consolidated Revenues” means, in respect of any period, the
consolidated revenues for the Bank Group for that period as evidenced by the
financial information provided in respect of that period pursuant to Clause
22.1 (Financial Statements).


 


“Bank Group Excluded
Subsidiary” means:


 


(a)           any Subsidiary of the
UK Borrowers or NTL Communications Limited which is a Dormant Subsidiary and
which (i) has assets (save for loans existing on the Original Execution
Date owed to it by other members of the Bank Group) with an aggregate value of
£10,000 or less; and (ii) is not a Guarantor;


 


(b)           Telewest Finance
Corporation;


 


(c)           Flextech Interactive Limited;


 


(d)           Fawnspring Limited;


 


(e)           NTL South Herts and
its Subsidiaries, until such time as NTL South Herts becomes a wholly-owned
Subsidiary of the Company;


 


(f)            any Subsidiary of the
UK Borrowers or NTL Communications Limited which is a Project Company; and


 


(g)           any company which
becomes a Subsidiary of the Parent or NTL Communications Limited in each case,
after the Original Execution Date pursuant to an Asset Passthrough,


 


provided that any Bank Group Excluded Subsidiary may, at the election of the Parent
and upon not less than 10 Business Days’ prior written notice to the Facility
Agent, cease to be a Bank Group Excluded Subsidiary and become a member of the
Bank Group.


 


12

















 


“Bank Holdco”
means a direct Holding Company of a member of the Bank Group which is not a
member of the Bank Group.


 


“Barclays Intercreditor
Agreement” has the meaning given to such term in the Group
Intercreditor Agreement.


 


“Baseball” means
Virgin Mobile Holdings (UK) plc, incorporated in England & Wales with
registered number 3741555 and having its registered offices at Willow Grove
House, Windsor Road, White Horse Business Park, Trowbridge, Wiltshire, BA14
0TQ.


 


“Baseball Acquisition”
means the proposed acquisition by the Baseball Bidcos of the entire issued and
to be issued share capital of Baseball by way of a scheme of arrangement under Section 425
of the Act with Baseball’s shareholders.


 


“Baseball Bidcos”
means Baseball Cash Bidco and Baseball Stock Bidco.


 


“Baseball Cash Bidco”
means NTL Investment Holdings Limited, a company incorporated in England &
Wales with registered number 3173552 and having its registered office at NTL
House, Bartley Wood Business Park, Hook, Hampshire RG27 9UP.


 


“Baseball Certain Funds
Period” means, in relation to the A1 Facility and the B1 Facility,
the period commencing on the Original Execution Date and ending on the earlier
of (a) the date on which the Baseball Scheme proposal fails or is
withdrawn, (b) 30 September 2006 or (c) the date which is
30 days after the Baseball Effective Date.


 


“Baseball Clean-Up Period”
means the period commencing on the Baseball Effective Date and ending on the
date falling 4 months and 2 weeks thereafter.


 


“Baseball Drawstop Default”
means an Event of Default arising under any of the following provisions, in
each case, with respect to Baseball Cash Bidco only::


 


(a)           Clause 27.1 (Non-Payment);


 


(b)           Clause 27.2 (Covenants) by
virtue of a breach of the covenants under Clause 25.2 (Negative
Pledge) (in a manner which could reasonably be expected to have a
material adverse effect on the Security (taken as a whole)) or
paragraphs (a), (b), (c), (d), (g), (h) and (j) of Clause 24.22
(Baseball Scheme Undertakings);


 


(c)           Clause 27.4 (Misrepresentation)
by virtue of a breach of any of the representations and warranties in Clauses
21.2 (Due Organisation) only as regards to the
provisions of this Agreement that relate to the A1 Facility and the B1
Facility, but not otherwise; or


 


(d)           Clause 27.6 (Insolvency),
Clause 27.7 (Winding-Up), Clause 27.8 (Execution and Distress) or Clause 27.9 (Similar
Events) other than any such event which is caused by the occurrence
or potential occurrence of another Event of Default.


 


“Baseball Effective Date”
means the date on which the Court Order is filed with the Registrar of
Companies pursuant to Section 425 of the Act.


 


“Baseball  Group” means Baseball and each of its Subsidiaries from time
to time.


 


13

















 


“Baseball Lender”
means:


 


(a)           in relation to the A1 Facility and B1 Facility, any Lender which:


 


(i)            is
named in Part 1 of Schedule 1 (Lenders and Commitments)
as a Lender in respect of the A1 Facility and/or B1 Facility; or


 


(ii)           has
become a party to this Agreement in accordance with the provisions of Clause 37
(Assignments and Transfers) as a Lender
in respect of the A1 Facility and/or B1 Facility; or


 


(b)           in
relation to an Alternative Baseball Financing, any Lender which has provided
the Company and/or Baseball Cash Bidco, with a commitment to provide some or
all of the Alternative Baseball Financing, whether pursuant to a duly executed
commitment letter, this Agreement or otherwise,


 


which in each case has not ceased to be a party to
this Agreement in accordance with the terms of this Agreement.


 


“Baseball Implementation
Agreement” means the agreement to be entered into between NTL
Incorporated, the Baseball Bidcos and Baseball in respect of the Baseball
Scheme (in the form agreed with the Bookrunners on or before the Original
Execution Date).


 


“Baseball Instructing Group”
means:


 


(a)           in
relation to the A1 Facility and B1 Facility:


 


(i)            before
any Utilisation of the A1 Facility and the B1 Facility under this Agreement, a
Baseball Lender or group of Baseball Lenders whose Available A1 Facility
Commitments and Available B1 Facility Commitments (as applicable) amount in
aggregate to more than 662/3% of the Available A1
Facility Commitments and Available B1 Facility Commitments (taken together);
and


 


(ii)           thereafter,
a Baseball Lender or group of Baseball Lenders to whom in aggregate more than
662/3% of the A1 Facility Outstandings and B1 Facility
Outstandings (taken together) are (or if there are no A1 Facility Outstandings
or B1 Facility Outstandings at such time, immediately prior to their repayment,
were then) owed; or


 


(b)           in
relation to any Alternative Baseball Financing:


 


(i)            before
any Utilisation of the Alternative Baseball Financing, a Baseball Lender or
group of Baseball Lenders whose commitments in respect of such Alternative
Baseball Financing amount in aggregate to more than 662/3%
of the total commitments under such Alternative Baseball Financing; or


 


(ii)           thereafter,
a Baseball Lender or group of Baseball Lenders to whom in aggregate more than
662/3% of the outstandings under the Alternative Baseball
Financing are (or if there are no outstandings under the Alternative Baseball
Financing prior to such repayment, were then) owed,


 


in each case, calculated in accordance with the
provisions of Clause 43.9 (Calculation of Consents).


 


“Baseball Press Release”
means the announcement (in the form agreed with the Bookrunners on or
before the Original Execution Date) in accordance with Rule 2.5 of the
Takeover Code in respect of


 


14

















 


the Baseball Scheme by the Baseball Bidcos of all of
the issued and to be issued Baseball Shares not already owned by the Baseball
Bidcos.


 


“Baseball Resolutions”
means the resolutions passed at each of the board meetings and the
extraordinary general meeting of the Shareholders of Baseball.


 


“Baseball Scheme”
means the scheme of arrangement under Section 425 of the Act to be
proposed by Baseball to its shareholders, details of which are set out in the
Baseball Scheme Circular and which are consistent with the terms of the
Baseball Press Release.


 


“Baseball Scheme Circular”
means the circular to the shareholders of Baseball setting out the proposals
for the Baseball Scheme pursuant to which the Baseball Bidcos will acquire all
of the issued and to be issued Baseball Shares not already owned by the
Baseball Bidcos.


 


“Baseball Scheme Document”
means each of the following:


 


(a)           the Baseball Press Release;


 


(b)           the
Baseball Resolutions;


 


(c)           the Baseball Implementation Agreement; and


 


(d)           the Baseball Scheme Circular,


 


and together the “Baseball Scheme Documents”.


 


“Baseball Shares”
means the ordinary shares of Baseball issued as at the Original Execution Date
together with any shares to be issued by Baseball prior to the Baseball
Effective Date.


 


“Baseball Stock Bidco”
means NTL (UK) Group, Inc., a company incorporated in the State of
Delaware, United States of America, registered as a foreign company under the
Act with registered number FC018124 and having its registered office at 9 East
Loockerman Street, Suite 1B, Dover, Delaware 19901, United States of
America.


 


“BBA LIBOR”
means in relation to LIBOR, the British Bankers Association Interest Settlement
Rate for the relevant currency and Interest Period displayed on the appropriate
page of the Telerate screen. If the agreed page is replaced or service
ceases to be available, the Facility Agent may specify another page or
service displaying the appropriate rate after consultation with the Company and
the Lenders.


 


“BBC Guarantees”
means the guarantees required to be given by the Borrowers in favour of BBC
Worldwide Limited pursuant to the shareholder agreements relating to the UKTV
Joint Ventures.


 


“Beneficiary”
means a beneficiary in respect of a Documentary Credit.


 


“Blocked Account”
means each interest bearing account maintained with the Facility Agent (or such
other bank as the Facility Agent and the Company may jointly determine) in
the name of an Obligor for the purposes of Clauses 12.3 (Blocked
Accounts) or 12.8 (Trapped Cash)
which is secured in favour of the Security Trustee pursuant to the Security
Documents, or as otherwise required by the terms of this Agreement.


 


“Borrowers”
means the UK Borrowers, the US Borrower and any Acceding Borrower.


 


“Break Costs”
means the amount (if any) by which:


 


(a)           the interest
(excluding the Applicable Margin and Associated Costs Rate) which a Lender
should have received for the period from the date of receipt of all or any part of
its


 


15

















 


participation in an
Advance or Unpaid Sum to the last day of the current Interest Period or Term in
respect of that Advance or Unpaid Sum, had the amount so received been paid on
the last day of that Interest Period or Term;


 


exceeds:


 


(b)           the amount which that
Lender would be able to obtain by placing an amount equal to the principal
amount of such Advance or Unpaid Sum received or recovered by it on deposit
with a leading bank in the Relevant Interbank Market for a period starting on
the Business Day following such receipt or recovery and ending on the last day
of the current Interest Period or Term.


 


“Bridge Facility”
means the £1,800,000,000 bridge facility, the proceeds of which will be applied
to fund the Ultimate Parent’s deposit with the Exchange Agent (as defined in
the Merger Agreement) for the benefit of the Ultimate Parent’s shareholders,
cash in an amount equal to Redemption Consideration as required under the
Merger Agreement, and the payment of any transaction fees and expenses in
connection with the Merger Agreement and the Finance Documents.


 


“Bridge Facility
Agreement” means the senior subordinated bridge facility agreement
dated the Original Execution Date between, among others, Merger Sub, NTL and
the Mandated Lead Arrangers (as defined therein) relating to the Bridge
Facility or any agreement entered into pursuant thereto and in accordance with
the terms thereof for the purposes of extending the term of such facilities
beyond one year (including, in each case, any Exchange Notes).


 


“Bridge Finance
Documents” has the meaning given to the term “Finance Documents” in the Bridge
Facility Agreement, the Alternative Bridge Facility Agreement or, in each case,
any Exchange Notes, as the case may be, as the context may require.


 


“Budget”
means in respect of any financial year commencing after 31 December 2006,
the budget for such financial year, in the form and including the
information required to be delivered by the Company to the Facility Agent
pursuant to Clause 22.3 (Budget).


 


“Business Day”
means a day (other than a Saturday or Sunday) on which (a) banks generally
are open for business in London and (b) if such reference relates to a
date for the payment or purchase of any sum denominated in:


 


(a)           euro (A) is a
TARGET Day and (B) is a day on which banks generally are open for business
in the financial centre selected by the Facility Agent for receipt of payments
in euro; or


 


(b)           in a currency other
than euro, banks generally are open for business in the principal financial
centre of the country of such currency.


 


“Business Division Transaction” means any sale, transfer,
demerger, contribution, spin-off or distribution of, any creation or
participation in any joint venture and/or entering into any other transaction
or taking any action with respect to, in each case, any assets, undertakings
and/or businesses of the Group which comprise all or part of the “NTL —
Business Segment” of the Group, to or with any other entity or person, whether
or not within the Group or the Bank Group, in each case, where such transaction
has the prior approval of an Instructing Group.


 


“Captive Insurance Company” means any captive insurance company
for the Group (or any part thereof, which includes the Bank Group).


 


“Cash”
has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


16

















 


“Cash Equivalent
Investment” means:


 


(a)           debt securities which are
freely negotiable and marketable:


 


(i)            which mature not more than 12 months from the date
of acquisition; and


 


(ii)           which are rated at least AA by Standard &
Poor’s or Fitch or Aa2 by Moody’s;


 


(b)           certificates of
deposit of, or time deposits or overnight bank deposits with, any commercial
bank whose short-term securities are rated at least A-2 by Standard and Poor’s or Fitch or P-2 by Moody’s and having
maturities of 12 months or less from the date of acquisition;


 


(c)           commercial paper of,
or money market accounts or funds with or issued by, an issuer rated at least A-2
by Standard & Poor’s or Fitch
or P-2 by Moody’s and having an original tenor of 12 months or less;


 


(d)           medium term fixed or
floating rate notes of an issuer rated at least AA by Standard & Poor’s
or Fitch or Aa2 by Moody’s at
the time of acquisition and having a remaining term of 12 months or less from
the date of acquisition; or


 


(e)           any investment in a
money market fund or enhanced yield fund (i) whose aggregate assets exceed
£250 million and (ii) at least 90% of whose assets constitute Cash
Equivalent Investments of the type described in paragraphs (a) to (d) of
this definition.


 


“Centre of Main
Interests” has the meaning given to it in Article 3(1) of
Council Regulation (EC) NO 1346/2000 of 29 May 2000 on Insolvency
Proceedings.


 


“Change in Tax Law”
means the introduction, implementation, repeal, withdrawal or change in, or in
the interpretation, administration or application of any Law relating to
taxation (a) in the case of a participation in an Advance by a Lender
named in Part 1 of Schedule 1 (Lenders and Commitments)
after the Original Execution Date, or (b) in the case of a participation
in an Advance by any other Lender, after the date upon which such Lender
becomes a party to this Agreement in accordance with the provisions of
Clause 37 (Assignments and Transfers).


 


“Change of Control” means:


 


(a)           any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) other than any Permitted Holder or a “group” of
Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that for purposes of this
paragraph (a) such person or group shall be deemed to have “beneficial
ownership” of all shares that such person or “group” has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 30% of the Voting Stock of the
Ultimate Parent (for the purposes of this paragraph (a), such person shall
be deemed to beneficially own any Voting Stock of an entity held by any other
entity (the “parent entity”), if such person is
the beneficial owner (as defined in this paragraph (a)), directly or
indirectly, of more than 50% of the Voting Stock of such parent entity);


 


(b)           the sale of all or substantially all of the assets of the Bank Group
taken as a whole;


 


(c)           during any period of two consecutive years, individuals who at the
beginning of such period constituted the board of directors of the Ultimate
Parent (together with any new directors whose election by such board of
directors or whose nomination for election by the shareholders of such company
was approved by a vote of a majority of the directors of such company then
still in office who were either directors at the beginning of such period or


 


17

















 


whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the board of directors of the Ultimate Parent, then in
the office;


 


(d)           any change of control (howsoever defined) occurs under the Existing High
Yield Notes or (if applicable) any High Yield Refinancing, in each case, for so
long as any principal amount remains owing under the same and to the extent
such Existing High Yield Notes or (if applicable) High Yield Refinancing are
not defeased; or


 


(e)           any change of control (howsoever defined) occurs under the Bridge Facility
Agreement or the Alternative Bridge Facility Agreement or, if applicable the
Exchange Notes or the New High Yield Notes, in each case, for so long as any
principal amount remains owing under the same and in the case of the Exchange
Notes and New High Yield Notes only, to the extent such Exchange Notes or New
High Yield Notes are not defeased,


 


provided that an event or transaction shall not
constitute a Change of Control under paragraphs (a), (b) or (c) above:


 


(i)            in
the event that the Ultimate Parent becomes a wholly-owned Subsidiary of a
Holding Company and the stockholders of such Holding Company are substantially
the same as the stockholders of the Ultimate Parent prior to such transaction
(in the case of clause (c) above, such Holding Company shall be
treated as the Ultimate Parent thereafter);


 


(ii)           if
the transaction is a “Non-Control Acquisition”; or


 


(iii)         as a
result of any transactions expressly contemplated by the Steps Paper.


 


For these purposes:


 


a “Non-Control Acquisition”
shall mean (a) any acquisition of Voting Stock of the Ultimate Parent by
an employee benefit plan (or a trust forming a part thereof) maintained by
the Ultimate Parent or any Subsidiary of the Ultimate Parent or any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan or trust, (b) any acquisition of Voting
Stock of the Ultimate Parent by the Ultimate Parent or any Subsidiary of the
Ultimate Parent, or (c) any “Non-Control Transaction”; and


 


a “Non-Control Transaction”
shall mean (a) a merger, amalgamation or consolidation of the Ultimate
Parent or any Subsidiary of the Ultimate Parent with or into another entity or
entities, or (b) a sale of all or substantially all of the assets of the
Bank Group taken as a whole to another entity or entities (each under
clause (a) and (b) a “Transaction”)
in which:


 


(A)          the
stockholders of the Ultimate Parent immediately before such Transaction own
directly or indirectly immediately following such Transaction at least 50% of
the Voting Stock of the surviving or transferee entity or entities of such
Transaction or the ultimate parent company to such surviving or transferee
entity or entities; and


 


(B)          the
individuals who were members of the board of directors of the Ultimate Parent immediately
prior to the execution of the agreement providing for such Transaction
constitute at least a majority of the members of the board of directors of the
surviving or transferee entity or entities of such Transaction or, if such
surviving or transferee entity or entities is not the ultimate parent company
to the Bank Group, the ultimate parent company to such surviving or transferee
entity or entities.


 


Upon and following a Non-Control Acquisition, under
clauses (a) and (c) above, the term the “Ultimate Parent” shall
be deemed to be a reference to such


 


18

















 


surviving or transferee entity or, if such surviving
or transferee entity or entities is not the ultimate parent company to the Bank
Group, the ultimate parent company to such surviving or transferee entity or
entities.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated thereunder. Section references to the Code are to
the Code, as in effect at the Original Execution Date and any subsequent
provisions of the Code, amendatory of it, supplemental to it or substituted
therefor.


 


“Commitment”
means:


 


(a)           when designated “A Facility”
in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in the
relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this Agreement;


 


(b)           when designated “A1 Facility”
in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in the
relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this Agreement;


 


(c)           when designated “B Facility”
in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in the
relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this Agreement;


 


(d)           when designated “B1
Facility” in relation to a Lender at
any time, and save as otherwise provided in this Agreement, the amount set
opposite its name in the relevant column of Part 1 of Schedule 1 (Lenders and Commitments) or as specified in the Transfer
Deed pursuant to which such Lender becomes a party to this Agreement; and


 


(e)           when designated “Revolving Facility”
in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in the
relevant column of Part 1 of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Deed pursuant to which
such Lender becomes a party to this Agreement,


 


and without any such designation means “A Facility Commitment”, “A1 Facility
Commitment”, “B Facility Commitment”,
“B1 Facility Commitment” and “Revolving Commitment”, as the context requires.


 


“Commitment Letter”
means the letter dated 3 March 2006 from the Bookrunners to NTL and the
Company in relation to the commitment of the Bookrunners to arrange and
underwrite the Facilities together with the related accession notices entered
into by the Arrangers.


 


“Company” means:


 


(a)           NTLIH;
or


 


(b)           following
a solvent liquidation of NTLIH, pursuant to the provisions of Clause 25.20
(Solvent Liquidation), NTL Finance
Limited.


 


“Compliance
Certificate” means a certificate substantially in the form set
out in Schedule 8 (Form of Quarterly
Compliance Certificate) or such other similar form as the
Facility Agent shall agree with the Company.


 


“Consolidated Debt
Service” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


19

















 


“Consolidated Net
Debt” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


“Consolidated Net
Income” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


“Consolidated
Operating Cashflow” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


“Consolidated Total
Debt” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


“Consolidated Total
Net Cash Interest Payable” has the meaning ascribed to it in Clause
23.1 (Financial Definitions).


 


“Content”
means any rights to broadcast, transmit, distribute or otherwise make available
for viewing, exhibition or reception (whether in analogue or digital format and
whether as a channel or an Internet service, a teletext-type service, an
interactive service, or an enhanced television service or any part of any
of the foregoing, or on a pay-per-view basis, or near video-on-demand, or
video-on-demand basis or otherwise) any one or more of audio and/or visual
images, audio content, or interactive content (including hyperlinks,
re-purposed web-site content, database content plus associated templates,
formatting information and other data including any interactive applications or
functionality), text, data, graphics, or other content, by means of any means of
distribution, transmission or delivery system or technology (whether now known
or herein after invented).


 


“Content Transaction”
means any sale, transfer, demerger, contribution, spin-off or distribution of,
any creation or participation in any joint venture and/or entering into any
other transaction or taking any action with respect to, in each case, any
assets, undertakings and/or businesses of the Group which comprise all or part of
the Content business of the Group, to or with any other entity or person
whether or not within the Group or Bank Group.


 


“Contribution Notice”
means a financial support direction issued by the Pensions Regulator under section 38
or section 47 of the Pensions Act 2004.


 


“Conversion Notice”
has the meaning given to such term in paragraph (a) of Clause 6.1 (Utilisation of Ancillary Facilities).


 


“Cost”
means the cost estimated in good faith by the relevant member of the Bank Group
to have been incurred or to be received by that member of the Bank Group in the
provision or receipt of the relevant service, facility or arrangement,
including, without limitation, a proportion of any material employment,
property, information technology, administration, utilities, transport and
materials or other costs incurred or received in the provision or receipt of
such service, facility or arrangement, but excluding costs which are either not
material or not directly attributable to the provision or receipt of the
relevant service, facility or arrangement.


 


“Court Order”
means the order of the Court confirming the sanctioning of the Baseball Scheme
as required by Section 425 of the Act.


 


“Current Assets”
has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Current Liabilities”
has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Debt Proceeds”
means the cash proceeds received in respect of any Financial Indebtedness
raised by any member of the Group other than Parent Debt (after deducting all
reasonable fees, commissions, costs and expenses incurred by any member of the
Group in connection with such raising) whether raised by way of bilateral or
syndicated credit facilities, in the international or domestic debt capital
markets or otherwise and including, for the avoidance of doubt, any debt which
at any time following issuance is capable of being converted or exchanged into
equity.


 


20

















 


“Debt Service Cover Ratio”
has the meaning given to such term in paragraph (c) of Clause 23.2 (Ratios).


 


“Deductions Limit” means the total amounts which are deductible
for the purposes of UK corporation tax by members of the Bank Group in any
financial year and which (a) arise from the payment or accrual of actual
or imputed amounts of interest on, or (b) constitute foreign exchange
losses on, any loan made to any member of the Bank Group by any Non-Bank Group
UK Taxpayer.


 


“Default”
means an Event of Default or any event or circumstance which (with the expiry
of a grace period, the giving of notice, the making of any determination under
any of the Finance Documents or any combination of any of the foregoing) would
be an Event of Default provided that in relation to any event which is subject
to a materiality threshold or condition before such event would constitute an
Event of Default, such default shall not constitute a Default until such
materiality threshold or condition has been satisfied.


 


“Disposal” means any sale,
transfer, lease, surrender or other disposal by any member of the Bank Group of
any shares in any of its Subsidiaries or all or any part of its revenues,
assets, other shares, business or undertakings other than in the ordinary
course of business or trade.


 


“Documentary Credit”
means a letter of credit, bank guarantee, indemnity, performance bond or other
documentary credit issued or to be issued by an L/C Bank pursuant to Clause 4.1
(Conditions to Utilisation).


 


“Dormant Subsidiary”
means, at any time, with respect to any company, any Subsidiary of such company
which is “dormant” as defined in Section 249AA of the Act (or the
equivalent under the laws of the jurisdiction of incorporation of the relevant
company).


 


“Double Taxation
Treaty” means in relation to a payment of interest on an Advance
made to any Borrower, any convention or agreement between the government of
such Borrower’s Relevant Tax Jurisdiction and any other government for the
avoidance of double taxation with respect to taxes on income and capital gains
which makes provision for exemption from tax imposed by such Borrower’s
Relevant Tax Jurisdiction on interest.


 


“Effective Date”
has the meaning given to such term in paragraph (a) of Clause 6.1 (Utilisation of Ancillary Facilities).


 


“Eligible Deposit
Bank” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


“EMU”
means Economic and Monetary Union as contemplated in the Treaty on European
Union.


 


“EMU Legislation”
means legislative measures of the European Union for the introduction of,
changeover to or operation of the euro in one or more member states, being in part legislative
measures to implement the third stage of EMU.


 


“Encumbrance”
means:


 


(a)           a mortgage, charge,
pledge, lien, encumbrance or other security interest securing any obligation of
any person;


 


(b)           any arrangement under
which money or claims to, or the benefit of, a bank or other account may be
applied, set-off or made subject to a combination of accounts so as to effect
payment of sums owed or payable to any person; or


 


(c)           any other type of
agreement or preferential arrangement (including title transfer and retention
arrangements) having a similar effect.


 


21

















 


“Environment”
means living organisms including the ecological systems of which they form part and
the following media:


 


(a)           air (including air
within natural or man-made structures, whether above or below ground);


 


(b)           water (including
territorial, coastal and inland waters, water under or within land and water in
drains and sewers); and


 


(c)           land (including land
under water).


 


“Environmental Claim”
means any administrative, regulatory or judicial action, suit, demand, demand
letter, claim, notice of non-compliance or violation, investigation,
proceeding, consent order or consent agreement relating to any Environmental
Law or Environmental Licence.


 


“Environmental Law”
means all laws and regulations of any relevant jurisdiction which:


 


(a)           have as a purpose or
effect the protection of, and/or prevention of harm or damage to, the
Environment;


 


(b)           provide remedies or
compensation for harm or damage to the Environment; or


 


(c)           relate to Hazardous
Substances or health or safety matters.


 


“Environmental
Licence” means any Authorisations required at any time under
Environmental Law.


 


“Equity Equivalent
Funding” means a loan made to, or any Financial Indebtedness owed
by, any person where the Financial Indebtedness incurred thereby:


 


(a)           may not be
repaid at any time prior to the repayment in full of all Outstandings and
cancellation of all Available Commitments;


 


(b)           carries no interest
or carries interest which is payable only on non-cash pay terms or following
repayment in full of all Outstandings and cancellation of all Available
Commitments; and


 


(c)           is either (i) structurally
and contractually subordinated to the Facilities or (ii) contractually
subordinated to the Facilities, in each case, pursuant to the HYD Intercreditor
Agreement and/or the Group Intercreditor Agreement.


 


“Equity Proceeds”
means the cash proceeds raised by any member of the Group by way of equity
securities offerings in the international or domestic public equity capital
markets (after deducting all reasonable fees, commissions, costs and expenses
incurred by any member of the Group in connection with such raising) and which
do not constitute Debt Proceeds.


 


“ERISA”
means the U.S. Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and the rulings issued under it.
Section references to ERISA are to ERISA as in effect on the Original
Execution Date.


 


“ERISA Affiliate”
means, in relation to a member of the Bank Group, each person (as defined in section 3(9) of
ERISA) which together with that member of the Bank Group would be deemed to be
a “single employer” within the meaning of section 414(b), (c), (m) or (o)
of the Code.


 


22

















 


“EURIBOR”
means, in relation to any amount to be advanced to or owed by an Obligor under
this Agreement in euro on which interest for a given period is to accrue:


 


(a)           the rate per annum
for deposits in euro which appears on the Relevant Page for such period at
or about 11.00 am (Brussels time) on the Quotation Date for such period; or


 


(b)           if no such rate is
displayed and the Facility Agent shall not have selected an alternative service
on which such rate is displayed as contemplated by the definition of “Relevant
Page”, the arithmetic mean (rounded upwards, if not already such a multiple, to
5 decimal places) of the rates (as notified to the Facility Agent) at which
each of the Reference Banks was offering to prime banks in the European
Interbank Market deposits in euro for such period at or about 11.00 am
(Brussels time) on the Quotation Date for such period.


 


“Eurobond” means
one or more listed notes issued by the Company to the US Borrower after the
Original Execution Date either for cash subscription, in consideration of the
novation of debt obligations hereunder or in exchange for and satisfaction of
the Short Term Notes, as the same may be amended, supplemented, restated,
increased, replaced or otherwise modified from time to time as permitted under
this Agreement.


 


“European Interbank
Market” means the interbank market for euro operating in
Participating Member States.


 


“Event of Default”
means any of the events or circumstances described as such in Clause 27 (Events of Default).


 


“Excess Capacity
Network Service” means the provision of network services, or
agreement to provide network services, by a member of the Bank Group in favour
of one or more other members of the Group where such network services are only
provided in respect of the capacity available to such member of the Bank Group
in excess of that network capacity it requires to continue to provide current
services to its existing and projected future customers and to allow it to
provide further services to both its existing and projected future customers.


 


“Excess Cash Flow”
means in relation to any financial year of the Company, Bank Group Cash Flow
less (a) Consolidated Debt Service for such financial year, (b) the
aggregate amount of all payments or prepayments of principal, whether voluntary
or mandatory, of Consolidated Total Debt made in such financial year, (c) proceeds
from disposals permitted by Clause 25.6(i)(ii) (Disposals)
received during such financial year and (d) proceeds from any Content
Transaction or any Business Division Transaction received during such financial
year, provided that no such amounts prepaid and used in the calculation under
paragraph (b) shall be available for reborrowing and, provided further
that for the purposes of such calculation, no amount shall be included or
excluded more than once.


 


“Exchange Act”
means the US Securities Exchange Act of 1934, as amended.


 


“Exchange Notes”
means each of the securities issued in exchange for any of the loans
outstanding under the Bridge Facility or the Alternative Bridge Facility, as
the context may require, and including any indenture pursuant to which
they are issued.


 


“Excluded Group”
means each member of the Group which is not a member of the Bank Group.


 


“Excluded Group
Operating Cashflow” has the meaning ascribed to it in Clause 23.1 (Financial Definitions).


 


“Existing Baseball
Facilities” means the certain senior facilities agreement dated 2 July 2004
made between, amongst others, Baseball and Lloyds TSB Bank PLC as Original
Lender and as Agent (each as defined therein).


 


23

















 


“Existing Credit
Facilities” means the Existing NTL Senior Credit Facilities
Agreement, the Existing Telewest Senior Credit Facilities Agreement, the
Existing Telewest Second Lien Credit Facility Agreement and the Existing
Flextech Senior Credit Facilities Agreement.


 


“Existing
Encumbrance” means any Encumbrance existing as at the Original
Execution Date, details of which are set out in Part 1 of Schedule 10
(Existing Encumbrances).


 


“Existing Financial
Indebtedness” means the Financial Indebtedness existing as at the
Original Execution Date, details of which are set out in Part 3 of Schedule 10
(Existing Financial Indebtedness).


 


“Existing Flextech
Senior Credit Facilities Agreement” means that certain senior credit
facility agreement dated 10 May 2005 made between the Flextech Broadband
Limited and Flextech Broadcasting Limited as original borrowers, Barclays
Capital, BNP Paribas, Citigroup Global Markets Limited, Credit Suisse First
Boston, Deutsche Bank AG London and others as Arrangers, Barclays Bank PLC as
Agent and Security Trustee, the Original Guarantors and the financial and other
institutions named therein as Lenders (each as defined therein).


 


“Existing Hedging Agreements”
means the hedging agreements existing as at the Original Execution Date,
details of which are set out in Part 6 of Schedule 10 (Existing Hedging Agreements).


 


“Existing High Yield
Notes” means the Sterling denominated 9.75% senior notes due 2014,
the dollar denominated 8.75% senior notes due 2014 and the euro denominated
8.75% senior notes due 2014, in each case, issued by NTL Cable.


 


“Existing Loans”
means the loans granted by members of the Bank Group existing as at the
Original Execution Date, details of which are set out in Part 2 of Schedule 10
(Existing Loans).


 


“Existing NTL Senior
Credit Facilities Agreement” means that certain senior credit
facility dated 13 April 2004 made between NTL Incorporated as Ultimate
Parent, NTL Investment Holdings Limited as Borrower, Credit Suisse First
Boston, Deutsche Bank AG London, Goldman Sachs International, Morgan Stanley
Dean Witter Bank Limited and others as Mandated Lead Arrangers, Credit Suisse
First Boston as Facility Agent and Security Agent, GE Capital Structured
Finance Group Limited as Administrative Agent and the financial and other
institutions named therein as Lenders (each as defined therein).


 


“Existing
Performance Bonds” means each of the performance bonds or similar
obligations issued by members of the Bank Group existing as at the Original
Execution Date, details of which are set out in Part 4 of Schedule 10
(Existing Performance Bonds).


 


“Existing Telewest
Second Lien Credit Facility Agreement” means that certain second
lien facility agreement dated 21 December 2004 made between Telewest UK
Limited, Telewest Communications Network Limited, Telewest Global France LLC,
Barclays Capital, BNP Paribas, Citigroup Global Markets Limited, Credit Suisse
First Boston, Deutsche Bank AG London and others as Mandated Lead Arrangers,
Barclays Bank PLC as Facility Agent and Security Trustee, Barclays Bank PLC as
US Paying Agent, the Original Guarantors and the financial and other
institutions named therein as Lenders (each as defined therein).


 


“Existing Telewest
Senior Credit Facilities Agreement” means that certain senior credit
facility dated 21 December 2004 made between the Borrower, Barclays
Capital, BNP Paribas, Citigroup Global Markets Limited, Credit Suisse First
Boston, Deutsche Bank AG London and others as Mandated Lead Arrangers, Barclays
Bank PLC as Facility Agent and Security Trustee, Barclays Bank PLC as US Paying
Agent, GE Capital Structured Finance Group Limited as Administrative Agent, the
Original Guarantors and the financial and other institutions named therein as
Lenders (each as defined therein).


 


24

















 


“Existing UKTV Group
Loan Stock” means the loan stock and redeemable preference shares
issued by members of the UKTV Group, details of which are set out in Part 5
of Schedule 10 (Existing UKTV Group
Loan Stock).


 


“Existing Vendor
Financing Arrangements” means each of the existing finance leases
and vendor financing arrangements existing as at the date of the Agreement,
details of which are set out in Part 7 of Schedule 10 (Existing Vendor Financing Arrangements).


 


“Expiry Date”
means, in relation to any Documentary Credit granted under this Agreement, the
date stated in it to be its expiry date or the latest date on which demand may be
made under it being a date falling on or prior to the Final Maturity Date in
respect of the Revolving Facility.


 


“Facilities”
means the A Facility, the A1 Facility, the B Facility, the B1 Facility, the
Revolving Facility, any Ancillary Facility and any Documentary Credit granted
to the Borrowers under this Agreement, and “Facility”
means any of them, as the context may require.


 


“Facility Agent’s
Spot Rate of Exchange” means, in relation to 2 currencies, the
Facility Agent’s spot rate of exchange for the purchase of the first-mentioned
currency with the second-mentioned currency in the London foreign exchange
market at or about 11 a.m. on a particular day.


 


“Facility Office”
means the office notified by a Lender to the Facility Agent in writing on or
before the date it becomes a Lender or, following that date, (i) by not
less than five Business Days’ written notice as the office through which it
will perform its obligations under this Agreement where the office is
situated in Financial Action Task Force countries, or (ii) with the prior
written consent of the Facility Agent, an office through which it will perform its
obligations under this Agreement situated in non-Financial Action Task Force
countries.


 


“Fees Letters”
means the fees letters referred to in Clauses 16.2 (Arrangement
and Underwriting Fee), 16.3 (Agency Fee) and
16.5 (L/C Bank Fee).


 


“Final Maturity Date”
means:


 


(a)           in respect of the
Revolving Facility, the date falling 60 months after the Merger Closing Date;


 


(b)           in respect of the A
Facility and the A1 Facility, the date falling 60 months after the Merger
Closing Date; and


 


(c)           in respect of the B Facility and the B1 Facility, the date falling 78
months after the Merger Closing Date.


 


“Finance Documents”
means:


 


(a)           this Agreement, any
Documentary Credit, any Accession Notices and any Transfer Deeds;


 


(b)           the Fees Letters;


 


(c)           any Ancillary
Facility Documents;


 


(d)           the Security
Documents;


 


(e)           the Security Trust Agreement;


 


(f)            the
Group Intercreditor Agreement;


 


(g)           the
HYD Intercreditor Agreement;


 


25

















 


(h)           the Barclays Intercreditor Agreement;


 


(i)            the Hedging
Agreements entered into pursuant to Clause 24.9 (Hedging);


 


(j)            any other agreement
or document entered into or executed by a member of the Bank Group pursuant to
any of the foregoing documents; and


 


(k)           any other agreement
or document designated a “Finance Document”
in writing by the Facility Agent and the Company.


 


“Finance Lease”
means a lease treated as a capital or finance lease pursuant to GAAP.


 


“Finance Parties”
means the Agents, the Arrangers, the Bookrunners, the Security Trustee, the
Lenders and each Hedge Counterparty and “Finance
Party” means any of them.


 


“Financial Action
Task Force” means the Financial Action Task Force on Money Laundering,
an inter-governmental body, the purpose of which is the development and
promotion of policies, at both national and international levels, to combat
money laundering.


 


“Financial
Indebtedness” means, without double counting, any Indebtedness for
or in respect of:


 


(a)           moneys borrowed;


 


(b)           any amount raised by
acceptance under any acceptance credit facility;


 


(c)           any amount raised
pursuant to any note purchase facility or the issue of bonds, notes,
debentures, loan stock or any similar instrument (for the avoidance of doubt
excluding any loan notes or similar instruments issued solely by way of
consideration for the acquisition of assets in order to defer capital gains or
equivalent taxes where such loan notes or similar instruments are not issued
for the purpose of raising finance);


 


(d)           the principal portion
of any liability in respect of any Finance Lease;


 


(e)           receivables sold or
discounted (other than any receivables to the extent they are sold on a
non-recourse basis);


 


(f)            the amount of any
liability in respect of any purchase price for assets or services the payment
of which is deferred for a period in excess of 150 days in order to raise
finance or to finance the acquisition of those assets or services;


 


(g)           any amount raised
under any other transaction (including any forward sale or purchase agreement)
required to be accounted for as indebtedness in accordance with GAAP;


 


(h)           any derivative
transaction entered into in connection with protection against or benefit from
fluctuation in any rate or price (and, when calculating the value of any
derivative transaction, only the marked to market value shall be taken into
account, provided that for the purposes of Clause 27.5 (Cross Default), only the net amount not paid or which is
payable by the relevant member of the Group shall be included);


 


(i)            any amount raised
pursuant to any issue of shares which are expressed to be redeemable in cash
(other than redeemable shares in respect of which the redemption is prohibited
until after repayment in full of all Outstandings under the Facilities);


 


(j)            any counter-indemnity
obligation in respect of a guarantee, indemnity, bond, standby or documentary
letter of credit or any other instrument issued by a bank or financial or other
institution; or


 


26

















 


(k)           the amount of any
liability in respect of any guarantee or indemnity for the Financial
Indebtedness of another person referred to in paragraphs (a) to (j) above.


 


“Financial Officer”
means the Chief Financial Officer, the Deputy Chief Financial Officer, the Vice
President — Finance, the Controller or the Group Treasurer, in each case, of
the Company or of the Group, or any similar officer of the Company or of the
Group.


 


“Financial Quarter”
has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Financial Support
Direction” means a financial support direction issued by the
Pensions Regulator under Section 43 of the Pensions Act 2004.


 


“Fitch” means
Fitch Ratings or any successor thereof.


 


“Foreign Pension
Plan” means any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside
the United States of America by any member of the Group for the benefit of
employees of any member of the Group residing outside the United States of
America, which plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.


 


“Funded Excluded
Subsidiary” means, in respect of a Funding Passthrough, a Bank Group
Excluded Subsidiary or any person in which a member of the Bank Group owns an
interest but which is not a member of the Bank Group which:


 


(a)           indirectly receives
funding from a Bank Holdco; and/or


 


(b)           by way of dividend or
other distribution, loan or payment of interest on or the repayment of the
principal amount of any indebtedness owed by it, directly or indirectly, makes
a payment to a Bank Holdco.


 


“Funding Passthrough”
means a series of transactions between a Bank Holdco, one or more members
of the Bank Group and a Funded Excluded Subsidiary where:


 


(a)           in
the case of funding being provided by a Bank Holdco to the Funded Excluded
Subsidiary, that funding is:


 


(i)            first
made available by the Bank Holdco to (in the case of the Parent) the Company
or, one of its Subsidiaries (other than in the case of NTL Communications
Limited, the Parent or any of its Subsidiaries) by way of the subscription for
new securities, capital contribution or Subordinated Funding;


 


(ii)           secondly (if
relevant) made available by the recipient of the Funding Passthrough under (i) above,
to a member of the Bank Group (other than the Company) which may be followed
by one or more transactions between members of the Bank Group (other than the
Company) and finally made available by a member of the Bank Group (other than
the Company) to the Funded Excluded Subsidiary in all such cases by way of
either the subscription for new securities, the advancing of loans or capital
contribution; or


 


(b)           in
the case of a payment to be made by the Funded Excluded Subsidiary to a Bank
Holdco that payment is:


 


(i)            first
made by the Funded Excluded Subsidiary to a member of the Bank Group, and
thereafter is made between members of the Bank Group (as relevant), by way of


 


27

















 


dividend
or other distribution, loan or payment of interest on or the repayment of the
principal amount of any indebtedness owed by such Funded Excluded Subsidiary or
relevant member of the Bank Group; and


 


(ii)           finally made
by the Company to the Parent or by one of the Subsidiaries of NTL
Communications Limited (other than the Parent or any of its Subsidiaries) to NTL
Communications Limited by way of dividend or other distribution, loan or the
payment of interest on or the repayment of the principal amount of any loan
made by way of Subordinated Funding.


 


“GAAP” means accounting principles generally
accepted in the United States of America.


 


“Group”
means:


 


(a)           for the purposes of
Clause 22.1 (Financial Statements), Clause
22.3 (Budget) and Clause 23 (Financial Condition) and any other provisions in this
Agreement using the terms defined in Clause 23 (Financial Condition):


 


(i)            the Ultimate Parent
and its Subsidiaries from time to time;


 


(ii)           NTL South Herts, for so
long as a member of the Group is the general partner of South Hertfordshire
United Kingdom Fund, Ltd. or if it becomes a wholly-owned Subsidiary of the Group;
and


 


(b)           for
all other purposes, the Ultimate Parent and its Subsidiaries from time to time.


 


Group Business” means the provision of broadband and communications services,
including:


 


(a)           residential
telephone, mobile telephone, cable television and Internet services, including
wholesale Internet access solutions to Internet service providers;


 


(b)           data, voice and Internet services to large businesses, public sector
organisations and small and medium sized enterprises;


 


(c)           national and
international communications transport services to communications companies;
and


 


(d)           the provision of Content,


 


and any related ancillary or complementary business to
any of the services described above in the United Kingdom, the Isle of Man, the
Republic of Ireland and the Channel Islands provided that “Group Business” may include
the provision of any such services outside the United Kingdom, the Isle of Man,
the Republic of Ireland and the Channel Islands which constitute a non-material
part of the Group Business and which are acquired pursuant to an
acquisition permitted under the terms of this Agreement.


 


“Group Intercreditor
Agreement” means the intercreditor agreement dated on or about the
Merger Closing Date between, among others, certain of the Obligors, other members
of the Group and the Finance Parties.


 


“Group Structure
Chart” means:


 


(a)           as
at the Original Execution Date, the group structure charts relating to the
Telewest Group and the NTL Group, in each case, as constituted immediately
prior to the Merger Closing


 


28

















 


Date, which have been
delivered to the Facility Agent prior to the Original Execution Date; and


 


(b)           thereafter,
the group structure charts delivered to the Facility Agent pursuant to
paragraph 2 of Part 4 of Schedule 5 (Vanilla
Conditions Subsequent Documents) and
paragraph 2 of Part 6 of Schedule 4 (Baseball
Conditions Subsequent Documents) or any updated group structure
chart which is delivered to the Facility Agent pursuant to Clause 24.14 (Group Structure Chart) from time to time.


 


“Guaranteed Parent Debt”
has the meaning given to such term in paragraph (h) of Clause 25.4 (Financial Indebtedness).


 


“Guarantors”
means:


 


(a)           for the purposes of Clause 29 (Guarantee
and Indemnity), the Parent, the Original Guarantors and any Acceding
Guarantors; and


 


(b)           for the purposes of
any other provision of the Finance Documents, the Original Guarantors and any
Acceding Guarantors;


 


and “Guarantor”
means any one of them as the context requires, provided that in either case,
such person has not been released from its rights and obligations as a
Guarantor hereunder pursuant to Clause 43.7 (Release
of Guarantees or Security).


 


“Hazardous Substance”
means any waste, pollutant, contaminant or other substance (including any
liquid, solid, gas, ion, living organism or noise) that may be harmful to
human health or other life or the Environment.


 


“Hedge Counterparty”
means each Lender or Affiliate of a Lender which is a party to a Hedging
Agreement entered into for the purposes of Clause 24.9 (Hedging)
and “Hedge Counterparties” means
all such Lenders or Affiliates.


 


“Hedging Agreement”
means any agreement in respect of an interest rate swap, currency swap, forward
foreign exchange transaction, cap, floor, collar or option transaction or any
other treasury transaction or any combination of it or any other transaction
entered into in connection with protection against or benefit from fluctuation
in any rate or price.


 


“High Yield
Refinancing” means any Financial Indebtedness incurred for the
purposes of refinancing all or a portion of the Existing High Yield Notes
and/or the New High Yield Notes including any Financial Indebtedness incurred
for the purpose of the payment of all principal, interest, fees, expenses,
commissions, make-whole and any other contractual premium payable under the
Existing High Yield Notes and/or the New High Yield Notes, as the case may be,
being refinanced and any reasonable fees, costs and expenses incurred in
connection with such refinancing, in respect of which the following terms
apply:


 


(a)           the final maturity date or redemption date of such refinancing occurs on
or after the scheduled redemption date in respect of the high yield notes being
refinanced;


 


(b)           the average life of the High Yield Refinancing is not less than (or in
respect of a refinancing in part, is equal to) the remaining average life of
the high yield notes which are being refinanced, as at the time of such
refinancing; and


 


(c)           the Financial
Indebtedness constituted by any High Yield Refinancing is structurally
subordinated to the Facilities on a basis no less favourable to the Facilities
than the basis on


 


29

















 


which the Existing
High Yield Notes and/or the New High Yield Notes, as the case may be, are
subordinated to the Facilities.


 


“Holding Company”
of a company means a company of which the first-mentioned company is a
Subsidiary.


 


“HYD Intercreditor
Agreement” means the intercreditor agreement dated 13 April 2004
between certain of the Obligors, the Finance Parties and the indenture trustee
in respect of the Existing High Yield Notes as the same may otherwise be
amended, supplemented, novated or restated from time to time.


 


“Increased Cost”
means:


 


(a)           any reduction in the
rate of return from a Facility or on a Finance Party’s (or an Affiliate’s)
overall capital;


 


(b)           any additional or
increased cost; or


 


(c)           any reduction of any
amount due and payable under any Finance Document,


 


which is incurred or suffered by a Finance Party or any
of its Affiliates to the extent that it is attributable to that Finance Party
having agreed to make available its Commitment or having funded or performed
its obligations under any Finance Document.


 


“Indebtedness”
means any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or contingent
(including interest and other charges relating to it).


 


“Indemnifying Lender”
has the meaning set out in Clause 5.1(b) (Issue of
Documentary Credits).


 


“Information Memoranda”
means the Initial Information Memorandum and the Subsequent Information
Memorandum.


 


“Initial  Information Memorandum” means the
information memorandum dated October 2005 approved by the Company
concerning the Obligors which, at the request of the Company and on its behalf,
was prepared in relation to the Facilities and the business, assets, financial
condition and prospects of the Group and which has been made available by the
Mandated Lead Arrangers to selected banks and other institutions for the
purpose of syndicating the Facilities, as supplemented by the proxy statement
dated 31 January 2006 and delivered in connection with the Merger and the
Forms 10-K of the Ultimate Parent and NTL dated 28 February 2006.


 


“Initial Security
Documents” means the security documents listed in Part 4 of Schedule 4
(Vanilla Initial Security Documents).


 


“Instructing Group”
means:


 


(a)           before any
Utilisation of the Facilities under this Agreement, a Lender or group of
Lenders whose Available Commitments amount in aggregate to more than 662/3%
of the Available Facilities; and


 


(b)           thereafter, a Lender
or group of Lenders to whom in aggregate more than 662/3%
of the aggregate amount of the Outstandings are (or if there are no
Outstandings at such time, immediately prior to their repayment, were then)
owed,


 


in each case, calculated in accordance with the
provisions of Clause 43.9 (Calculation of
Consents).


 


30

















 


“Intellectual
Property Rights” means any patent, trade mark, service mark,
registered design, trade name or copyright or any license to use any of the
same.


 


“Interest” has the meaning ascribed to it in
Clause 23.1 (Financial Definitions).


 


“Interest Cover Ratio” has the meaning given to such term in
paragraph (b) of Clause 23.2 (Ratio).


 


“Interest Period”
means, save as otherwise provided in this Agreement, any of those periods
mentioned in Clause 14.1 (Interest Periods for Term
Facility Advances).


 


“Intra-Group
Services” means:


 


(a)           the
sale of programming or other Content by any member(s) of the Group to one or
more members of the Bank Group on arms’ length terms;


 


(b)           the
lease or sublease of office space, other premises or equipment on arms’ length
terms by one or more members of the Bank Group to one or more members of the
Group or by one or more members of the Group to one or more members of the Bank
Group;


 


(c)           the
provision or receipt of other services, facilities or other arrangements (in
each case not constituting Financial Indebtedness) in the ordinary course of
business, by or from one or more members of the Bank Group to or from one or
more members of the Group including, without limitation, (i) the
employment of personnel, (ii) provision of employee healthcare or other
benefits, (iii) acting as agent to buy equipment, other assets or services
or to trade with residential or business customers, and (iv) the
provision of audit, accounting, banking, IT, telephony, office, administrative,
compliance, payroll or other similar services provided that the consideration
for the provision thereof is, in the reasonable opinion of the Company, no less
than Cost; and


 


(d)           the
extension, in the ordinary course of business and on terms no less favourable
to the relevant member of the Bank Group than arms’ length terms, by or to any
member of the Bank Group to or by any such member of the Group of trade credit
not constituting Financial Indebtedness in relation to the provision or receipt
of Intra-Group Services referred to in paragraphs (a), (b) or (c) above.


 


“IRS Ruling”
means the private ruling from the US Internal Revenue Service being sought by
NTL the effect of which is to permit the cash portion of the purchase price for
the Merger to be financed through borrowings by members of the Group incorporated
in England & Wales without giving rise to materially adverse US tax
consequences to NTL, the Ultimate Parent or their respective shareholders
whether prior to or following the Merger.


 


“Joint Venture”
means any joint venture, partnership or similar arrangement between any member
of the Bank Group and any other person that is not a member of the Bank Group.


 


“Joint Venture Group”
means any Joint Venture and its subsidiaries from time to time (including upon
and following the Merger Closing Date, the UKTV Group).


 


“Law”
means:


 


(a)           common or customary
law;


 


(b)           any constitution,
decree, judgment, legislation, order, ordinance, regulation, statute, treaty or
other legislative measure in any jurisdiction; and


 


31

















 


(c)           any directive,
regulation, practice, requirement which has the force of law and which is
issued by any governmental body, agency or department or any central bank or
other fiscal, monetary, regulatory, self-regulatory or other authority or agency.


 


“L/C Bank”
means the Original L/C Bank and any other Lender which has been appointed as an
L/C Bank in accordance with Clause 5.11 (Appointment and Change of
L/C Bank) and which has not resigned in accordance with paragraph (c) of
Clause 5.11 (Appointment and Change of L/C Bank).


 


“L/C Bank Accession
Certificate” means a duly completed accession certificate in the form set
out in Schedule 11 (Form of L/C Bank
Accession Certificate).


 


“L/C Proportion”
means, in relation to a Lender in respect of any Documentary Credit and save as
otherwise provided in this Agreement, the proportion (expressed as a
percentage) borne by such Lender’s Available Revolving Facility Commitment to
the Available Revolving Facility immediately prior to the issue of such Documentary
Credit.


 


“Legal Opinions”
means any of the legal opinions referred to in paragraph 5 of Part 1 to Schedule 4
(Conditions Precedent to First Utilisation),
paragraph 6 of Part 2 to Schedule 4 (Conditions
Precedent to First Baseball Utilisation) and paragraph 2 of Part 2
to Schedule 7 (Accession Documents)
required to be delivered pursuant to Clause 3.1 (Vanilla
Conditions Precedent), Clause 3.2 (Baseball
Conditions Precedent) and Clause 26 (Acceding Group Companies), respectively.


 


“Lender” means a
person (including each L/C Bank and each Ancillary Facility Lender) which:


 


(a)           is named in Part 1
of Schedule 1 (Lenders and Commitments);
or


 


(b)           has become a party to
this Agreement in accordance with the provisions of Clause 37 (Assignments and Transfers),


 


which in each case has not ceased to be a party to
this Agreement in accordance with the terms of this Agreement.


 


“Leverage Ratio”
has the meaning given to such term in paragraph (a) of Clause 23.2 (Ratios).


 


“LIBOR”
means, in relation to any amount to be advanced to or owed by an Obligor under
this Agreement in a currency (other than euro) on which interest for a given
period is to accrue:


 


(a)           the rate per annum
which appears on the Relevant Page for such period at or about 11.00 a.m.
on the Quotation Date for such period; or


 


(b)           if no such rate is
displayed and the Facility Agent shall not have selected an alternative service
on which such rate is displayed as contemplated by the definition of “Relevant
Page”, the arithmetic mean (rounded upwards, if not already such a multiple, to
the nearest 5 decimal places) of the rates (as notified to the Facility Agent)
at which each of the Reference Banks was offering to prime banks in the London
interbank market deposits in the relevant currency for such period at or about
11.00 am on the Quotation Date for such period.


 


“Major Event of
Default” means an Event of Default arising under any of the
following provisions:


 


(a)           Clause 27.1 (Non-Payment);


 


(b)           Clause 27.2 (Covenants);


 


(c)           Clause 27.5 (Cross-Default);


 


(d)           Clause 27.6 (Insolvency);


 


32

















 


(e)           Clause 27.7 (Winding-Up);


 


(f)            Clause 27.8 (Execution or Distress);


 


(g)           Clause 27.9 (Similar Events);


 


(h)           Clause 27.10 (Repudiation);


 


(i)            Clause 27.11 (Illegality);


 


(j)            Clause 27.12 (Intercreditor Default); and


 


(k)           Clause 27.14 (Material Adverse Effect).


 


“Margin Stock”
shall have the meaning provided in Regulation U.


 


“Marketable
Securities” means any security which is listed on any publicly
recognised stock exchange and which has, or is issued by a company which has, a
capitalisation of not less than £1 billion (or its equivalent in other
currencies) as at the time such Marketable Securities are acquired by any
member of the Bank Group by way of consideration for any disposal permitted
under Clause 25.6 (Disposals).


 


“Material Adverse
Effect” means a material adverse change in:


 


(a)           the financial
condition, assets or business of the Obligors (taken as a whole); or


 


(b)           the ability of any
Obligor to perform and comply with its payment or other material
obligations under any Finance Document (taking into account the resources
available to such Obligor from any other member of the Bank Group).


 


“Material Subsidiary”
means, at any time, a member of the Bank Group whose contribution to
Consolidated Operating Cashflow (on a consolidated basis if it has
Subsidiaries) represents at least 5% of the Consolidated Operating Cashflow
calculated by reference to the most recent financial statements of the Bank
Group delivered pursuant to paragraph (b)(ii) of Clause 22.1 (Financial Statements).


 


“Maturing Advance”
has the meaning ascribed to it in Clause 8.2 (Rollover
Advances).


 


“Member State”
means a member of the European Community.


 


“Merger”
means the merger of NTL with Merger Sub pursuant to the terms and conditions of
the Merger Agreement and the reorganization, recapitalization and refinancing
of the Group in connection therewith in accordance with the Steps Paper.


 


“Merger Agreement”
means the agreement and plan of merger dated as of 2 October 2005 (as
amended and restated on 14 December 2005 and 30 January 2006) made
between NTL, the Ultimate Parent and the Merger Sub.


 


“Merger  Closing Date” means the date on which the
Merger is completed in accordance with, and subject to the terms and conditions
of the Merger Agreement.


 


“Merger Documents”
means the Merger Agreement (including the Company Disclosure Schedule and
the Parent Disclosure Schedule, each as defined therein, and attached thereto),
and all other documents and agreements executed or to be executed pursuant to
(or in connection with) the Merger Agreement and any other document designated
as a “Merger Document” by the Facility Agent and the Ultimate Parent.


 


33

















 


“Merger Indebtedness”
means Financial Indebtedness by the Ultimate Parent (or a newly incorporated
wholly-owned subsidiary of the Ultimate Parent) in an amount not exceeding the
equity value of the Telewest Group provided
that the proceeds of such Financial Indebtedness shall be
contributed by the Ultimate Parent (or the newly incorporated wholly-owned
subsidiary of the Ultimate Parent, as applicable) to one or more of its
Subsidiaries for the purpose of enabling such Subsidiaries to purchase the
historical Telewest business as part of an internal reorganisation of
subsidiaries of Telewest in accordance with the Steps Paper and provided further that such Financial
Indebtedness will be repaid by the Ultimate Parent (or such newly incorporated
wholly owned subsidiary of the Ultimate Parent) on the same day on which it is
incurred.


 


“Merger Sub”
means Neptune Bridge Borrower, LLC, a Delaware limited liability company, which
has been established for the purposes of the Merger in accordance with the
terms and conditions of the Merger Agreement.


 


“Moody’s”
means Moody’s Investor Services, Inc. or any successor thereof.


 


“Multiemployer Plan”
shall mean any multiemployer plan as defined in Section 4001(a)(3) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) any member of the Group or an ERISA Affiliate, and
each such plan for the five year period immediately following the latest date
on which any member of the Group or an ERISA Affiliate maintained, contributed
to or had an obligation to contribute to such plan.


 


“Necessary
Authorisations” means all Authorisations (including Environmental
Licences and any Authorisations issued pursuant to or any deemed Authorisations
under any Statutory Requirements) of any person including any government or
other regulatory authority required by applicable Law to enable it to:


 


(a)           lawfully enter into
and perform its obligations under the Finance Documents to which it is
party;


 


(b)           ensure the legality,
validity, enforceability or admissibility in evidence in England and, if
different, its jurisdiction of incorporation or establishment, of such Finance
Documents to which it is party; and


 


(c)           carry on its business
from time to time.


 


“Net Proceeds”
means:


 


(a)           any cash proceeds
received by any member of the Bank Group (including, when received, any cash
proceeds received by way of deferred instalment of purchase price or from the
sale of Cash Equivalent Investments or Marketable Securities acquired by any
member of the Bank Group in consideration for any Disposal as contemplated
under Clause 25.6 (Disposals))
in connection with any Disposal after deducting:


 


(i)            all taxes paid or
reasonably estimated by such member of the Bank Group to be payable by any
member of the Bank Group as a result of that Disposal;


 


(ii)           all reasonable fees,
commissions costs and expenses incurred by such member of the Bank Group in
arranging or effecting that Disposal, including, without limitation, any amount
required to be paid by any member of the Bank Group to any proprietor of any
intellectual property rights (not being a member of the Bank Group) (including
intellectual property licences) related to the assets disposed of where such
payment is on arms’ length terms and is required to enable such intellectual
property rights to be transferred with such assets to the extent necessary to
facilitate the applicable Disposal;


 


34

















 


(iii)         in the case of a Disposal effected by a member of
the Bank Group other than a Borrower, such provision as is reasonable for all
costs and taxes (after taking into account all available credits, deductions
and allowances) incurred by the Bank Group to a person other than a member of
the Bank Group and fairly attributable to up-streaming the cash proceeds to a
Borrower or making any distribution in connection with such proceeds to enable
them to reach a Borrower;


 


(iv)          any cash proceeds which are to be applied towards discharging any
Encumbrance over such asset; and


 


(v)            in the case of a
Disposal of a non-wholly-owned Subsidiary or Joint Venture, to the extent
received by any member of the Bank Group, any cash proceeds attributable to any
interest in such Subsidiary or Joint Venture owned by any person other than a
member of the Bank Group; and


 


(b)           the cash proceeds
received by any member of the Bank Group of any claim for loss or destruction
of or damage to the property of a member of the Bank Group under any insurance
policy after deducting any such proceeds relating to the third party claims which
are applied towards meeting such claims and any reasonable costs incurred in
recovering the same.


 


“New Equity”
means a subscription for capital stock of the Ultimate Parent or any other form of
equity contribution to the Ultimate Parent previously agreed by the Facility
Agent (acting reasonably) in writing, in each case, where such subscription or
contribution does not result in a Change of Control.


 


“New High Yield Notes” means the high yield
notes to be issued by the Parent pursuant to the New High Yield Offering, the
proceeds of which through steps outlined in the Steps Paper, are to be applied
to refinance all amounts outstanding under the Alternative Bridge Facility
Agreement and costs and expenses in relation thereto.


 


“New High Yield Offering” means the
offering of the New High Yield Notes by the Parent on a shelf registration
statement filed with the SEC (or, if a shelf registration is not available,
pursuant to an exemption from registration under the United States Securities
Act of 1933 including pursuant to Rule 144A and/or Regulation S of the
United States Securities Act of 1933, with SEC registration rights) (excluding
the issuance of the Exchange Notes).


 


“Non-Bank Group Serviceable Debt” means:


 


(a)           Financial Indebtedness arising under the Bridge Facility Agreement or
the Alternative Bridge Facility (or the Exchange Notes, as applicable) or the
New High Yield Notes, the Existing High Yield Notes or any High Yield
Refinancing;


 


(b)           Financial Indebtedness arising under any Guaranteed Parent Debt; and


 


(c)           any other Financial
Indebtedness which is raised by any member of the Group which is not a member
of the Bank Group, (i) where the Company has provided not less than 5
Business Days’ prior written notice to the Facility Agent designating such Financial
Indebtedness as Non-Bank Group Serviceable Debt, and (ii) the proceeds of
which are contributed into the Bank Group in accordance with the provisions of
Clause 24.15 (Contributions to the Bank
Group),


 


in the case of paragraph (c), to the extent only of
the principal amounts so designated at the relevant time and provided that any
Non-Bank Group Serviceable Debt shall thereafter at all times remain Non-Bank
Group Serviceable Debt.


 


35

















 


“Non-Bank Group UK Taxpayer”
means any company that is (a) a Subsidiary of the Ultimate Parent, (b) within
the charge to UK corporation tax, and (c) not a member of the Bank Group.


 


“Non-Consenting Lender”
is a Lender which does not agree to a consent to an amendment to, or a waiver
of, any provision of the Finance Documents where:


 


(a)           the
Company or the Facility Agent has requested the Lenders to consent to an
amendment to, or waiver, of any provision of the Finance Documents;


 


(b)           the
consent or amendment in question requires the agreement of all Lenders;


 


(c)           Lenders
representing not less than 80% of the Commitments or Outstandings, as the case may be,
have agreed to such consent or amendment; and


 


(d)           the
Company has notified the Lender it will treat it as a Non-Consenting Lender.


 


“Non-Funding Lender”
is either:


 


(a)           a Lender which fails to comply with its obligation to participate in any
Advance where:


 


(i)            all
conditions to the relevant Utilisation (including without limitation, delivery
of a Utilisation Request) have been satisfied or waived by an Instructing Group
(or with respect to the A1 Facility and the B1 Facility, a Baseball Instructing
Group) in accordance with the terms of this Agreement;


 


(ii)           Lenders
representing not less than 80% of the relevant Commitments have agreed to
comply with their obligations to participate in such Advance; and


 


(iii)         the
Company has notified the Lender that it will treat it as a Non-Funding Lender;
or


 


(b)           a
Lender which has given notice to a Borrower or the Facility Agent that it will
not make, or it has disaffirmed or repudiated any obligation to participate in,
an Advance.


 


“Notes” means
the Short Term Notes or the Eurobond as applicable.


 


“Notes Engagement Letter”
means the letter dated 3 March 2006 from the Bookrunners to NTL and the
Company in relation to the commitment of the Bookrunners to arrange and
underwrite the New High Yield Notes.


 


“NTL” means NTL Incorporated, a Delaware corporation, whose
registered office is at 1209 Orange Street, Wilmington, Delaware 19801, United
States of America.


 


“NTL Group” means NTL and its Subsidiaries from time to time. For
information purposes only, the members of the NTL Group as at the Original Execution Date are
listed in Part 3 of Schedule 9 (Members of the NTL Group).


 


“NTL South Herts”
means NTL (South Hertfordshire) Limited (formerly known as Cable &
Wireless Communications (South Hertfordshire) Limited), a company incorporated
in England & Wales with registered number 2401044.


 


“Obligors”
means the Borrowers and the Guarantors and “Obligor”
means any of them.


 


“Obligors’ Agent”
means the Company in its capacity as agent for the Parent and the Obligors
(other than the US Borrower), pursuant to Clause 30.18 (Obligors’
Agent).


 


36

















 


“Optional Currency”
means, in relation to any Advance, any currency other than euro, Dollars and
Sterling which:


 


(a)           is readily available
to banks in the London interbank market, and is freely convertible into
Sterling on the Quotation Date and the Utilisation Date for the relevant
Advance; and


 


(b)           has been approved by
the Facility Agent (acting on the instructions of all the Lenders) on or prior
to receipt by the Facility Agent of the relevant Utilisation Request.


 


“Original Execution Date”
means 3 March 2006.


 


“Original Financial
Statements” means:


 


(a)           in
relation to NTL the audited consolidated financial statements of the NTL Group
for the financial year ended 31 December 2005; and


 


(b)           in
relation to the Ultimate Parent, the audited consolidated financial statements
of the Telewest Group for the financial year ended 31 December 2005.


 


“Original Guarantor”
means each of the companies and partnerships listed in Part 1 of Schedule 2
(The  Original
Guarantors), which in each case has not ceased to be a party to this
Agreement in accordance with the terms of this Agreement.


 


“Original Obligors”
means the UK Borrowers, the US Borrower and the Original Guarantors


 


“Outstanding L/C
Amount” means:


 


(a)           each sum paid or
payable by an L/C Bank to a Beneficiary pursuant to the terms of a Documentary
Credit; and


 


(b)           all liabilities,
costs (including, without limitation, any costs incurred in funding any amount
which falls due from an L/C Bank under a Documentary Credit), claims, losses
and expenses which an L/C Bank (or any of the Indemnifying Lenders) incurs or
sustains in connection with a Documentary Credit,


 


in each case which has not been reimbursed or in
respect of which cash cover has not been provided by or on behalf of a relevant
Borrower.


 


“Outstandings”
means, at any time, the Term Facility Outstandings, the Revolving Facility
Outstandings and any Ancillary Facility Outstandings.


 


“Parent Debt”
means any Financial Indebtedness of the Ultimate Parent or one or more of its
Subsidiaries (other than a member of the Bank Group).


 


“Parent Intercompany
Debt” means any Financial Indebtedness owed by any member of the
Bank Group to the Ultimate Parent or to its Subsidiaries (other than another
member of the Bank Group) from time to time which is subordinated to the
Facilities pursuant to the terms of the Group Intercreditor Agreement.


 


“Participating
Employers” means the Company and any members of the Group which
participate or have at any time participated in a UK Pension Scheme.


 


“Participating
Member State” means any member of the European Community that at the
relevant time has adopted the euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary Union.


 


37

















 


“PBGC” means
the Pension Benefit Guaranty Corporation established pursuant to section 4002
of ERISA, or any successor to it.


 


“Pensions Regulator”
means the body corporate established under Part 1 of the Pensions Act
2004.


 


“Permitted Auditors”
means any of Pricewaterhouse Coopers, Ernst & Young, Deloitte &
Touche or KPMG or any of their respective successors or any other
internationally recognised firm of accountants.


 


“Permitted Holders”
shall mean any person who, together with any of its Affiliates, is the “beneficial
owner” (as defined in Rule 13d-3 and 13d-5 under the Exchange Act) of 5%
or more of the outstanding Voting Stock of the Ultimate Parent on the Original
Execution Date or becomes such a holder as a result of the Baseball Acquisition
or the Alternative Baseball Acquisition and any Affiliates of such persons from
time to time.


 


“Permitted Joint Ventures”
means any Joint Venture permitted under Clause 25.9 (Joint
Ventures) that the Company designates as such by giving notice in
writing to the Facility Agent.


 


“Permitted Payments”
means:


 


(a)           the payment of any
dividend, payment, loan or other distribution, or the repayment of a loan or
the redemption of loan stock or redeemable equity made, at any time, to fund
the payment of expenses (including taxes and the buy back of stock from
employees) by any member of the Group the aggregate amount of such payments
being no greater than (i) £50
million (or its equivalent) for the period from the Merger Closing Date
to the first anniversary thereof, (ii) £50 million (or its equivalent) for
the period from the first anniversary of the Merger Closing Date to the second
anniversary of the Merger Closing Date, or (iii) thereafter
£35 million (or its equivalent) in each anniversary year;


 


(b)           the payment of any dividend, payment, loan or other distribution, or the
repayment of a loan, or the redemption of loan stock or redeemable equity, in
each case, which is required in order to facilitate the making of payments by
any member of the Group and to the extent required:


 


(i)            by the terms of the Finance Documents;


 


(ii)           by
the terms of the Bridge Finance Documents, the Exchange Notes, the Existing
High Yield Notes, the New High Yield Notes, any High Yield Refinancing (or in
each case, any guarantee of the obligations thereunder) to the extent such
payment is permitted or not prohibited by the terms of the HYD Intercreditor
Agreement or other applicable intercreditor agreement, other than any payments
in relation to any fees, costs, expenses, commissions or other payments required
to be made in respect of any amendment, consent or waiver in respect thereof;


 


(iii)         by
the terms of any Guaranteed Parent Debt;


 


(iv)          by
the terms of any agreements for Financial Indebtedness which constitutes
Non-Bank Group Serviceable Debt falling within paragraph (c) of the
definition thereof;


 


(v)            by
the terms of any Hedging Agreement entered into by a member of the Group
relating to currency or interest rate hedging of Financial Indebtedness
referred to in sub-paragraphs (i) to (iv) above and which is not
entered into for investment or speculative purposes;


 


(vi)          by
the purposes of implementing the steps expressly contemplated by the Steps
Paper;


 


38

















 


(vii)         by the purposes of implementing any Content Transaction or Business
Division Transaction;


 


(viii)        by the terms of the Notes;


 


(ix)          by
the terms of any Subordinated Funding to the extent required to facilitate any
Permitted Payments,


 


where, in the case of
sub-paragraphs (i) to (ix), the payment under the relevant indebtedness or
obligation referred to therein has fallen due or will fall due within five
Business Days of such Permitted Payment being made;


 


(c)           any payment of any dividend, payment, loan or other distribution, or the
repayment of a loan, or the redemption of loan stock or redeemable equity made
to any member of the Group (other than a member of the Bank Group), provided that:


 


(i)            an amount equal to
such payment is promptly re-invested by such member of the Group (other than
the Bank Group) into a member of the Bank Group;


 


(ii)           the aggregate
principal amount of such payments and re-invested amounts on any day does not
exceed £50 million (or its
equivalent in other currencies); and


 


(iii)         to the extent any such payments are made in cash, any re-invested
amounts are also made in cash;


 


(d)           any
payment of any dividend, payment, loan or
other distribution, or the repayment of a loan, or the redemption of loan stock
or redeemable equity made in order to enable payments of
dividends or distributions by the Ultimate
Parent to its shareholders or the repurchase of capital stock of the Ultimate
Parent:


 


(i)            in
an amount of up to £10 million per annum plus, at any time after 1 January 2007,
an additional amount per annum, up to the maximum amount specified below
determined by reference to the Leverage Ratio immediately prior to the
declaration of such dividend or the making of such payment, loan or other
distribution (calculated on a pro forma basis after giving effect to such
payment) in accordance with the following table:


 


	
  Leverage Ratio

  	
   

  	
  Maximum Amount Per

  Annum

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  3.5 x but less than or equal to 4.5 x

  	
   

  	
  £

  	
  25 million

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  3.0 x but less than or equal to 3.5 x

  	
   

  	
  £

  	
  50 million

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than or
  equal to 3.0 x

  	
   

  	
  No Limit

  	
   

  
						



 


(ii)           in
an amount of up to £200 million from the cash proceeds of a Content
Transaction; and


 


(iii)         in
an amount of up to £200 million from the cash proceeds of a Business Division
Transaction provided that the Leverage Ratio immediately prior to the
declaration of such dividend or the making of such payment, loan or other
distribution is less than 4.0:1,


 


39

















 


in each case,
provided always that no Event of Default has occurred or is continuing or would
result following such payment;


 


(e)           any
payments made pursuant to and in accordance with the Tax Cooperation Agreement
provided that a copy of the certification or filings referred to in
clause 5 of the Tax Cooperation Agreement, as the case may be, shall
have been provided to the Facility Agent not less than five Business Days
before such payment is to be made;


 


(f)            the
payment of preference distributions in accordance with the terms and conditions
of the outstanding redeemable preference shares of Sit-up provided that the
aggregate amount of all such preference distributions paid in any financial
year shall not exceed £1,000 and any payment with respect to the purchase or
redemption by any member of the Group of all or any portion of the outstanding
redeemable preference shares of Sit-up pursuant to the terms of the Sit-up
Acquisition Documents (including any such payment as may be permitted
under the articles of association of Sit-up); or


 


(g)           any
payment of any dividend, payment, loan or other distribution, or the repayment
of a loan, or the redemption of loan stock or redeemable equity made pursuant
to an Asset Passthrough or a Funding Passthrough, in each case, funded solely
from cash generated by entities outside of the Bank Group.


 


“Plan”
means any pension plan as defined in section 3(2) of ERISA, which (i) is
maintained or contributed to by (or to which there is an obligation to
contribute by) any member of the Group or an ERISA Affiliate, and each such
plan for the 5 year period immediately following the latest date on which any
member of the Group or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan and (ii) is subject to ERISA, but
excluding any Multiemployer Plan.


 


“Project Company”
means a Subsidiary of a company (or a person in which such company has an
interest) which has a special purpose and whose creditors have no recourse to
any member of the Bank Group in respect of Financial Indebtedness of that
Subsidiary or person, as the case may be, or any of such Subsidiary’s or
person’s Subsidiaries (other than recourse to such member of the Bank Group who
had granted an Encumbrance over its shares or other interests in such Project
Company beneficially owned by it provided that such recourse is limited to an enforcement
of such an Encumbrance).


 


“Proportion”
in relation to a Lender, means:


 


(a)           in relation to an
Advance to be made under this Agreement, the proportion borne by such Lender’s
Available Commitment in respect of the relevant Facility, the relevant Borrower
and the relevant currency to the relevant Available Facility;


 


(b)           in relation to an
Advance or Advances outstanding under this Agreement, the proportion borne by
such Lender’s share of the Sterling Amount of such Advance or Advances to the
total Sterling Amount thereof;


 


(c)           if paragraph (a) does
not apply and there are no Outstandings, the proportion borne by the aggregate
of such Lender’s Available Commitment to the Available Facilities (or if the
Available Facilities are then zero, by its Available Commitment to the
Available Facilities immediately prior to their reduction to zero); and


 


(d)           if paragraph (b) does not apply and
there are any Outstandings, the proportion borne by such Lender’s share of the
Sterling Amount of the Outstandings to the Sterling Amount of all the
Outstandings for the time being.


 


40

















 


“Protected Party”
means a Finance Party or any Affiliate of a Finance Party which is or will be,
subject to any Tax Liability in relation to any amount payable under or in
relation to a Finance Document.


 


“Qualifying UK
Lender” means in relation to a payment of interest on a
participation in an Advance to a UK Borrower, a Lender which is:


 


(a)                                  a UK Bank Lender;


 


(b)                                  a UK Non-Bank Lender; or


 


(c)                                  a UK Treaty Lender.


 


“Quarter Date”
has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


“Quotation Date”
means, in relation to any currency and any period for which an interest rate is
to be determined:


 


(a)                                  if the relevant currency is Sterling, the first day of that period;


 


(b)                                  if the relevant currency is euro, 2 TARGET Days before the first day of
that period; or


 


(c)                                  in relation to any other currency, 2 Business Days before the first day
of that period,


 


provided that if market practice differs in the
Relevant Interbank Market for a currency, the Quotation Date for that currency
will be determined by the Facility Agent in accordance with market practice in
the Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day, the
Quotation Date will be the last of those days).


 


“Redemption Consideration”
means the $16.25 cash consideration payable in respect of each of the Ultimate
Parent’s common stock that the Ultimate Parent’s shareholders will receive in
the Merger.


 


“Reference Banks”
means the principal London offices of Barclays Bank plc, Citigroup and The Bank
of New York or such other bank or banks as may be appointed as such by the
Facility Agent after consultation with the Company.


 


“Regulation T”
shall mean Regulation T of the Board of Governors of the Federal Reserve System
as from to time in effect and any successor to all or any portion thereof.


 


“Regulation U”
shall mean Regulation U of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof.


 


“Regulation X”
shall mean Regulation X of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or any portion thereof.


 


“Relevant Interbank
Market” means, in relation to euro, the European Interbank Market
and in relation to any other currency, the London interbank market therefor.


 


“Relevant Page”
means the page of the Reuters or Telerate screen on which is displayed in
relation to LIBOR, BBA LIBOR for the relevant currency, or, in relation to EURIBOR,
the European offered rates for euro, or, if such page or service shall
cease to be available, such other page or service which displays the
London interbank offered rates for the relevant currency as the Facility Agent,
after consultation with the Lenders and the Company, shall select.


 


41

















 


“Relevant Tax
Jurisdiction” means:


 


(a)                                  the United Kingdom, in relation to a UK Borrower;


 


(b)                                  the United States of America, in relation to
the US Borrower; and


 


(c)                                  any jurisdiction in which any person is liable to tax by reason of its
domicile, residence, place of management or other similar criteria (but not any
jurisdiction in respect of which that person is liable to tax by reason only of
its having a source of income in that jurisdiction).


 


“Renewal Request”
means, in relation to a Documentary Credit, a Utilisation Request therefor, in
respect of which the proposed Utilisation Date stated in it is the Expiry Date
of an existing Documentary Credit and the proposed Sterling Amount is the same
or less than the Sterling Amount of that existing Documentary Credit.


 


“Repayment Date”
means:


 


(a)                                  in relation to any Revolving Facility Advance, the last day of its Term;


 


(b)                                  in respect of the A Facility Outstandings and the A1 Facility
Outstandings, each of the dates specified in Clause 9.1 (Repayment of
A Facility Outstandings and A1 Facility Outstandings) as a Repayment
Date in respect of the relevant Term Facility Outstandings, and


 


(c)                                  in respect of the B Facility Outstandings and the B1 Facility
Outstandings, the relevant Final Maturity Date,


 


provided that if any such day is not a Business Day in
the relevant jurisdiction for payment, the Repayment Date will be the next
succeeding Business Day in the then current calendar month (if there is one) or
the preceding Business Day (if there is not).


 


“Repayment
Instalment” means, in respect of the A Facility Outstandings and the
A1 Facility Outstandings, the amounts required to be paid by way of repayment
on each Repayment Date, as specified in Clause 9.1 (Repayment of
A Facility Outstandings and A1 Facility Outstandings), as an A
Facility Repayment Instalment or an A1 Facility Repayment Instalment (as
applicable).


 


“Repeating
Representations” means the representations and warranties set out in
Clauses 21.2 (Due Organisation), 21.5 (No Immunity), 21.6 (Governing
Law and Judgments), 21.7 (All Actions Taken),
21.9 (Binding Obligations), 21.10 (No Winding Up), 21.11 (No
Event of Default), 21.18 (Execution of Finance
Documents), 21.27 (Investment Company Act), 21.28 (Margin Stock), 21.34 (US
Patriot Act) and 21.36 (Compliance with ERISA).


 


“Reservations”
means:


 


(a)                                  the principle that equitable remedies are remedies which may be
granted or refused at the discretion of the court, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and other laws
generally affecting the rights of creditors, the time barring of claims under
any applicable law, the possibility that an undertaking to assume liability for
or to indemnify against non-payment of any stamp duty or other tax may be
void, defences of set-off or counterclaim and similar principles;


 


(b)                                  anything analogous to any of the matters set out in paragraph (a) above
under any laws of any applicable jurisdiction;


 


(c)                                  the reservations in or anything disclosed by any of the Legal Opinions;


 


42

















 


(d)                                  any circumstance arising through a failure to obtain any consent from
the lenders under the Existing Credit Facilities or the Existing Baseball
Facilities to (i) the execution of the Finance Documents, (ii) the
exercise of any rights or the performance of any obligations under the Finance
Documents or (iii) any other matter contemplated by the Finance Documents;
and


 


(e)                                  any circumstance arising through a failure to obtain any consent from
any lessor, licensor or other counterparty whose consent is required to the
grant of any Security over any lease, licence or other agreement or contract on
or before the execution of a Security Document.


 


“Restricted
Guarantors” means:


 


(a)                                  each of the Original Guarantors listed in Part 2 of Schedule 2
(The Restricted
Guarantor); and


 


(b)                                  any other Guarantor that accedes to this Agreement pursuant to Clause
26.2 (Acceding Guarantors), which is (i) incorporated,
created or organised under the laws of the United States of America or any
State of the United States of America (including the District of Columbia) and
is a “United States person” (as defined in Section 7701(a)(30) of the
Code); or (ii) treated for US federal income tax purposes as a disregarded
entity that is a branch of a Guarantor described in sub-paragraph (b)(i) hereof.


 


“Restricted Party”
means any person listed in the Annex to the Executive Order referred to in the
definition of “Anti-Terrorism Laws” or on the “Specially Designated Nationals
and Blocked Persons” list maintained by the Office of Foreign Assets Control of
the United States Department of the Treasury;


 


“Revolving Facility”
means the revolving loan facility (including any Ancillary Facility and the
Documentary Credit facility) granted to the relevant Borrower pursuant to
Clause 2.1(d) (The Facilities).


 


“Revolving Facility
Instructing Group” means:


 


(a)                                  before any Utilisation of the Revolving Facility under this Agreement, a
Lender or group of Lenders whose Available Revolving Facility Commitments
amount in aggregate to more than 662/3% of the Available
Revolving Facility; and


 


(b)                                  thereafter, a Lender or group of Lenders to whom in aggregate more than
662/3% of the aggregate amount of the Revolving Facility
Outstandings are (or if there are no Revolving Facility Outstandings at such
time, immediately prior to their repayment, were then) owed,


 


in each case calculated in accordance with the
provisions of Clause 43.9 (Calculation
of Consents).


 


“Revolving Facility
Margin” means, in relation to Revolving Facility Advances and
subject to Clause 13.3 (Margin Ratchet for
Revolving Facility Advances), 1.875% per annum.


 


“Revolving Facility
Outstandings” means, at any time, the aggregate outstanding amount
of each Revolving Facility Advance and of each Outstanding L/C Amount.


 


“Rollover Advance”
has the meaning ascribed to it in Clause 8.2 (Rollover
Advances).


 


“Screenshop”
means Screenshop Limited, a company incorporated under the laws of England and
Wales with registered number 3529106.


 


“Screenshop Intra-Group
Loan Agreement” means the loan agreement dated 10 May 2005
between Screenshop and Flextech Broadband Limited.


 


43

















 


“SEC” means the
United States Securities and Exchange Commission.


 


“Security”
means the Encumbrances created or purported to be created pursuant to the
Security Documents.


 


“Security Documents”
means:


 


(a)                                  each of the Initial Security Documents and the Subsequent Security
Documents;


 


(b)                                  any security documents required to be delivered by an Acceding Obligor
pursuant to Clauses 26.1 (Acceding Borrowers)
and 26.2 (Acceding Guarantors);


 


(c)                                  any other document executed at any time by any member of the Group
conferring or evidencing any Encumbrance for or in respect of any of the
obligations of the Obligors under this Agreement whether or not specifically
required by this Agreement; and


 


(d)                                  any other document executed at any time pursuant to Clause 24.12 (Further Assurance) or any similar covenant in any of the
Security Documents referred to in paragraph (a) to (d) above.


 


“Security Trust
Agreement” means that certain security trust agreement dated on or
about the Merger Closing Date made between the Security Trustee and the Lenders
and relating to the appointment of the Security Trustee as trustee of the
Security.


 


“Senior Fees Letter”
means the letter dated 3 March 2006 from the Bookrunners to NTL and the
Company in relation to the fees payable to the Bookrunners for arranging and
underwriting the Facilities.


 


“Short Term Notes”
means the notes to be issued by the Company to the US Borrower after the first
Utilisation of the B1 Facility hereunder.


 


“Sit-up” means
sit-up Limited, a company incorporated under the laws of England and Wales with
registered number 3877786 and having its registered office at 179-181 The Vale,
Acton, London  W3 7RW.


 


“Sit-up Acquisition
Documents” means each of:


 


(a)                                  the share purchase deed between Screenshop and Alpine Situp LLC for the
sale of 1,991,841 preference shares and 565,919 warrants to subscribe for
ordinary shares in the capital of Sit-up, dated 23 March 2005;


 


(b)                                  the offer document dated on or about 10 May 2005 which describes
the terms and conditions of the recommended offer made by Screenshop to
purchase the issued and to be issued shares of Sit-up;


 


(c)                                  the share purchase agreement between Screenshop, John Egan, Ashley Faull
and Christopher Manson dated on or around 10 May 2005;


 


(d)                                  the subscription agreement between the Sit-up, Screenshop, Flextech
Broadband Limited, John Egan, Ashley Faull and Christopher Manson entered into
on or about 10 May 2005; and


 


(e)                                  and any other document designated as an “Sit-up Acquisition Document” in
writing to the Facility Agent by the Company.


 


“Solvent” and “Solvency” mean, with respect to any US Obligor on a
particular date, that on such date (a) the value of the property of such
US Obligor (both at present and present fair and present fair


 


44

















 


sales value) is greater than the total amount of
liabilities, including, without limitation, contingent and unliquidated
liabilities, of such US Obligor as such liabilities mature, (b) such
person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such person’s ability to pay such debts and liabilities as
they mature and (c) such US Obligor is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such person’s property would constitute an unreasonably small capital. The
amount of contingent and unliquidated liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.


 


“Solvent Liquidation”
has the meaning given to such term in Clause 25.20 (Solvent
Liquidation).


 


“Stand Alone Baseball
Financing” means Financial Indebtedness which is incurred either:


 


(a)                                  following the cancellation of the A1 Facility and the B1 Facility, for
the purposes set out in paragraph (b) of Clause 2.3 (Purposes);
or


 


(b)                                  for the purposes of refinancing the Total Baseball Debt,


 


provided that in each case:


 


(i)                                    the aggregate principal amount of such Financial Indebtedness does not
exceed £500 million;


 


(ii)                                the annual interest expense of such Financial Indebtedness is no greater
than the interest expense payable under an equivalent principal amount of A1
Facility or B1 Facility which is cancelled in accordance with Clause 10.1
(Voluntary Cancellation) or (as
applicable) an equivalent principal amount of the Total Baseball Debt being
prepaid;


 


(iii)                            immediately prior to the incurrence of such Financial Indebtedness, the
Bank Group is in compliance with the financial covenants set out in
Clause 23.2 (Ratios);


 


(iv)                               no creditor in respect of such Financial Indebtedness shall at any time
have any recourse to any member of the Bank Group;


 


(v)                                   such Financial Indebtedness may benefit from guarantees and first
priority security over the assets of members of the Baseball Group but not any
member of the Bank Group;


 


(vi)                               following consummation of the Stand Alone Baseball Financing any
transactions entered into between the Bank Group and the Baseball Group shall
be subject to the provisions of Clause 25.10 (Transactions
with Affiliates); and


 


(vii)                           any such Stand Alone Baseball Financing is completed by 31 December 2006.


 


“Standard &
Poor’s” means Standard & Poor’s Ratings Group or any
successor thereof.


 


“Statutory
Requirements” means any applicable provision or requirement of any
Act of Parliament (including without limitation, the Communications Act 2003
and the Broadcasting Acts 1990 and 1996) or any instrument, rule or order
made under any Act of Parliament or any regulation or by-law of any local or
other competent authority or any statutory undertaking or statutory company
which has jurisdiction in relation to the carrying out, use, occupation,
operation of the properties or the businesses of any member of the Bank Group
carried out thereon.


 


45

















 


“Sterling Amount”
means at any time:


 


(a)                                  in relation to an Advance denominated in Sterling, the amount thereof,
and in relation to any other Advance, the Sterling equivalent of the amount
specified in the Utilisation Request (as at the date thereof) for that Advance,
in each case, as adjusted, if necessary, in accordance with the terms of this
Agreement and to reflect any repayment, consolidation or division of that
Advance;


 


(b)                                  in relation to a Documentary Credit, (i) if such Documentary Credit
is denominated in Sterling, the Outstanding L/C Amount in relation to it at
such time or (ii) if such Documentary Credit is not denominated in
Sterling, the equivalent in Sterling of the Outstanding L/C Amount at such
time, calculated as at the later of (1) the date which falls
2 Business Days before its issue date or any renewal date or (2) the
date of any revaluation pursuant to Clause 5.3 (Revaluation
of Documentary Credits);


 


(c)                                  in relation to any Ancillary Facility granted by a Lender, the amount of
its Revolving Facility Commitment converted to provide its Ancillary Facility
Commitment as at the time of such conversion; and


 


(d)                                  in relation to any Outstandings, the aggregate of the Sterling Amounts
(calculated in accordance with paragraphs (a), (b) and (c) above) of
each outstanding Advance and/or Outstanding L/C Amount, made under the relevant
Facility or Facilities (as the case may be) and/or in relation to
Ancillary Facility Outstandings, (i) if such Outstandings are denominated
in Sterling, the aggregate amount of it at such time and (ii) if such
Outstandings are not denominated in Sterling, the Sterling equivalent of the
aggregate amount of it at such time.


 


“Steps Paper”
means the alternative papers entitled “Steps Plan: Version
 1 – Combination of NTL, Telewest and Virgin Mobile before Structures 1
and 2” and “Steps Plan: Version 2 –
Combination of NTL, Telewest and Virgin Mobile after Structures 1 and 2”, in
each case,  as agreed between
NTL and the Bookrunners setting out the restructuring steps affecting the
Telewest Group and NTL Group occurring prior to, on and following the Merger
Closing Date.


 


“Structure Notice”
means the structure notice delivered by NTL and the Company to the Bookrunners,
in accordance with the provisions of the Original Agreement, pursuant to which
NTL and the Company elect to implement the restructuring steps referred to in
the Steps Paper as “Post-Combination
Restructuring - Second Alternative (Structure 2)”.


 


“Structuring Completion
Date” means the date falling 3 months after the Merger Closing Date.


 


“Structuring Date”
means the date proposed in the Structure Notice as the date on which the
relevant restructuring steps referred to in the Steps Paper as “Post-Combination Restructuring -  Second
Alternative (Structure 2)” are to be effected, which shall be a date
falling no later than the Structuring Completion Date and shall be no less than
4 Business Days after the date of the Structure Notice.


 


“Subordinated
Funding” means any loan made to any Obligor by any member of the
Group, that is not an Obligor which:


 


(a)                                  constitutes Parent Intercompany Debt;


 


(b)                                  is an intercompany loan arising under the arrangements referred to in
paragraph (c) of the definition of “Permitted Payments”;


 


(c)                                  is an intercompany loan existing as at the Original Execution Date
(including any inter-company loan the benefit of which has, at any time after
the Original Execution Date, been


 


46

















 


assigned to any other
member of the Group, where such assignment is not otherwise prohibited by this
Agreement); or


 


(d)                                  constitutes Equity Equivalent Funding,


 


provided that, the relevant debtor and creditor are
party to the Group Intercreditor Agreement as an Intergroup Debtor or
Intergroup Creditor (as such terms are defined in the Group Intercreditor
Agreement), respectively, or where the relevant debtor and creditor are party
to such other subordination arrangements as may be satisfactory to the
Facility Agent, acting reasonably.


 


“Subscriber”
means any person who has entered into an agreement (which has not expired or
been terminated) with an Obligor to be provided with services by an Obligor
through the operation of telecommunications and/or television systems operated
by the Bank Group in accordance with applicable Telecommunications, Cable and
Broadcasting Laws (including any part of such system and all
modifications, substitutions, replacements, renewals and extensions made to
such systems).


 


“Subsequent Information
Memorandum” means the Initial Information Memorandum updated to
reflect any changes to the terms of the Facilities made since October 2005,
the Baseball Acquisition and the business, assets, financial condition and
prospects of the Baseball Group.


 


“Subsequent Security
Documents” means the security documents listed in paragraph 4 of Part 6
of Schedule 4 (Baseball Conditions
Subsequent Documents).


 


“Subsidiary”
of a company shall be construed as a reference to:


 


(a)                                  any company:


 


(i)                                    more than 50% of the issued share capital or membership interests of
which is beneficially owned, directly or indirectly, by the first-mentioned
company; or


 


(ii)                                where the first-mentioned company has the right or ability to control
directly or indirectly the affairs or the composition of the board of directors
(or equivalent of it) of such company; or


 


(iii)                            which is a Subsidiary of another Subsidiary of the first-mentioned
company; or


 


(b)                                  for the purposes of Clause 22 (Financial
Information) and Clause 23 (Financial
Condition) and any provision of this Agreement where the financial
terms defined in Clause 23 (Financial
Condition) are used,  any
legal entity which is accounted for under applicable GAAP as a Subsidiary of
the first-mentioned company.


 


“Successful
Syndication” has the meaning given to it in the Senior Fees Letter.


 


“Syndication Date”
means the date specified by the Bookrunners (and notified to the Facility Agent
and the Company) as the day on which Successful Syndication has occurred.


 


“Takeover Code”
means the City Code on Takeovers and Mergers as administered by the Takeover
Panel.


 


“Takeover Panel”
means the Panel on Takeovers and Mergers.


 


“TARGET Day”
means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer payment system is open for the settlement of payments in euro.


 


“Tax Cooperation Agreement”
means the agreement to be entered into following the Original Execution Date
between the Ultimate Parent, the Company and TCN
relating to arrangements in


 


47

















 


connection with, amongst other things, the payment of
US taxes in form and substance agreed with the Facility Agent and the
Mandated Lead Arrangers.


 


“Tax Credit”
means a credit against, relief or remission for, or repayment of any tax.


 


“Tax Deduction”
means a deduction or withholding for or on account of tax from a payment made
or to be made under a Finance Document.


 


“Tax Losses”
means any amount capable of surrender pursuant to Chapter IV of Part X
of the Taxes Act.


 


“Taxes Act”
means the Income and Corporation Taxes Act 1988.


 


“Tax Liability”
has the meaning set out in paragraph (e) of Clause 17.3 (Tax Indemnity).


 


“Tax Payment”
means the increase in any payment made by an Obligor to a Finance Party under
paragraph (c) of Clause 17.1 (Tax Gross-up) or any amount payable under paragraph (d) of Clause
17.1 (Tax Gross-up) or under Clause 17.3 (Tax Indemnity).


 


“TCN Group”
means TCN and its Subsidiaries from time to time.


 


“Telecommunications,
Cable and Broadcasting Laws” means the Telecommunications Act 1984,
the Broadcasting Act 1990 (together with the Broadcasting Act 1996), the
Communications Act 2003 and all other laws, statutes, regulations and judgments
relating to broadcasting or telecommunications or cable television or
broadcasting applicable to any member of the Bank Group, and/or the business
carried on by, any member of the Bank Group (for the avoidance of doubt, not
including laws, statutes, regulations or judgments relating solely to consumer
credit, data protection or intellectual property).


 


“Telewest Group”
means the Ultimate Parent and its Subsidiaries from time to time. For
information purposes only, the members of the Telewest Group as at the Original
Execution Date and prior to the Merger taking place, are listed in Part 2
of Schedule 9 (Members of the Telewest
Group).


 


“Telewest UK”
means Telewest UK Limited, a company incorporated in England & Wales
with registered number 04925679 and having its registered office at Export
House, Cawsey Way, Woking, Surrey GU21 6QX.


 


“Term”
means:


 


(a)                                  in relation to a Revolving Facility Advance, the period for which such
Advance is borrowed as specified in the relevant Utilisation Request; and


 


(b)                                  in relation to any Documentary Credit, the period from the date of its
issue until its Expiry Date.


 


“Term Facilities”
means the A Facility, the A1 Facility, the B Facility and the B1 Facility and “Term Facility” means any of them, as the context requires.


 


“Term Facility Advance”
means any A Facility Advance, an A1 Facility Advance, B Facility Advance or B1
Facility Advance and “Term Facility Advances”
shall be construed accordingly.


 


“Term Facility Outstandings”
means, at any time, the aggregate of the A Facility Outstandings, the B
Facility Outstandings the A1 Facility Outstandings and the B1 Facility
Outstandings, at such time.


 


48

















 


“Termination Date”
means:


 


(a)                                  in relation to the Revolving Facility, the date which is 30 days prior
to the Final Maturity Date in respect of the Revolving Facility;


 


(b)                                  in relation to the A Facility, the earlier of (i) 2 October 2006
or (ii) the Merger Closing Date;


 


(c)                                  in relation to the B Facility, the earlier of (i) 2 October 2006
or (ii) the Structuring Date;


 


(d)                                  in relation to the A1 Facility and the B1
Facility, the earlier of (i) 2 October 2006 or (ii) the date
falling 15 days after the Baseball Effective Date; and


 


(e)                                  in relation to each Ancillary Facility, the relevant Ancillary Facility
Termination Date.


 


“Total Baseball Debt”
means all amounts drawn under the A1 Facility and the B1 Facility by Baseball
Cash Bidco and used for any of the purposes specified in paragraph (b) of
Clause 2.3 (Purpose) (including without
limitation, any principal amounts, prepayment penalties, make-whole payments,
accrued interest and Break Costs relating thereto).


 


“Transfer Date”
means, in relation to any Transfer Deed, the effective date of such transfer as
specified in such Transfer Deed.


 


“Transfer Deed”
means a duly completed deed of transfer and accession in the form set out
in Schedule 3 (Form of Deed of
Transfer and Accession) which has been executed as a deed by a
Lender and a Transferee whereby such Lender seeks to transfer to such
Transferee all or a part of such Lender’s rights, benefits and obligations
under this Agreement as contemplated in Clause 37 (Assignments
and Transfers) and such Transferee agrees to accept such transfer
and to be bound by this Agreement and to accede to the HYD Intercreditor
Agreement, the Group Intercreditor Agreement and the Security Trust Agreement.


 


“Transferee”
means a bank or other institution to which a Lender seeks to transfer all or part of
its rights, benefits and obligations under this Agreement pursuant to and in
accordance with Clause 37 (Assignments and Transfers).


 


“UK Bank Lender”
means, in relation to a payment of interest on a participation in an Advance to
a Borrower, a Lender which is beneficially entitled to and within the charge to
United Kingdom corporation tax as regards that payment and (a) if the
participation in that Advance was made by it, is a Lender which is a “bank” (as
defined for the purposes of section 349 of the Taxes Act in section 840A
of the Taxes Act) or (b) if the participation in that Advance was made by
a different person, such person was a “bank” (as defined for the purposes of section 349
of the Taxes Act in section 840A of the Taxes Act) at the time that
Advance was made.


 


“UK Borrowers” means:


 


(a)                                  as
at the date of the Agreement, each of the Company, TCN and NTLIH Sub; and


 


(b)                                  thereafter,
any Acceding Borrower that is liable to corporation tax in the United Kingdom,


 


excluding any UK Borrower which has been liquidated in
accordance with the provisions of Clause 25.20 (Solvent
Liquidation) but including the relevant Successor Entity (provided
it is also liable to corporation tax in the United Kingdom) thereafter, and “UK Borrower” means any of them.


 


“UK Channel Management”
means UK Channel Management Limited, a company incorporated in England &
Wales with registered number 3322468, whose registered office is at Export
House, Cawsey Way, Woking, Surrey GU21 6QX.


 


49

















 


“UK Channel
Management Group” means the UK Channel Management and its
Subsidiaries from time to time.


 


“UK Channel
Management Security Trustee Undertakings” means the agreement to be
entered into on or following the Merger Closing Date between the Security Trustee,
BBC Worldwide Limited, Flextech Broadband Limited and United Artists
Investments Limited in relation to the shareholders’ agreement relating to UK
Channel Management.


 


“UK Gold”
means UK Gold Holdings Limited, a company incorporated in England and Wales
with registered  number 3298738, whose
registered office is at Export House, Cawsey Way, Woking, Surrey GU21 6QX.


 


“UK Gold Group”
means UK Gold and its Subsidiaries from time to time.


 


“UK Gold Security
Trustee Undertaking” means the agreement to be entered into on or
following the Merger Closing Date between the Security Trustee, BBC Worldwide
Limited and Flextech Broadband Limited in relation to the shareholders
agreement relating to UK Gold.


 


“UK Non-Bank Lender”
means, in relation to a payment of interest on an Advance to a Borrower:


 


(a)                                  a Lender which is beneficially entitled to the income in respect of
which that payment is made and is a UK Resident company (the first condition
set out in section 349B of the Taxes Act); or


 


(b)                                  a Lender which satisfies one of the other conditions set out in section 349B
of the Taxes Act,


 


where H.M. Revenue & Customs has not given a
direction under section 349C of the Taxes Act which relates to that
payment of interest on an Advance to such Borrower.


 


“UK Pension Scheme”
means a pension scheme in which any member of the Group participates or has at
any time participated, and which has its main administration in the United
Kingdom or is primarily for the benefit of employees in the United Kingdom.


 


“UK Resident”
means a person who is resident in the United Kingdom for the purposes of the
Taxes Act and “non-UK Resident”
shall be construed accordingly.


 


“UK  Treaty Lender” means in relation to a
payment of interest on an Advance to a UK Borrower, a Lender which is entitled
to claim full relief from liability to taxation otherwise imposed by such UK
Borrower’s Relevant Tax Jurisdiction (in relation to that Lender’s
participation in Advances made to such UK Borrower) on interest under a Double
Taxation Treaty and which does not carry on business in that UK Borrower’s
Relevant Tax Jurisdiction through a permanent establishment with which that
Lender’s participation in that Advance is effectively connected and, in
relation to any payment of interest on any Advance made by that Lender, such UK
Borrower has received notification in writing from H.M. Revenue &
Customs authorising such UK Borrower to pay interest on such Advances without
any Tax Deduction.


 


“UKTV Group”
means each of the UK Channel Management Group, UK Gold Group and UKTV New
Ventures Group.


 


“UKTV Joint Ventures”
means each of UK Channel Management, UK Gold and UKTV New Ventures.


 


“UKTV New Ventures”
means UKTV New Ventures Limited, a company incorporated in England and Wales
with registered number 04266373, whose registered office is at Export House,
Cawsey Way, Woking, Surrey GU21 6QX.


 


50

















 


“UKTV New Ventures
Group” means the UKTV New Ventures and its Subsidiaries from time to
time.


 


“UKTV New Ventures
Security Trustee Undertaking” means the agreement to be entered into
on or following the Merger Closing Date between the Security Trustee, BBC
Worldwide Limited and Flextech Broadband Limited in relation to the
shareholders agreement relating to UKTV New Ventures.


 


“Ultimate Parent”
means, as at the Original Execution Date, Telewest Global or at any time
thereafter, the person (if any) that accedes to this Agreement as the Ultimate
Parent pursuant to Clause 26.3 (Acceding
Holding Company).


 


“United States”
or “US” means the United States of America,
its territories, possessions and other areas subject to the jurisdiction of the
United States of America;


 


“Unpaid Sum”
means any sum due and payable by an Obligor under any Finance Document (other
than any Ancillary Facility Document) but unpaid.


 


“US Accession Lender”
means in relation to a payment of interest on a participation in an Advance, a
Lender which is not a Qualifying UK Lender.


 


“US Bankruptcy Code”
means the Bankruptcy Reform Act of 1978, 11 USC. §§ 101 et seq., as
amended, or any successor thereto;


 


“US Dollars”, “Dollars” or “$” means the
lawful currency for the time being of the United States;


 


“US Obligors”
means the US Borrower and the Restricted Guarantors, and “US Obligor”
means any of them.


 


“US Paying Agent”
means as at the Original Execution Date, Deutsche Bank AG, New York Branch and
at any other time, any other person that has been delegated with, or appointed
for the purposes of, carrying out the functions set out in Clause 30.21 (US Paying Agent) subject to the terms set
out in that Clause.


 


“Utilisation”
means the utilisation of a Facility under this Agreement, whether by way of an
Advance, the issue of a Documentary Credit or the establishment of any
Ancillary Facility.


 


“Utilisation Date”
means:


 


(a)                                  in
relation to an Advance, the date on which such Advance is (or is requested) to
be made;


 


(b)                                  in relation to a utilisation by way of Ancillary Facility, the date on
which such Ancillary Facility is established; and


 


(c)                                  in relation to a utilisation by way of Documentary Credit, the date on
which such Documentary Credit is to be issued, in each case,


 


in
accordance with the terms of this Agreement.


 


“Utilisation Request”
means:


 


(a)                                  in relation to an Advance a duly completed notice in the form set
out in Part 1 to Schedule 5 (Form of Utilisation
Request (Advances)); or


 


(b)                                  in relation to a Documentary Credit, a duly completed notice in the form set
out in Part 2 to Schedule 5 (Form of Utilisation
Request (Documentary Credits)).


 


51

















 


“Vanilla  Certain Funds Period” means, in relation to the A Facility,
the period commencing on the Original Execution Date and ending on the earlier
of (i) 2 October 2006 and (ii) the Merger Closing Date.


 


“Vanilla Clean-Up Period”
means the period commencing on the Merger Closing Date and ending on the date
falling 4 months and 2 weeks thereafter.


 


“Vanilla Drawstop Default” means an Event
of Default arising under any of the following provisions:


 


(a)                                  with respect to NTL, the Company, TCN or the Merger Sub only, Clause
27.1 (Non-Payment);


 


(b)                                  with respect to the Company or TCN only, Clause 27.2 (Covenants) by virtue of a breach of the covenant in Clause
25.2 (Negative Pledge) which has a material
adverse effect on the Security (taken as a whole);


 


(c)                                  with respect to NTL, the Company, TCN or the Merger Sub only,
Clause 27.4 (Misrepresentation) by virtue of a
breach of any of the representations and warranties in Clause 21.2 (Due Organisation); or


 


(d)                                  with respect to NTL, the Company, TCN and the Merger Sub only, Clause
27.6 (Insolvency), Clause 27.7 (Winding-Up), Clause 27.8 (Execution
and Distress) or Clause 27.9 (Similar Events)
other than any such event which is caused by the occurrence or potential
occurrence of another Event of Default.


 


“Vendor Financing
Arrangements” means any arrangement, contractual or otherwise,
pursuant to which credit or other financing is provided or arranged by a
supplier (or any of its Affiliates) of assets (including equipment) and/or
related services to a member of the Bank Group in connection with such supply
of assets and/or services.


 


“Voting Stock”
of a person means all classes of capital stock, share capital or other
interests (including partnership interests) of such person then outstanding and
normally entitled (without regard to the occurrence of any contingency, other than resulting from any default under any instrument
until such default occurs) to vote in the election of directors, managers or
trustees thereof.


 


“Whitewash Documents”
means certified copies of all applicable resolutions, statutory declarations,
auditors’ reports and other documents required by sections 155 to 158 of the
Act to enable any company to provide any financial assistance applicable to it.


 


“Working Capital”
has the meaning ascribed to it in Clause 23.1 (Financial
Definitions).


 


1.2                               Accounting Expressions


 


All accounting expressions which are not otherwise
defined in this Agreement shall be construed in accordance with GAAP.


 


1.3                               Construction


 


Unless a contrary indication appears, any reference in
this Agreement to:


 


the “Facility Agent”,
the “US Paying Agent”, the “Administrative Agent”, a “Mandated
Lead Arranger”, a “Joint Lead Arranger”,
a “Bookrunner”, the “Security Trustee”, a “Hedge Counterparty”, the “L/C Bank”, an “Ancillary Facility Lender” or a “Lender” shall be construed


 


52

















 


so as to include their respective and any subsequent
successors, Transferees and permitted assigns in accordance with their
respective interests;


 


“agreed form”
means, in relation to any document, in the form agreed by or on behalf of
the Bookrunners and the Company prior to the Original Execution Date;


 


“company”
includes any body corporate;


 


“continuing”
in relation to an Event of Default, or a Default shall be construed as meaning
that (a) the circumstances constituting such Event of Default or Default
continue or (b) neither the Facility Agent (being duly authorised to do
so) nor the Lenders have waived in accordance with this Agreement, such of its
or their rights under this Agreement as arise as a result of that event;


 


“determines”
or “determined” means, save as
otherwise provided herein, a determination made in the absolute discretion of
the person making the determination;


 


the “equivalent”
on any given date in one currency (the “first
currency”) of an amount denominated in another currency (the “second currency”) is a reference to the
amount of the first currency which could be purchased with the second currency
at the Facility Agent’s Spot Rate of Exchange at or about 11:00 a.m. on
the relevant date for the purchase of the first currency with the second
currency or for the purposes of determining any amounts testing any covenant or
determining whether an Event of Default has occurred under this Agreement:


 


(a)                                  in the case of any basket or threshold amount qualifying a covenant:


 


(i)                                    in order to determine how much of such basket or threshold has been used
at any time, for each transaction entered into in reliance upon the utilisation
of such basket or in reliance upon such threshold not being reached prior to
such time, the date upon which such transaction was entered into; and


 


(ii)                                in order to determine the permissibility of a proposed transaction, on
the date upon which the permissibility of that transaction is being tested for
the purposes of determining compliance with that covenant; and


 


(b)                                  in the case of any basket or threshold amount relating to an Event of
Default, the date on which the relevant event is being assessed for the purposes
of determining whether such Event of Default has occurred,


 


provided that in the case of Financial Indebtedness
proposed to be incurred to refinance other Financial Indebtedness denominated
in a currency other than Sterling or other than the currency in which such
refinanced Financial Indebtedness is denominated, if such refinancing would
cause any applicable Sterling-denominated restriction to be exceeded if
calculated at the relevant currency exchange rate in effect on the date of such
refinancing, such Sterling denominated restriction shall be deemed not to be
exceeded so long as the principal amount of such refinancing Financial
Indebtedness does not exceed the principal amount of such Financial
Indebtedness being refinanced in the applicable currency at the then current
exchange rate.


 


“month”
is a reference to a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next succeeding calendar month save
that, where any such period would otherwise end on a day which is not a
Business Day, it shall end on the next succeeding Business Day, unless that day
falls in the calendar month succeeding that in which it would otherwise have
ended, in which case it shall end on the immediately preceding Business Day provided
that, if a period starts on the last Business Day in a calendar month or if
there is no numerically corresponding day in the month in which that period
ends, that period shall end on the last Business Day in that later


 


53

















 


month (provided that in any reference to “months” only the last month in a period
shall be construed in the aforementioned manner);


 


a “repayment”
shall include a “prepayment” and
references to “repay” or “prepay” shall be construed accordingly;


 


a “person”
shall be construed as a reference to any person, firm, company, whether with
limited liability or otherwise, government, state or agency of a state or any
association or partnership (whether or not having separate legal personality)
of two or more of the foregoing;


 


“tax”
shall be construed so as to include all present and future taxes, charges,
imposts, duties, levies, deductions or withholdings of any kind whatsoever, or
any amount payable on account of or as security for any of the foregoing, by
whomsoever on whomsoever and wherever imposed, levied, collected, withheld or
assessed together with any penalties, additions, fines, surcharges or interest
relating to it; and “taxes” and “taxation” shall be construed accordingly;


 


“VAT”
shall be construed as value added tax as provided for in the Value Added Tax
Act 1994 and legislation (or purported legislation and whether delegated or
otherwise) supplemental to that Act or in any primary or secondary legislation
promulgated by the European Community or European Union or any official body or
agency of the European Community or European Union, and any tax similar or
equivalent to value added tax imposed by any country other than the United
Kingdom and any similar or turnover tax replacing or introduced in addition to
any of the same;


 


“wholly-owned
Subsidiary” of a company shall be construed as a reference to any
company which has no other members except that other company and that other
company’s wholly-owned Subsidiaries or nominees for that other company or its
wholly-owned Subsidiaries; and


 


the “winding-up”,
“dissolution” or “administration” of a company shall be
construed so as to include any equivalent or analogous proceedings under the
Law of the jurisdiction in which such company is incorporated, established or
organised or any jurisdiction in which such company carries on business,
including the seeking of liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection from creditors or relief of
debtors.


 


1.4                               Currency


 


“€” and “euro” denote the lawful currency of each
Participating Member State, “£”
and “Sterling” denote the lawful
currency of the United Kingdom and “$”
and “Dollars” denote the lawful
currency of the United States of America.


 


1.5                               Statutes


 


Any reference in this Agreement to a statute or a
statutory provision shall, save where a contrary intention is specified, be
construed as a reference to such statute or statutory provision as the same
shall have been, or may be, amended or re-enacted.


 


1.6                               Time


 


Any reference in this Agreement to a time shall,
unless otherwise specified, be construed as a reference to London time.


 


54

















 


1.7                               References to Agreements


 


Unless otherwise stated, any reference in this
Agreement to any agreement or document (including any reference to this
Agreement) shall be construed as a reference to:


 


(a)                                  such agreement or document as amended, varied, novated or supplemented
from time to time;


 


(b)                                  any other agreement or document whereby such agreement or document is so
amended, varied, supplemented or novated; and


 


(c)                                  any other agreement or document entered into pursuant to or in
accordance with any such agreement or document.


 


1.8                               Documentary Credits


 


Any reference in this Agreement to:


 


(a)                                  an amount borrowed includes any amount utilised by way of Documentary
Credit;


 


(b)                                  a Lender funding its participation in a Utilisation includes an
Indemnifying Lender participating in a Documentary Credit;


 


(c)                                  amounts outstanding under this Agreement include amounts outstanding
under, or in relation to, any Documentary Credit;


 


(d)                                  an outstanding amount of a Documentary Credit at any time is the maximum
amount that is or may be payable by the L/C Bank in respect of that Documentary
Credit at that time;


 


(e)                                  a Borrower “repaying” a
Documentary Credit or an Ancillary Facility utilised by way of performance bond
means:


 


(i)                                    that Borrower providing cash cover for that Documentary Credit or
performance bond;


 


(ii)                                the maximum amount payable under the Documentary Credit or performance
bond being reduced in accordance with its terms or otherwise in a manner
satisfactory to the L/C or Ancillary Facility Lender, as the case be, in each
case, acting reasonably; or


 


(iii)                            the L/C Bank or Ancillary Facility Lender, as the case be, being
satisfied that it has no further liability under that Documentary Credit or
performance bond,


 


and that the amount
by which a Documentary Credit or performance bond is repaid under sub-paragraph
(e)(i) or reduced under sub-paragraph (e)(ii) above is the amount of
the relevant cash cover or reduction; and


 


(f)                                    a Borrower providing “cash cover” for a Documentary Credit or an Ancillary
Facility utilised by way of performance bond means that Borrower paying an amount
in the currency of the Documentary Credit or performance bond to an
interest-bearing account in the name of that Borrower and the following
conditions are met:


 


(i)                                    the account is with the Facility Agent (if the cash cover is to be
provided for all the Indemnifying Lenders) or with an Indemnifying Lender or
the L/C Bank or the Ancillary Facility Lender (if the cash cover is to be
provided for that Indemnifying Lender or the L/C Bank or Ancillary Facility
Lender, as the case may be);


 


55

















 


(ii)                                in the case of cash deposited as cash cover for a Documentary Credit,
withdrawals from the account may only be made to pay a Finance Party
amounts due and payable to it under this Agreement in respect of that Documentary
Credit until no amount is or may be outstanding under that Documentary
Credit; and


 


(iii)                            the relevant Borrower has executed a security document over that
account, in form and substance satisfactory to the Facility Agent or the
Finance Party with which that account is held, creating a first ranking
security interest over that account,


 


or on such other
terms as may be satisfactory to the Facility Agent, the relevant
Indemnifying Lender, the relevant Ancillary Facility Lender or the L/C Bank.


 


1.9                               Holding Company of Ultimate Parent


 


If at any time the Ultimate Parent becomes the
Subsidiary of any Holding Company as contemplated by, inter alia, the
definition of “Change of Control”, the provisions of Clause 26.3 (Acceding Holding Company) shall apply and
upon satisfaction of the provisions thereof, any references in the Finance
Documents to “Ultimate Parent” shall thereafter be deemed to be references to
such Holding Company


 


1.10                        No Personal Liability


 


No personal liability shall attach to any director, officer
or employee of any member of the Group for any representation or statement made
by that member of the Group in a certificate signed by such director, officer
or employee.


 


2.                                      THE FACILITIES


 


2.1                               The Facilities


 


The Lenders grant upon the terms and subject to the
conditions of this Agreement:


 


(a)                                  to the Borrowers (other than the US Borrower), a term loan facility in a
maximum amount of £3,200,000,000 (the “A
Facility”) which shall be available in Sterling in a single drawing;


 


(b)                                  to Baseball Cash Bidco, a term loan facility in a maximum amount of
£175,000,000 (the “A1 Facility”)
which shall be available in Sterling in a single drawing;


 


(c)                                  to the Company, a term loan facility in a maximum amount of
£1,200,000,000 (the “B Facility”)
which shall be available in euro, Dollars and/or Sterling;


 


(d)                                  to Baseball Cash Bidco, a term loan facility in a maximum amount of
£300,000,000 (the “B1 Facility”)
which shall be available in euro, Dollars and/or Sterling; and


 


(e)                                  to the Borrowers (other than the US Borrower), a revolving loan facility
in a maximum aggregate amount of £100,000,000 (the “Revolving Facility”) which shall be available for drawing in
euro, Dollars, Sterling or any Optional Currency subject to the utilisation in
full of the A Facility.


 


2.2                               Novation of B Facility and B1 Facility


 


Subject to the
provisions of Clause 37.3 (Assignments or Transfers
by Lenders), the Facility Agent may:


 


(a)                                  on not less than 2 Business Days prior notice, require the Company
to (and the Company shall promptly thereafter) transfer by way of novation and
in form satisfactory to the Facility


 


56

















 


Agent, some or all of its obligations under
the B Facility to the US Borrower, whereupon such US Borrower shall
become the primary obligor in respect of such obligations as if it had been the
original Borrower thereof; and


 


(b)                                  at any time after the date falling 15 days after the Baseball Effective
Date, on not less than 2 Business Days prior notice, require Baseball Cash
Bidco to (and Baseball Cash Bidco shall promptly thereafter) transfer by way of
novation and in form satisfactory to the Facility Agent, some or all of
its obligations under the B1 Facility to the US Borrower, whereupon such
US Borrower shall become the primary obligor in respect of such
obligations as if it had been the original Borrower thereof.


 


2.3                               Purpose


 


(a)                                  The A Facility shall be applied towards financing:


 


(i)                                    the repayment in full of all amounts due and payable under the Existing
Credit Facilities (including in each case without limitation, by way of
principal, interest, break costs, fees and expenses, commission and any other
premiums); and


 


(ii)                                any fees, costs and expenses due and payable under the Finance Documents
and any other fees, costs and expenses incurred by the Obligors in connection
with the negotiation and preparation of the Finance Documents,


 


provided that, for
the avoidance of doubt, no portion of the A Facility (or proceeds therefrom) may be
used to finance any part of the purchase price payable for the Merger or
any related fees, costs and expenses incurred therein.


 


(b)                                  The B Facility shall be applied towards the repayment of the Bridge
Facility, through a series of transactions as more particularly described
in the Steps Paper.


 


(c)                                  The A1 Facility and B1 Facility shall be applied towards financing or
refinancing:


 


(i)                                    firstly, the entire cash consideration payable by Baseball Cash Bidco in
respect of the Baseball Shares to be acquired by the Baseball Bidcos pursuant
to the Baseball Scheme and any payments to holders of options in respect of the
Baseball Shares who exercise or surrender their options in connection with the
Baseball Scheme;


 


(ii)                                secondly, after payment in full of the amounts specified in sub-paragraph
(i) above, the payment of related fees, costs and expenses (and taxes
thereon) due and payable by or on behalf of the Baseball Bidcos in connection
with the Baseball Scheme including all stamp, registration or similar taxes
thereon; and


 


(iii)                            thirdly, after payment in full of the amounts specified in sub-paragraph
(ii) above, the repayment in full of all amounts due and payable under the
Existing Baseball Facilities (including in each case without limitation, by way
of principal, interest, break costs, fees and expenses, commission and any
other premiums) on or after the Baseball Effective Date.


 


(d)                                  The Revolving Facility shall be applied for the purposes of financing
the ongoing working capital requirements and the general corporate purposes of
the Bank Group and may be utilised by way of Revolving Facility Advances,
Documentary Credits or, subject to the provisions of Clause 6 (Ancillary Facilities), Ancillary Facilities.


 


(e)                                  Each Borrower shall apply all amounts borrowed under this Agreement in
or towards satisfaction of the purposes referred to in paragraphs (a) to (c) (as
applicable) and none of the


 


57

















 


Finance Parties shall be obliged to concern
themselves with such application.


 


2.4                               Several Obligations


 


The obligations of each Finance Party under this
Agreement are several and the failure by a Finance Party to perform any of
its obligations under this Agreement shall not affect the obligations of any of
the Obligors towards any other party to this Agreement nor shall any other
party be liable for the failure by such Finance Party to perform its
obligations under this Agreement.


 


2.5                               Several Rights


 


The rights of each Finance Party are several and any
debt arising under this Agreement at any time from an Obligor to any Finance
Party to this Agreement shall be a separate and independent debt. Each Finance
Party may, except as otherwise stated in this Agreement, separately enforce its
rights under this Agreement.


 


3.                                      CONDITIONS


 


3.1                               Vanilla Conditions Precedent


 


(a)                                  The obligations of the Lenders to make the A Facility and the Revolving
Facility available shall be conditional upon the Facility Agent having
confirmed to the Company that it has received (or has waived in accordance with
this Agreement, the requirement to receive) the documents listed in paragraphs
1 to 9 of Part 1 of Schedule 4 (Conditions Precedent to
First Utilisation) and that each is satisfactory, in form and
substance, to the Facility Agent, acting reasonably. The Facility Agent shall
notify the Company and the Lenders promptly upon being so satisfied.


 


(b)                                  The obligations of the Lenders to make the B Facility available shall be
conditional upon the Facility Agent having confirmed to the Company that it has
received (or has waived in accordance with this Agreement, the requirement to
receive) the documents listed in paragraphs 10 to 12 of Schedule 4 (Conditions Precedent to First Utilisation) and that each is
satisfactory, in form and substance, to the Facility Agent, acting
reasonably. The Facility Agent shall notify the Company and the Lenders
promptly upon being so satisfied.


 


3.2                               Baseball Conditions Precedent


 


The obligations of the Lenders to make the A1 Facility
and the B1 Facility available shall be conditional upon the Facility Agent
having confirmed to Baseball Cash Bidco that it has received (or has waived in
accordance with this Agreement, the requirement to receive) the documents
listed in Part 2 of Schedule 4 (Conditions Precedent to
First Baseball Utilisation) and that each is satisfactory, in form and
substance, to the Facility Agent, acting reasonably. The Facility Agent shall
notify Baseball Cash Bidco and the Lenders promptly upon being so satisfied.


 


3.3                               Vanilla Conditions Subsequent


 


The Company shall procure (and each relevant Obligor
shall ensure) that:


 


(a)                                  immediately after the first Utilisation, the Merger Sub and NTL shall
have filed the certification of merger with the Secretary of State of Delaware
and the Ultimate Parent shall have filed the charter amendment as set forth in Section 2.01(b) of
the Merger Agreement;


 


(b)                                  within 30 days after the Merger Closing Date (or earlier, to the extent
required by any time-limit prescribed by law) all Initial Security Documents
shall have been registered or filed with all appropriate authorities to the
extent necessary for the purposes of perfecting the Security


 


58

















 


created thereunder;


 


(c)                                  within 30 days after the Merger Closing Date, there shall have been
delivered to the Facility Agent each of the documents listed in Part 5 of Schedule 4
(Vanilla Conditions Subsequent Documents)
each in form and substance satisfactory to the Facility Agent, acting
reasonably; and


 


(d)                                  using its best endeavours, within 90 days of the Structuring Date, such
members of the TCN Group that are Guarantors at such time, shall take all
reasonable action to produce and deliver all necessary Whitewash Documents to
ensure that the extent of its guarantee provided under Clause 29 (Guarantee and Indemnity) may be extended to include any
sums payable in respect of the B Facility without breaching and having
satisfied the provisions of Sections 151 to 158 of the Act.


 


The Facility Agent shall notify the Company and the
Lenders promptly upon being so satisfied.


 


3.4                               Baseball Conditions Subsequent


 


The Baseball Cash Bidco shall procure (and the Company
shall ensure) that as soon as reasonably practicable and in any event within 90
days of the Baseball Effective Date such members of the Baseball Group as shall
be necessary to ensure that the 80% Security Test (after giving effect to the
Baseball Acquisition) is satisfied, shall have acceded to this Agreement as
Acceding Guarantors and provided all necessary documentation required to be
delivered pursuant to the provisions of Clause 26.2 (Acceding
Guarantor) and each of the documents listed in Part 6 of Schedule 4
(Baseball Condition Subsequent Documents),
each in form and substance satisfactory to the Facility Agent, acting
reasonably. The Facility Agent shall notify the Company and the Lenders
promptly upon being so satisfied.


 


3.5                               Vanilla Certain Funds Period


 


Prior to the end of the Vanilla Certain Funds Period,
no Finance Party may:


 


(a)                                  exercise any rights of rescission, termination, cancellation, set-off or
counterclaim;


 


(b)                                  exercise any remedy under Clause 27 (Events of Default)
or any other remedy in connection with a Finance Document;


 


(c)                                  invoke any right or discretion for which provision is made in this
Agreement requiring any prepayment or repayment of any A Facility Advance, any Revolving
Facility Advance or any Documentary Credit; or


 


(d)                                  refuse to make available any A Facility Advance for the purposes set out
in paragraph (a) of Clause 2.3 (Purpose),


 


unless either:


 


(i)                                    the conditions precedent to first Utilisation required by Clause 3.1 (Vanilla Conditions Precedent) are not satisfied or waived or
a Borrower fails to deliver a Utilisation Request in respect of such
Utilisation; or


 


(ii)                                a Vanilla Drawstop Default has occurred and is continuing,


 


provided that any
matter contained in this Clause 3.5 shall be without prejudice to the Lenders’
rights or remedies in respect of any Event of Default which has occurred and
which remains outstanding upon the expiry of the Vanilla Certain Funds Period.


 


59

















 


3.6                               Baseball Certain Funds Period


 


Prior to the end of the Baseball Certain Funds Period,
no Finance Party may:


 


(a)                                  have the right to prevent or limit the making of any drawdown under the
A1 Facility or the B1 Facility whether by cancellation, rescission or
termination of the A1 Facility and/or the B1 Facility or otherwise (including
by invoking any conditions precedent other than in accordance with Clause 3.2 (Baseball Conditions Precedent) or by invoking the provisions
of Clause 15.1 (Market Disruption);


 


(b)                                  make or enforce any claims that it may have under the Finance
Documents if the effect of such claim or enforcement would prevent or limit the
making of any drawdown under the A1 Facility and/or  the B1 Facility;


 


(c)                                  exercise any right of set-off, counterclaim or similar right or remedy
if to do so would prevent or limit the making of any drawdown under  the A1 Facility or  the B1 Facility; or


 


(d)                                  cancel or declare the A1 Facility and/or the B1 Facility due and payable
or payable on demand,


 


unless either:


 


(i)                                    the conditions precedent to first Utilisation required by Clause 3.2 (Baseball Conditions Precedent) are not satisfied or waived
or a Borrower fails to deliver a Utilisation Request in respect of such
Utilisation;


 


(ii)                                a Baseball Drawstop Default has occurred and is continuing; or


 


(iii)                            it is unlawful for such Lender to make any A1 Facility Advance and/or B1
Facility Advance,


 


provided that any
matter contained in this Clause 3.6 shall be without prejudice to the Lenders’
rights or remedies in respect of any Event of Default which has occurred and
which remains outstanding upon the expiry of the Baseball Certain Funds Period.


 


4.                                      UTILISATION


 


4.1                               Conditions to Utilisation


 


Save as otherwise provided in this Agreement, an Advance
will be made by the Lenders to a Borrower or a Documentary Credit will be
issued by an L/C Bank at a Borrower’s (other than the US Borrower’s) request
if:


 


(a)                                  in the case of an Advance, the Facility Agent has received from such
Borrower a duly completed Utilisation Request in the relevant form, and in the
case of a Documentary Credit, both the Facility Agent and the L/C Bank have
received from a Borrower (other than the US Borrower) a duly completed
Utilisation Request in the relevant form, in each case, no earlier than the day
which is 10 Business Days and no later than 2:00 p.m. on the day which is
3 Business Days (or in the case of any Documentary Credit which is not or
will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 2:00 p.m.
on the day which is 5 Business Days) prior to the proposed Utilisation Date for
such Advance or Documentary Credit, receipt of which shall oblige such Borrower
to utilise the amount requested on the Utilisation Date stated therein upon the
terms and subject to the conditions contained in this Agreement;


 


60

















 


(b)                                  the proposed Utilisation Date is a Business Day for the proposed
currency of the Advance or Documentary Credit, as the case may be, which is
or precedes the relevant Termination Date;


 


(c)                                  in the case of a Utilisation by way of Term Facility Advance, such
Utilisation would result in the maximum principal amount of the Term Facility
Advance being utilised, or in the case of a Utilisation by way of a Revolving
Facility Advance, such Utilisation occurs on or after the maximum principal
amount of the Term Facility being utilised and, the proposed Sterling Amount of
such Revolving Facility Advance is (i) equal to the amount of the
Available Revolving Facility Commitment at such time, or (ii) less than
such amount but equal to a minimum of £5 million, or an integral multiple of £1
million;


 


(d)                                  in the case of a Utilisation by way of Documentary Credit, the proposed
Sterling Amount of such Documentary Credit is (i) equal to the amount of
the Available Revolving Facility or (ii) less than such amount but equal
to or more than £1 million or such
lesser amount as the L/C Bank may agree;


 


(e)                                  in the case of a Utilisation by way of a Revolving Facility Advance,
immediately after the making of such Advance there will be no more than 10
Revolving Facility Advances then outstanding;


 


(f)                                    in the case of a Utilisation by way of a Documentary Credit, the
proposed Term of the Documentary Credit ends on or before the Termination Date
in respect of the Revolving Facility;


 


(g)                                 in the case of a Utilisation by way of a Revolving Facility Advance, the
proposed Term of such Advance is a period of 1, 2, 3 or 6 months or such other
period of up to 12 months as all the Lenders having a Revolving Facility
Commitment may agree prior to submission of the relevant Utilisation
Request, and ends on or before the Final Maturity Date in respect of the
Revolving Facility provided that, save as the Bookrunners may otherwise
agree, prior to the Syndication Date, the Term of each Revolving Facility
Advance shall be 1 month (or, if less, such duration as is necessary to ensure
that such Term ends on the Syndication Date);


 


(h)                                 in the case of a Utilisation by way of an Advance (other than a Rollover
Advance), the interest rate applicable to such Advance’s first Interest Period
or Term (as the case may be) will not have to be determined under Clause
15 (Market Disruption and Alternative Interest Rates);


 


(i)                                    in the case of a Utilisation by way of a Documentary Credit which
is  not substantially in the form set
out in Schedule 12 (Form of Documentary Credit), the L/C Bank shall have approved the
terms of such Documentary Credit (acting reasonably); and


 


(j)                                    in the case of any Utilisation, on the date of the Utilisation Request,
the date of any Conversion Notice and the proposed Utilisation Date:


 


(i)                                    in the case of a Rollover Advance or a Documentary Credit which is being
renewed pursuant to Clause 5.2 (Renewal of Documentary
Credits), the Facility Agent shall not have received instructions
from a Revolving Facility Instructing Group requiring the Facility Agent to
refuse such rollover or renewal of a Documentary Credit by reason of an Event
of Default having occurred which is continuing or would result from the
proposed Rollover Advance or the renewal of that Documentary Credit; or


 


(ii)                                in the case of any Utilisation other than that referred to in
sub-paragraph (i):


 


(A)                               in the case of the first Utilisation of any Facility, subject to the
provisions of Clause 3.5 (Vanilla  Certain Funds Period), all representations
set out in


 


61

















 


Clause
21 (Representations and Warranties)
made by each of the persons identified as making those representations are true
in all material respects by reference to the circumstances then existing and no
Default is continuing or would result from the proposed Utilisation;


 


(B)                               in the case of any Utilisation under the A1 Facility and B1 Facility,
subject to the provisions of Clause 3.6 (Baseball Certain Funds
Period), the Repeating Representations made by the persons
identified as making those representations are true in all material respects by
reference to the circumstances then existing and no Default is continuing or
would result from the proposed Utilisation; or


 


(C)                               in the case of any Utilisation under the B Facility, the Repeating
Representations made by the persons identified as making those representations
are true in all material respects by reference to the circumstances then
existing and no Default is continuing or would result from the proposed
Utilisation.


 


4.2                               Lenders’ Participations


 


Each Lender will participate through its Facility
Office in each Advance made pursuant to Clause 4.1 (Conditions
to Utilisation) in its respective Proportion.


 


5.                                      DOCUMENTARY CREDITS


 


5.1                               Issue of Documentary Credits


 


(a)                                  Each L/C Bank shall issue Documentary Credits pursuant to Clause 4.1 (Conditions to Utilisation) by:


 


(i)                                    completing the issue date and the proposed Expiry Date of any
Documentary Credit to be issued by it; and


 


(ii)                                executing and delivering such Documentary Credit to the relevant
Beneficiary on the relevant Utilisation Date.


 


(b)                                  Each Lender having a Revolving Facility Commitment (an “Indemnifying Lender”) will participate by
way of indemnity in each Documentary Credit in an amount equal to its L/C
Proportion.


 


(c)                                  The Facility Agent shall notify each Indemnifying Lender and the L/C
Bank of the details of any requested Documentary Credit (including the Sterling
Amount of it, and, if such Documentary Credit is not to be denominated in
Sterling, the relevant currency in which it will be denominated and the amount
of it) and its participation in that Documentary Credit.


 


5.2                               Renewal of Documentary Credits


 


(a)                                  Each Borrower (other than the US Borrower) may request that a
Documentary Credit issued on its behalf be renewed by delivering to the
Facility Agent and the L/C Bank a Renewal Request which complies with Clause
4.1 (Conditions to Utilisation).


 


62

















 


(b)                                  The terms of each renewed Documentary Credit shall be the same as those
of the relevant Documentary Credit immediately prior to its renewal, except
that (as stated in the Renewal Request therefor):


 


(i)                                    its amount may be less than the amount of such Documentary Credit
immediately prior to its renewal; and


 


(ii)                                its Term shall start on the date which was the Expiry Date of that
Documentary Credit immediately prior to its renewal, and shall end on the
proposed Expiry Date specified in the Renewal Request.


 


(c)                                  If the conditions set out in this Clause 5.2 have been met, the L/C Bank
shall amend and re-issue the relevant Documentary Credit pursuant to a Renewal
Request.


 


5.3                               Revaluation of Documentary Credits


 


(a)                                  If any Documentary Credit is denominated in a currency other than
Sterling and has a Term of more than 6 months, the Facility Agent shall on each
Quarter Date falling on 31 March and 30 September recalculate
the Sterling Amount of that Documentary Credit by notionally converting into
the relevant currency, the outstanding amount of that Documentary Credit on the
basis of the Facility Agent’s Spot Rate of Exchange on the date of calculation.


 


(b)                                  The relevant  Borrower shall, if
requested by the Facility Agent within 2 days of any calculation under
paragraph (a) above, ensure that within 3 Business Days sufficient
Revolving Facility Outstandings are repaid (subject to Break Costs, if
applicable, but otherwise without penalty or premium which might otherwise be
payable) to prevent the Sterling Amount of the Revolving Facility Outstandings
exceeding the aggregate amount of all of the Revolving Facility Commitments
adjusted to reflect any cancellations or reductions, following any adjustment
under paragraph (a) above.


 


5.4                               Immediately Payable


 


If a Documentary Credit or any amount outstanding
under a Documentary Credit is expressed to be immediately payable, the relevant
UK Borrower shall repay that amount immediately.


 


5.5                               Claims under a Documentary Credit


 


(a)                                  Each relevant Borrower irrevocably and unconditionally authorises the
L/C Bank to pay any claim made or purporting to be made under a Documentary
Credit requested by it and which appears on its face to be in order (a “claim”).


 


(b)                                  Each relevant Borrower shall within 3 Business Days of a demand pay to
the Facility Agent for the L/C Bank an amount equal to the amount of any claim.


 


(c)                                  Each relevant Borrower acknowledges that the L/C Bank:


 


(i)                                    is not obliged to carry out any investigation or seek any confirmation
from any other person before paying a claim; and


 


(ii)                                deals in documents only and will not be concerned with the legality of a
claim or any underlying transaction or any available set-off, counterclaim or
other defence of any person.


 


63

















 


(d)                                  The obligations of each relevant Borrower under this Clause 5.5 will not
be affected by:


 


(i)                                    the sufficiency, accuracy or genuineness of any claim or any other
document; or


 


(ii)                                any incapacity of, or limitation on the powers of, any person signing a
claim or other document.


 


(e)                                  Without prejudice to any other matter contained in this Clause 5.5, the
L/C Bank shall notify the relevant Borrowers as soon as reasonably practicable
after receiving a claim.


 


5.6                               Documentary Credit Indemnities


 


(a)                                  The relevant Borrower shall within 3 Business Days of demand indemnify
the L/C Bank against any cost, loss or liability incurred by the L/C Bank
(otherwise than by reason of the L/C Bank’s gross negligence or wilful
misconduct) in acting as the L/C Bank under any Documentary Credit requested by
such Borrower provided that this indemnity shall not take effect until the
Merger Closing Date.


 


(b)                                  Each Indemnifying Lender shall (according to its L/C Proportion)
promptly on demand indemnify the L/C Bank against any cost, loss or liability
incurred by the L/C Bank (otherwise than by reason of the L/C Bank’s gross
negligence or wilful misconduct) in acting as the L/C Bank under any
Documentary Credit (except to the extent that the L/C Bank has been reimbursed
by an Obligor pursuant to a Finance Document).


 


(c)                                  If any Indemnifying Lender is not permitted (by its constitutional
documents or any applicable Law) to comply with paragraph (b) above, then
that Indemnifying Lender will not be obliged to comply with paragraph (b) and
shall instead be deemed to have taken, on the date the relevant Documentary
Credit is issued (or if later, on the date that Indemnifying Lender’s
participation in the Documentary Credit is transferred or assigned to that
Indemnifying Lender in accordance with the terms of this Agreement), an
undivided interest and participation in the Documentary Credit in an amount
equal to its L/C Proportion of that Documentary Credit. On receipt of demand
from the Facility Agent, that Indemnifying Lender shall pay to the Facility
Agent (for the account of the L/C Bank) an amount equal to its L/C Proportion
of the amount demanded under paragraph (b) above.


 


(d)                                  The relevant Borrower shall within 3 Business Days of demand reimburse
any Indemnifying Lender for any payment it makes to the L/C Bank under this
Clause 5.6 in respect of that Documentary Credit unless an Obligor has already
reimbursed the L/C Bank in respect of that payment.


 


(e)                                  The obligations of each Indemnifying Lender under this Clause 5.6 are
continuing obligations and will extend to the ultimate balance of sums payable
by that Indemnifying Lender in respect of any Documentary Credit, regardless of
any intermediate payment or discharge in whole or in part.


 


(f)                                    The obligations of any Indemnifying Lender under this Clause 5.6 will
not be affected by any act, omission, matter or thing which, but for this
Clause 5.6 would reduce, release or prejudice any of its obligations under this
Clause 5.6 (without limitation and whether or not known to it or any other
person) including:


 


(i)                                    any time, waiver or consent granted to, or composition with, any
Obligor, any beneficiary under a Documentary Credit or any other person;


 


(ii)                                the release of any Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the Group;


 


64

















 


(iii)                            the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of, any Obligor, any beneficiary under a Documentary
Credit or any other person or any non-presentation or non-observance of any
formality or other requirement in respect of any instrument or any failure to realise
the full value of any security;


 


(iv)                               any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor, any beneficiary
under a Documentary Credit or any other person;


 


(v)                                   any amendment or restatement (however fundamental) or replacement of a
Finance Document, any Documentary Credit or any other document or security;


 


(vi)                               any unenforceability, illegality or invalidity of any obligation of any
person under any Finance Document, any Documentary Credit or any other document
or security; or


 


(vii)                           any insolvency or similar proceedings.


 


5.7                               Rights of Contribution


 


No Obligor will be entitled to any right of
contribution or indemnity from any Finance Party in respect of any payment it may make
under this Clause 5 (Documentary Credits).


 


5.8                               Role of the L/C Bank


 


(a)                                  Nothing in this Agreement constitutes the L/C Bank as a trustee or
fiduciary of any other person.


 


(b)                                  The L/C Bank shall not be bound to account to any Lender for any sum or
the profit element of any sum received by it for its own account.


 


(c)                                  The L/C Bank may accept deposits from, lend money to and generally
engage in any kind of banking or other business with any member of the Group.


 


(d)                                  The L/C Bank may rely on:


 


(i)                                    any representation, notice of document believed by it to be genuine,
correct and appropriately authorised; and


 


(ii)                                any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to be
within his knowledge or within his power to verify.


 


(e)                                  The L/C Bank may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.


 


(f)                                    The L/C Bank may act in relation to the Finance Documents through
its personnel and agents.


 


(g)                                 The L/C Bank is not responsible for:


 


(i)                                    the adequacy, accuracy and/or completeness of any information (whether
oral or written) supplied by the L/C Bank, the Facility Agent, the Mandated
Lead Arrangers, an Obligor or any other person given in or in connection with
any Finance Document; or


 


65

















 


(ii)                                the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Finance Document.


 


5.9                               Exclusion of Liability


 


(a)                                  Without limiting paragraph (b) below, the L/C Bank will not be
liable for any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful misconduct.


 


(b)                                  No Finance Party (other than the L/C Bank) may take any proceedings
against any officer, employee or agent of the L/C Bank in respect of any claim
it might have against the L/C Bank or in respect of any act or omission of any
kind by that officer, employee or agent in relation to any Finance Document.


 


5.10                        Credit Appraisal by the Indemnifying Lenders


 


Without affecting the responsibility of any Obligor
for information supplied by it or on its behalf in connection with any Finance
Document, each Indemnifying Lender confirms to the L/C Bank that it has been,
and will continue to be, solely responsible for making its own independent
appraisal and investigation of the risks arising under or in connection with
any Finance Document, including but not limited to, those listed in paragraphs (a) to
(d) of Clause 30.16 (Credit Appraisal by the
Lenders).


 


5.11                        Appointment and Change of L/C Bank


 


(a)                                  The Company, with the prior written consent of the relevant Lender, may designate
any Lender with a Revolving Facility Commitment as an L/C Bank or as a
replacement therefor, but not with respect to Documentary Credits already
issued by any other L/C Bank.


 


(b)                                  Any Lender so designated shall become an L/C Bank under this Agreement
by delivering to the Facility Agent an executed L/C Bank Accession Certificate.


 


(c)                                  An L/C Bank may resign as issuer of further Documentary Credits at
any time if (i) the Company and an Instructing Group consent to such
resignation or so require; (ii) there is, in the reasonable opinion of the
L/C Bank, an actual or potential conflict of interest in it continuing to act
as L/C Bank; or (iii) its Revolving Facility Commitment is reduced to
zero, provided that the L/C Bank shall not resign until a replacement L/C Bank
is appointed.


 


6.                                      ANCILLARY FACILITIES


 


6.1                               Utilisation of Ancillary Facilities


 


(a)                                  Each Borrower (other than the US Borrower), may subject to
paragraph (b) below, at any time at least 35 days prior to the Termination
Date in respect of the Revolving Facility by delivery of a notice (a “Conversion Notice”) to the Facility Agent,
request an Ancillary Facility to be established by the conversion of any Lender’s
Available Revolving Facility Commitment (or any part of it) into an
Ancillary Facility Commitment with effect from the date (in this Clause 6, the “Effective Date”) specified in the
Conversion Notice (being a date not less than 3 Business Days after the
date such Conversion Notice is received by the Facility Agent).


 


(b)                                  Each Conversion Notice shall specify:


 


(i)                                    the nominated Ancillary Facility Lender;


 


(ii)                                the type of Ancillary Facility and the currency or currencies in which
the relevant


 


66

















 


Borrower wishes such Ancillary Facility to be
available;


 


(iii)                            the proposed Sterling Amount of the original Ancillary Facility
Commitment, being an amount equal to (i) the Available Revolving Facility
Commitment of the nominated Ancillary Facility Lender or, if less, (ii) equal
to or more than £5 million;


 


(iv)                               the commencement and expiry date for the relevant Ancillary Facility
(such expiry date not to extend beyond the Final Maturity Date in respect of
the Revolving Facility);


 


(v)                                   if the Ancillary Facility is an overdraft facility comprising more than
one account its maximum gross amount (that amount being the “Designated Gross Amount” and its maximum
net amount (that amount being the “Designated
Net Amount”;


 


(vi)                               such other details as to the nature, amount, fees for and operation of
the proposed Ancillary Facility as the Facility Agent and the nominated
Ancillary Facility Lender may reasonably require.


 


(c)                                  The Facility Agent shall promptly notify each of the Lenders having a
Revolving Facility Commitment of each Conversion Notice received pursuant to
paragraph (a) above.


 


(d)                                  Any Lender nominated as an Ancillary Facility Lender which has notified
the Facility Agent of its consent to such nomination shall be authorised to
make the proposed Ancillary Facility available in accordance with the
Conversion Notice (as approved by the Facility Agent) with effect on and from
the Effective Date. No other Lender shall be obliged to consent to the
nomination of the Ancillary Facility Lender.


 


(e)                                  Any material variation from the terms of the Ancillary Facility or any
proposed increase or reduction of the Ancillary Facility Commitment shall be
effected on and subject to the provisions of this Clause 6 mutatis
mutandis as if such Ancillary Facility were newly requested, provided
that the Sterling Amount of the Ancillary Facility Outstandings under each
Ancillary Facility shall at no time exceed the related Ancillary Facility
Commitment.


 


(f)                                    Each relevant Borrower may (subject to compliance with the
applicable terms of the relevant Ancillary Facility) at any time by giving
written notice to the Facility Agent and the relevant Ancillary Facility Lender
cancel any Ancillary Facility Commitment pursuant to and in accordance with
Clause 10.1 (Voluntary Cancellation), provided
that on the date of such cancellation, that part of such Ancillary
Facility Commitment as shall have been so cancelled shall be converted back
into the Revolving Facility Commitment of the relevant Lender unless the
Revolving Facility Commitments are also cancelled on such date.


 


(g)                                 The Ancillary Facility Commitment of any Ancillary Facility Lender shall
terminate and be cancelled on the date agreed therefor between the relevant
Ancillary Facility Lender and the relevant Borrower, provided such date shall
be no later than the Termination Date in respect of the Revolving Facility (the
“Ancillary Facility Termination Date”).
Any Ancillary Facility Outstandings on the applicable Ancillary Facility
Termination Date shall be repaid in full by the relevant Borrower on such date.


 


(h)                                 The Revolving Facility Commitment of each Lender at any time shall be
reduced by the amount of any Ancillary Facility Commitment of such Lender at
such time but shall, subject to any other provisions of this Agreement,
automatically be increased by the amount of any portion of its Ancillary
Facility Commitment which ceases to be made available to the relevant Borrowers
for any reason (other than as a result of Utilisation of it) in accordance with
the terms of such Ancillary Facility or is cancelled pursuant to paragraphs (f) or
(g) above.


 


67

















 


6.2                               Operation of Ancillary Facilities


 


(a)                                  Subject to paragraph (b) below, the terms governing the operation
of any Ancillary Facility (including the rate of interest (including default
interest), fees, commission and other remuneration in respect of such Ancillary
Facility) shall be those determined by agreement between the Ancillary Facility
Lender and the relevant Borrower, provided that such terms shall be based upon
the normal commercial terms and market rates of the relevant Ancillary Facility
Lender.


 


(b)                                  In the case of any inconsistency or conflict between the terms of any
Ancillary Facility, the applicable Ancillary Facility Documents and this Agreement,
the terms and provisions of the applicable Ancillary Facility Document shall
prevail unless the contrary intention is expressly provided for in this
Agreement.


 


(c)                                  Each relevant Borrower and Ancillary Facility Lender will promptly upon
request by the Facility Agent, supply the Facility Agent with such information
relating to the operation of each Ancillary Facility (including without
limitation details of the Ancillary Facility Outstandings and the Sterling
Amount thereof) as the Facility Agent may from time to time reasonably
request (and each relevant Borrower consents to such documents and information
being provided to the Facility Agent and the other Lenders).


 


6.3                               Ancillary Facility Default


 


(a)                                  If a default occurs under any Ancillary Facility, no Ancillary Facility
Lender may demand repayment of any monies or demand cash cover for any
Ancillary Facility Outstandings, or take any analogous action in respect of any
Ancillary Facility, until the Acceleration Date.


 


(b)                                  If an Acceleration Date occurs, the claims of each Lender with a
Revolving Facility Commitment and each Ancillary Facility Lender in respect of
amounts outstanding to them under the Revolving Facility and Ancillary
Facilities respectively shall be adjusted in accordance with this Clause 6.3 by
making all necessary transfers of such portions of such claims such that
following such transfers the Revolving Facility Outstandings and Ancillary
Facility Outstandings (together with the rights to receive interest, fees and
charges in relation thereto) of (i) each Lender with a Revolving Facility
Commitment and (ii) each Ancillary Facility Lender, in each case as at the
Acceleration Date shall be an amount corresponding pro rata
to the proportion that the sum of such Lender’s Revolving Facility Commitment
and/or (as the case may be) Ancillary Facility Commitment bears to the sum
of all of the Revolving Facility Commitments and the Ancillary Commitments,
each as at the Acceleration Date.


 


(c)                                  No later than the third Business Day following the Acceleration Date
each of the Ancillary Facility Lenders shall notify the Facility Agent in
writing of the Sterling Amount of its Ancillary Facility Outstandings as at the
close of business on the Acceleration Date, such amount to take account of any
clearing of debits which were entered into the clearing system of such
Ancillary Facility Lenders prior to the Acceleration Date and any amounts
credited to the relevant accounts prior to close of business on the
Acceleration Date.


 


(d)                                  On receipt of the information referred to in paragraph (c) above,
the Facility Agent will promptly determine what adjustment payments (if any)
are necessary as between the Lenders participating in the Revolving Facility
and each Ancillary Facility Lender in order to ensure that, following such
adjustment payments, the requirements of paragraph (b) above are complied
with.


 


(e)                                  The Facility Agent will notify all the Lenders as soon as practicable of
its determinations pursuant to paragraph (d) above, giving details of the
adjustment payments required to be


 


68

















 


made. Such adjustment payments shall be payable
by the relevant Lenders and shall be made to the Facility Agent within 3
Business Days following receipt of such notification from the Facility Agent. The
Facility Agent shall distribute the adjustment payments received, among the
Ancillary Facility Lenders and the Lenders participating in the Revolving
Facility in order to satisfy the requirements of paragraph (b) above.


 


(f)                                    If at any time following the Acceleration Date, the amount of Revolving
Facility Outstandings of any Lender or Ancillary Facility Outstandings of any
Ancillary Facility Lender used in the Facility Agent’s calculation of the
adjustments required under paragraph (d) above should vary for any reason
(other than as a result of currency exchange fluctuation or other reason which
affects all relevant Lenders equally), further adjustment payments shall be
made on the same basis (mutatis mutandis)
provided for in this Clause 6.3.


 


(g)                                 In respect of any amount paid by any Lender (a “Paying Lender”) pursuant to either of
paragraphs (e) or (f) above, as between a relevant Borrower and the
Paying Lender, the amount so paid shall be immediately due and payable by such
relevant Borrower to the Paying Lender and the payment obligations of such
relevant Borrower to the Lender(s) which received such payment shall be treated
as correspondingly reduced by the amount of such payment.


 


(h)                                 Each Lender shall promptly supply to the Facility Agent such information
as the Facility Agent may from time to time request for the purpose of
giving effect to this Clause 6.3.


 


(i)                                    If an Ancillary Facility Lender has the benefit of any Encumbrance
securing any of its Ancillary Facilities, the realisations from such security
when enforced will be treated as an amount recovered by such Ancillary Facility
Lender in its capacity as a Lender which is subject to the sharing arrangements
in Clause 35 (Sharing Among the Finance Parties)
to the intent that such realisation should benefit all Lenders pro rata.


 


7.                                      OPTIONAL CURRENCIES


 


7.1                               Selection of Currency


 


Each relevant Borrower under the Revolving Facility
shall select the currency of a Revolving Facility Advance made to it (which
shall be Sterling, Dollars, euro or an Optional Currency) in the Utilisation
Request relating to the relevant Revolving Facility Advance.


 


7.2                               Unavailability of Optional Currency


 


If before 10.00 a.m. on the Quotation Date for
the relevant Revolving Facility Advance:


 


(a)                                  a Lender notifies the Facility Agent that the relevant Optional Currency
is not readily available to it in the amount required; or


 


(b)                                  a Lender notifies the Facility Agent that compliance with its obligation
to participate in the Revolving Facility Advance in the proposed Optional
Currency would contravene a Law or regulation applicable to it,


 


the Facility Agent will promptly give notice to the
relevant Borrower to that effect. In this event, any Lender that gives notice
pursuant to this Clause 7.2 will be required to participate in the relevant
Revolving Facility Advance in Sterling (in an amount equal to that Lender’s
Proportion of the Sterling Amount of the relevant Revolving Facility Advance
or, in respect of a Rollover Advance, an amount equal to that Lender’s
Proportion of the Sterling Amount of any amount that the Lenders are actually
required to advance in accordance with Clause 8.2 (Rollover
Advances)), and its participation will be treated as a separate
Advance denominated in Sterling during that Term.


 


69

















 


8.                                      REPAYMENT OF REVOLVING FACILITY OUTSTANDINGS


 


8.1                               Repayment of Revolving Facility Advances


 


Each relevant Borrower shall (subject to Clause 8.2 (Rollover Advances)) repay the full amount of each Revolving
Facility Advance drawn by it on its Repayment Date.


 


8.2                               Rollover Advances


 


Without prejudice to each relevant Borrower’s
obligation to repay the full amount of each Revolving Facility Advance made to
it on the applicable Repayment Date, where, on the same day on which such
relevant Borrower is due to repay a Revolving Facility Advance (a “Maturing Advance”) such relevant Borrower
has also requested that a Revolving Facility Advance in the same currency as
and in an amount which is equal to or less than the Maturing Advance be made to
it (a “Rollover Advance”), subject
to the Lenders being obliged to make such Rollover Advance under Clause 4.1 (Conditions to Utilisation), the amount to be so repaid and
the amount to be so drawn down shall be netted off against each other so that
the amount which such relevant Borrower is actually required to repay on the
applicable Repayment Date shall be the net amount remaining after such netting
off.


 


8.3                               Cash Collateralisation of Documentary Credits


 


A relevant Borrower may give the Facility Agent
not less than 5 Business Days’ prior written notice of its intention to repay
all or any portion of a Documentary Credit requested by it and, having given
such notice, shall procure that the relevant Outstanding L/C Amount in respect
of such Documentary Credit is reduced in accordance with such notice by
providing cash cover therefor in accordance with Clause 1.8 (Documentary Credits) (in each case,) or by reducing the
Outstanding L/C Amount of such Documentary Credit or by cancelling such
Documentary Credit and returning the original to the L/C Bank or the Facility
Agent on behalf of the Lenders.


 


8.4                               Final Repayment


 


The Company shall procure that all amounts outstanding
under the Revolving Facility shall be repaid in full on its Final Maturity
Date.


 


9.                                      REPAYMENT OF TERM FACILITY OUTSTANDINGS


 


9.1                               Repayment of A Facility Outstandings and A1 Facility Outstandings


 


The relevant Borrowers shall make such repayments as may be
necessary to ensure that on each of the dates set out in the table below (each
a “Repayment Date”) the aggregate
Sterling Amount of the A Facility Outstandings and A1 Facility Outstandings (as
at the close of business in London on the Merger Closing Date or the Baseball
Effective Date, as applicable) is reduced by an amount equal to the amount set
out in the table below (each, an “A Facility  Repayment Instalment” or an “A1 Facility Repayment Instalment” (as applicable)).


 


	
   

  	
   

  	
  Amount Repayable

  
	
  Repayment Date

  	
   

  	
  A Facility

  	
   

  	
  A1 Facility

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2007

  	
   

  	
  £225 million

  	
   

  	
  £12 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2008

  	
   

  	
  £225 million

  	
   

  	
  £12 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2008

  	
   

  	
  £225 million

  	
   

  	
  £12 million

  



 


70

















 


	
   

  	
   

  	
  Amount Repayable

  
	
  Repayment Date

  	
   

  	
  A Facility

  	
   

  	
  A1 Facility

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2009

  	
   

  	
  £250 million

  	
   

  	
  £15 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2009

  	
   

  	
  £450 million

  	
   

  	
  £25 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 March 2010

  	
   

  	
  £500 million

  	
   

  	
  £27 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 September 2010

  	
   

  	
  £550 million

  	
   

  	
  £30 million

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Final Maturity Date

  	
   

  	
  £775 million

  	
   

  	
  £42 million

  
	
   

  	
   

  	
  or such other amounts outstanding in respect of the
  A Facility on the Final Maturity Date.

  	
   

  	
  or such other amounts outstanding in respect of the
  A1 Facility on the Final Maturity Date.

  
							



 


9.2                               No Reborrowing of A Facility Advances or A1 Facility Advances


 


No Borrower may reborrow any part of any A
Facility Advance or the A1 Facility Advance which is repaid.


 


9.3                               Repayment of B Facility Outstandings and B1 Facility Outstandings


 


The relevant Borrower shall repay the aggregate
outstanding principal amount of the B Facility Advance and the B1 Facility
Advances in full in one instalment on the applicable Final Maturity Date.


 


10.                               CANCELLATION


 


10.1                        Voluntary Cancellation


 


The Company may, by giving to the Facility Agent not
less than 3 Business Days’ prior written notice to that effect (unless an
Instructing Group has given its prior consent to a shorter period or, with
respect to the A1 Facility and the B1 Facility, a Baseball Instructing Group)
cancel any Available Facility in whole or any part (but if in part, in an
amount that reduces the Sterling Amount of such Facility by a minimum amount of
£5,000,000 and an integral multiple of £1,000,000) and any such cancellation
shall (subject to the provisions of Clause 6.1(g) (Utilisation
of Ancillary Facilities), reduce the relevant Available Commitments
of the Lenders rateably.


 


10.2                        Notice of Cancellation


 


Any notice of cancellation given by the Company
pursuant to Clause 10.1 (Voluntary Cancellation)
shall be irrevocable and shall specify the date upon which such cancellation is
to be made and the amount of such cancellation.


 


10.3                        Cancellation of Available Commitments


 


(a)                                  On each Termination Date any Available Commitments in respect of the
Facility to which such Termination Date relates shall automatically be
cancelled and the Commitment of each Lender in relation to such Facility shall
automatically be reduced to zero.


 


71

















 


(b)                                  No Available Commitments which have been cancelled hereunder may thereafter
be reinstated.


 


11.                               VOLUNTARY PREPAYMENT


 


11.1                        Voluntary Prepayment


 


(a)                                  Any Borrower may, by giving to the Facility Agent not less than 5
Business Days’ prior written notice to that effect (unless an Instructing
Group, or in the case of an A1 Facility Advance and/or B1 Facility Advance, a
Baseball Instructing Group) has given its prior consent to a shorter period):


 


(i)                                    repay the A Facility Advance or A1 Facility Advance (as applicable)
drawn by it in whole or in part (but if in part, in an amount that reduces
the Sterling Amount of the A Facility Advance or A1 Facility Advance (as
applicable) by a minimum amount of £5,000,000 and an integral multiple of
£1,000,000) together with accrued interest on the amount repaid without premium
or penalty but subject to the payment of any Break Costs (if applicable); and


 


(ii)                                repay the B Facility Advance and the B1 Facility Advance drawn by it in
whole or in part (but if in part, in an amount that reduces the Sterling
Amount of the B Facility Advance and the B1 Facility Advance by a minimum
amount of £5,000,000 and an integral multiple of £1,000,000), together with
accrued interest on the amount repaid without premium or penalty but subject to
the payment of any Break Costs (if applicable) and subject to a 1.00%
prepayment premium payable on the principal amount being repaid during the
first 18 months from the Merger Closing Date (or the Structuring Date,
whichever is later).


 


(b)                                  Without prejudice to the provisions of paragraph (a) above, the
Company may at its option, at any time on or prior to 31 December 2006,
refinance the whole (but not part only) of any A1 Facility Outstandings
and B1 Facility Outstandings from the proceeds of a Stand Alone Baseball
Financing


 


11.2                        Right of Prepayment and Cancellation in relation to a single Lender


 


If any sum payable to any Lender by an Obligor is
required to be increased under Clause 17.1 (Tax Gross-up)
or a Lender claims indemnification from a Borrower under the provisions of
Clause 17.3 (Tax Indemnity) or Clause 18.1 (Increased Costs) that Borrower may elect by providing,
at least 5 Business Days’ prior notice of its intention to repay or to
cause to be repaid such Lender’s share of the Outstandings to the Facility
Agent, to repay such Lender’s share of the Outstandings on a non-pro rata basis
and immediately to cancel any Commitments then outstanding of such Lender. In
such event, such Borrower shall procure that, on the last day of each of the
then current Interest Periods or Terms (as the case may be) such Lender’s
portion of each Advance to which each such Interest Period or Term relates is
repaid and if the relevant Lender is also an L/C Bank, such Borrower shall
procure that the relevant Outstanding L/C Amount(s) are reduced to zero and if
the relevant Lender is also an Ancillary Facility Lender, such Borrower shall
repay the relevant Ancillary Facility Outstandings in full.


 


11.3                        Application of Repayments


 


(a)                                  To the extent applicable, any repayment made pursuant to Clauses 11.1 (Voluntary Prepayment), 12.2 (Repayment from Net Proceeds), 12.4 (Repayment from Excess Cash Flow), 12.5 (Repayment from Debt Proceeds) and 12.6 (Repayment from Equity Proceeds) and, to
the extent applicable, any repayment made under Clause 12.7 (Repayments from Securitisations) under
the circumstances set out therein, shall be applied at the end of the


 


72

















 


Interest Period or Term current at the time of
receipt of such proceeds subject to paragraph (c) below, firstly, in
repayment of the Term Facility Outstandings pro rata to the
aggregate amount of A Facility Outstandings, A1 Facility Outstandings, B
Facility Outstandings, and B1 Facility Outstandings on the date of such
repayment until all A Facility Outstandings, all A1 Facility Outstandings, all
B Facility Outstandings and all B1 Facility Outstandings have been repaid in
full and, secondly, in repayment of Revolving Facility Outstandings on the date
of such repayment.


 


(b)                                  Any repayment of A Facility Outstandings or the A1 Facility Outstandings
(as applicable) made pursuant to paragraph (a) shall either:


 


(i)                                    reduce each of the remaining Repayment Instalments for the A Facility or
the A1 Facility (as applicable) on a pro rata basis;
or


 


(ii)                                at the election of the Company made on or prior to the date upon which
such repayment of the A Facility Outstandings or the A1 Facility Outstandings
is made pursuant to paragraph (a) above, repay the immediately succeeding
four Repayment Instalments for the A Facility and/or the A1 Facility in
chronological order of maturity, and thereafter in respect of any excess,
reduce each of the remaining Repayment Instalments for the A Facility or the A1
Facility on a pro rata basis.


 


(c)                                  Without prejudice to the provisions of paragraph (a) above, any
Lender under the B Facility (a “B Facility
Lender”) or the B1 Facility (a “B1
Facility Lender”), may at its sole discretion during the first
18 months from the Merger Closing Date (or the Structuring Date, whichever is
later) (other than in the case of a prepayment in full of the B Facility or the
B1 Facility) notify the Facility Agent at least 3 Business Days in advance that
it does not wish to receive its share of the prepayment of the B Facility
Outstandings or B1 Facility Outstandings, as applicable, to be made pursuant to
paragraph (a), at the time such prepayment is to be made. In the event of such
notification, the amount which would have been applied in prepaying such B
Facility Lender or B1 Facility Lender, as applicable, shall instead be applied
in prepayment to the Lenders of the A Facility, the A1 Facility and any
non-declining B Facility Lenders or any non declining B1 Facility Lenders, as
applicable, on a pro rata basis.


 


(d)                                  Any repayment of any Revolving Facility Outstandings under this
Agreement shall be applied first against Revolving Facility Advances and when
all Revolving Facility Advances have been repaid in full, to provide cash
collateral in respect of any Outstanding L/C Amounts.


 


11.4                        Release from Obligation to make Advances


 


A Lender for whose account a repayment is to be made
under Clause 11.2 (Right of Prepayment and
Cancellation in relation to a single Lender) shall
not be obliged to participate in the making of Advances (including Revolving
Facility Advances) or in the issue or counter-guarantee in respect of
Documentary Credits or in the provision of Ancillary Facilities on or after the
date upon which the Facility Agent receives the relevant notice of intention to
repay such Lender’s share of the Outstandings, on which date all of such Lender’s
Available Commitments shall be cancelled and all of its Commitments shall be
reduced to zero.


 


11.5                        Notice of Repayment


 


Any notice of repayment given by a Borrower pursuant
to Clauses 11.1 (Voluntary Prepayment) or 11.2 (Right of Prepayment and Cancellation in relation to a single Lender)
shall be irrevocable, shall specify the date upon which such repayment is to be
made and the amount of such repayment and shall oblige that Borrower to make
such repayment on such date.


 


73

















 


11.6                        Restrictions on Repayment


 


No Borrower may repay all or any part of any
Advance  (including, at any time, a
Revolving Facility Advance) except at the times and in the manner expressly
provided for in this Agreement.


 


11.7                        Cancellation upon Repayment


 


No amount repaid under this Agreement may subsequently
be reborrowed other than any amount of a Revolving Facility Advance repaid in
accordance with Clause 8.1 (Repayment of Revolving
Facility Advances) or any Documentary Credit repaid in accordance
with this Agreement on or prior to the Final Maturity Date in respect of the
Revolving Facility and upon any repayment (other than in respect of a Revolving
Facility Advance, as aforesaid) the availability of the relevant Facility shall
be reduced by an amount corresponding to the amount of such repayment and the
Available Commitment of each Lender in relation to that Facility shall be
cancelled in an amount equal to such Lender’s Proportion of the amount repaid. For
the avoidance of doubt, unless expressly agreed to the contrary in the relevant
Ancillary Facility Documents, this Clause 11.7 shall not apply to any Ancillary
Facility.


 


12.                               MANDATORY PREPAYMENT AND CANCELLATION


 


12.1                        Change of Control


 


If a Change of Control occurs, all of the Available
Commitments shall immediately be cancelled, the Commitments of each Lender in
respect of each Facility shall be reduced to zero and the Company shall procure
that the Outstandings are immediately repaid in full together with unpaid
interest accrued thereon and all other amounts payable pursuant to Clause 31 (Borrowers’ Indemnities) and any other provision of this
Agreement.


 


12.2                        Repayment from Net Proceeds


 


(a)                                  The Company shall procure that, subject to paragraph (b) below or
unless the Facility Agent (acting on the instructions of an Instructing Group)
otherwise agrees, an amount equal to the Net Proceeds received:


 


(i)                                    by any member of the Bank Group in respect of any Disposal of such
member’s assets or business in aggregate in excess of £30 million (or its
equivalent in other currencies) in any financial year of the Company; or


 


(ii)                                by any member of the Bank Group in respect of any insurance policy in
aggregate exceeding £15 million (or its equivalent in other currencies) in any
financial year of the Company,


 


is applied in or
towards repayment of the Outstandings in accordance with Clause 11.3 (Application of Repayments) at the end of the Interest Period
next ending on or after the 10th Business Day following the date of
receipt of such Net Proceeds.


 


(b)                                  Paragraph (a) shall not apply to Net Proceeds arising:


 


(i)                                    from a Disposal where such Net Proceeds are used for the acquisition of
or reinvestment in assets used or useful in the Group Business or in a business
whose primary operations are directly related to the Group Business or are
applied towards capital expenditure of the Bank Group, in each case, within 12
months of the date of the receipt of such Net Proceeds and to the extent not
otherwise restricted by the provisions of this Agreement;


 


74

















 


(ii)                                from any Disposal permitted under Clause 25.6 (Disposals)
other than in relation to Disposals permitted under paragraphs (b) (with
respect to surplus assets only and where the Net Proceeds of such Disposal, or
a series of Disposals forming part of the same transaction exceeds
£5,000,000), (j), (k), (o)(ii), (p), (q), (s) and (w);


 


(iii)                            from any insurance recovery, where the Net Proceeds arising out of the
same are to be applied within 12 months of receipt in replacing, reinstating or
repairing the relevant damaged or destroyed assets or in refinancing any
expenditure incurred in the replacement, reinstatement and/or repair of such
assets or for the acquisition of or reinvestment in assets acquired for use in
the Group Business or in a business whose primary operations are directly
related to the Group Business for application towards capital expenditure; or


 


(iv)                               from any Content Transaction which shall instead be applied as follows:


 


(A)                               the first £200 million shall be retained by the Bank Group and, provided
that no Event of Default has occurred or would arise as a result of such
payment, may be applied towards the making of Permitted Payments;


 


(B)                               a percentage of the remainder shall be applied in mandatory prepayment
of the Term Facilities, such percentage being determined in accordance with the
Leverage Ratio as at the time of such Disposal, in accordance with the
following table:


 


	
  Leverage Ratio

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than 4.0:1

  	
   

  	
  50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than 3.0:1 but less than or equal
  to 4.0:1

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal to 3.0 : 1

  	
   

  	
  0

  	
  %

  



 


(C)                               any Net Proceeds which are not distributed in accordance with (A) above
or required to be applied in mandatory prepayment in accordance with (B) above,
shall be retained within the Bank Group,


 


provided
that to the extent that any Net Proceeds are not applied in accordance with
sub-paragraphs (i) or (iii) above (as applicable) within the
applicable time periods specified such amounts shall, subject to Clause 12.3 (Blocked Accounts), be applied in or towards repayment of
Outstandings in accordance with Clause 11.3 (Application
of Repayments).


 


12.3                        Blocked Accounts


 


(a)                                  In relation to any amount in excess of £30 million of Net Proceeds
referred to in paragraphs (b)(i) and (b)(iii) of Clause 12.2 (Repayment from Net Proceeds), and any amount of Equity Proceeds contributed to the Bank Group
under sub-paragraph (b)(ii) of Clause 12.6 (Repayment
from Equity Proceeds) pending the acquisition, reinvestment,
replacement, reinstatement or repair or application towards any capital
expenditure, acquisition or investment as contemplated by such provisions, all
such amounts shall be deposited in a Blocked Account.


 


(b)                                  At the election of the relevant Borrower, any amounts required to be
prepaid under Clause 12.2 (Repayment from Net
Proceeds), Clause 12.4 (Repayment from Excess Cash
Flow), Clause 12.5 (Repayment from Debt
Proceeds), Clause 12.6 (Repayment from Equity
Proceeds) or Clause 12.7 (Repayment from
Securitisations) may be deposited into a Blocked


 


75

















 


Account upon receipt thereof and applied by the
Facility Agent in repayment of the Outstandings in accordance with Clause 11.3
(Application of Repayments), at the end
of the then applicable Interest Period.


 


(c)                                  While there are any Outstandings or any of the Commitments are available
for drawing, no amount shall be withdrawn from any Blocked Account by any
member of the Group or the Facility Agent except for:


 


(i)                                    amounts to be applied (and which are then applied) in accordance with
paragraph (a) above;


 


(ii)                                amounts to be applied (and which are then applied) in accordance with
paragraph (b) above; or


 


(iii)                            following the Acceleration Date, applications by the Facility Agent of
the whole or any part of the sums standing to the credit of a Blocked
Account in or towards payment of any sums due and unpaid at any time from any
Obligor under any Finance Document.


 


12.4                        Repayment from Excess Cash Flow


 


(a)                                  The Company shall ensure that, to the extent Excess Cash Flow exceeds
£25 million in any financial year (from and including the financial year ended
31 December 2006) of the Company, subject to paragraphs (b) and (c) below,
an amount equal to:


 


(i)                                    50% of Excess Cash Flow in such financial year of the Company, in the
event that the Compliance Certificate delivered pursuant to Clause 22.5 (Compliance Certificates) and the annual financial
information delivered pursuant to Clause 22.1 (Financial
Statements) demonstrate that the ratio of Consolidated Net Debt as
at the end of such financial year to Consolidated Operating Cashflow for such
financial year is greater than or equal to 4:1; or


 


(ii)                                25% of Excess Cash Flow in such financial year of the Company, in the
event that the Compliance Certificate delivered pursuant to Clause 22.5 (Compliance Certificates) and the annual financial
information delivered pursuant to Clause 22.1 (Financial
Statements) demonstrate that the ratio of Consolidated Net Debt as
at the end of such financial year to Consolidated Operating Cashflow for such financial
year, is less than 4:1 but more than or equal 3.0:1,


 


is, subject to
paragraph (c) of Clause 12.3 (Blocked Accounts),
applied within 10 Business Days of the filing by the Ultimate Parent of its
audited financial statements, provided that any such payment may be
deferred by a period of up to 30 days if the management of the Ultimate Parent,
acting reasonably and in good faith, are able to demonstrate to the
satisfaction of the Facility Agent (acting reasonably) that the cash reserves
of the Group would be reduced temporarily by such payment to below £200 million
(for this purpose disregarding any availability under the Revolving Facility).


 


(b)                                  Subject to paragraph (c) below, no repayments shall be required
under paragraph (a) above in the event that the Compliance Certificate
most recently delivered pursuant to Clause 22.5 (Compliance
Certificates) and the annual financial information delivered
pursuant to Clause 22.1 (Financial
Statements) demonstrate that the ratio of Consolidated Net Debt as
at the end of such financial year to Consolidated Operating Cashflow for the
relevant financial year, is less than 3:1.


 


76

















 


(c)                                  In respect of the financial year ended 31 December 2006, the
calculation of any Excess Cash Flow pursuant to paragraphs (a) and (b) above,
shall be calculated by reference to the Excess Cash Flow for the period
commencing on but excluding the Merger Closing Date (or, in the case of Excess
Cash Flow attributable to that part of Bank Group Cash Flow attributable
to the Baseball Group, the Baseball Effective Date) to and including 31 December 2006.


 


12.5                        Repayment from Debt Proceeds


 


(a)                                  The Ultimate Parent shall, subject to paragraph (c) of Clause 12.3
(Blocked Accounts) and paragraph (b) below
(or to the Facility Agent (acting on the instructions of an Instructing Group)
having otherwise agreed), procure that 50% of Debt Proceeds raised by any
member of the Group in connection with any single raising of Debt Proceeds
which exceeds £10 million shall be applied in prepayment of Outstandings,
in accordance with Clause 11.3 (Application of Repayments)
within 10 Business Days following receipt of such Debt Proceeds.


 


(b)                                  Paragraph (a) above shall not apply to:


 


(i)                                    any Financial Indebtedness raised under the Bridge Facility Agreement,
the Alternative Bridge Facility Agreement, the Exchange Notes or the New High
Yield Notes, and in the case of the latter up to the aggregate of (A) the
aggregate principal amount outstanding under the Bridge Facility or the
Alternative Bridge Facility (as the case may be), (B) any accrued
interest thereon, (C) any contractual premium payable in respect thereof
and (D) any fees, costs, expenses, commissions and other similar charges
reasonably incurred in connection with such financing;


 


(ii)                                any Financial Indebtedness raised in connection with any High Yield Debt
Refinancing;


 


(iii)                            any Financial Indebtedness in respect of any Hedging Agreement entered
into by any member of the Group;


 


(iv)                               any Financial Indebtedness raised by any member of the Group from any
other member of the Group to the extent not otherwise prohibited by this
Agreement;


 


(v)                                   any Financial Indebtedness to the extent raised by any member of the
Bank Group which is permitted by Clause 25.4 (Financial Indebtedness);


 


(vi)                               Financial Indebtedness constituting Parent Debt which is incurred in
compliance with the provisions of Clause 25.18 (Parent Debt);


 


(vii)                           any Financial Indebtedness to the extent raised by any member of the
Group (other than a member of the Bank Group) the proceeds of which are
contributed to the Bank Group in accordance with Clause 24.15 (Contributions to the Bank Group);


 


(viii)                       any Financial Indebtedness constituting any “daylight loans” which are
expressly contemplated by the Steps Paper (and as such term is defined or
referred to therein);


 


(ix)                              any net cash proceeds of any debt issuances which are expressly
contemplated in the Steps Paper;


 


(x)                                  with the prior written consent of an Instructing Group, any Financial
Indebtedness raised by any member of the Group which is not a member of the
Bank Group, the proceeds of which shall be applied towards the financing of an
acquisition to be made by such person or any other member of the Group which is
not a member of the Bank 


 


77

















 


Group;


 


(xi)                              any Financial Indebtedness which constitutes Merger Indebtedness;


 


(xii)                          any Financial Indebtedness contemplated by the provisions of the
Commitment Letter and to be incurred following delivery of a Structure Notice;


 


(xiii)                      any Financial Indebtedness raised by any Permitted Joint Venture;


 


(xiv)                         any proceeds of any Stand Alone Baseball Financing; or


 


(xv)                             any proceeds of any Alternative Baseball Financing,


 


provided that in
the case of sub-paragraph (vii) above, such Debt Proceeds shall
within 90 days of receipt thereof, be contributed into the Bank Group and
deposited into a Blocked Account as contemplated by Clause 12.3 (Blocked Accounts) and if not applied
within 90 days after such deposit shall, subject to paragraph (b) of
Clause 12.3 (Blocked Accounts), be applied in
or towards repayment of Outstandings in accordance with Clause 11.3 (Application of Repayments).


 


12.6                        Repayment from Equity Proceeds


 


(a)                                  The Ultimate Parent shall procure that subject to paragraph (c) of
Clause 12.3 (Blocked Accounts) and paragraph (b) below,
an amount equal to:


 


(i)                                    50% of Equity Proceeds, in the event that the Compliance Certificate
most recently delivered pursuant to Clause 22.5 (Compliance
Certificates) and the quarterly financial information delivered
pursuant to Clause 22.1 (Financial
Statements) for each Financial Quarter ending on the Quarter Date to
which such Compliance Certificate relates demonstrate that the ratio of
Consolidated Net Debt as at such Quarter Date to Consolidated Operating
Cashflow for the Financial Quarter ending on such Quarter Date, calculated on
an annualised basis, is more than 3.5:1;


 


(ii)                                25% of Equity Proceeds, in the event that the Compliance Certificate
most recently delivered pursuant to Clause 22.5 (Compliance
Certificates) and the quarterly financial information delivered
pursuant to Clause 22.1 (Financial
Statements) for each Financial Quarter ending on the Quarter Date to
which such Compliance Certificate relates demonstrate that the ratio of
Consolidated Net Debt as at such Quarter Date to Consolidated Operating
Cashflow for the Financial Quarter ending on such Quarter Date calculated on an
annualised basis, is 3.5:1 or less but is more than 3:1; or


 


(iii)                            0% of Equity Proceeds, in the event that the Compliance Certificate most
recently delivered pursuant to Clause 22.5 (Compliance
Certificates) and the quarterly financial information delivered
pursuant to Clause 22.1 (Financial
Statements) for each Financial Quarter ending on the Quarter Date to
which such Compliance Certificate relates demonstrate that the ratio of
Consolidated Net Debt as at such Quarter Date to Consolidated Operating
Cashflow for the Financial Quarter ending on such Quarter Date calculated on an
annualised basis, is equal to or less than 3:1,


 


shall be contributed
to a member of the Bank Group in accordance with Clause 24.15 (Contributions to the Bank Group) and
applied in or towards repayment of A Facility Outstandings in accordance with
Clause 11.3 (Application of Repayments), in
each case, within 10 Business Days following receipt of such Equity
Proceeds provided that no amount of Equity Proceeds shall be required to be
prepaid under this paragraph (a) unless the amount


 


78

















 


of Equity Proceeds
received by the Group in connection with any single raising of Equity Proceeds
exceeds £10 million (or its equivalent in other currencies).


 


(b)                                  Paragraph (a) shall not apply to any Equity Proceeds:


 


(i)                                    to the extent that any Borrower has made a voluntary prepayment of the
Outstandings in accordance with Clause 11.1 (Voluntary
Prepayment) using the proceeds of any Parent Debt (the “Voluntary Prepayment Amount”) and, in the
case of the Revolving Facility Outstandings, the aggregate Revolving Facility
Commitments have been permanently cancelled by an amount equal to the amount of
Revolving Facility Outstandings so prepaid and such Equity Proceeds are applied
in prepayment of the Parent Debt so used;


 


(ii)                                to the extent contributed to or invested in the Bank Group in accordance
with Clause 24.15 (Contributions to the
Bank Group) and thereafter applied by the ultimate recipient thereof
towards capital expenditure or the purchase price of any acquisition or
investment to the extent permitted by Clause 25.13 (Acquisitions
and Investments);


 


(iii)                            to the extent raised by any member of the Group which is a Joint Venture
but which is not a member of the Bank Group and applied for its own purposes;


 


(iv)                               arising from the exercise of stock options or any similar securities
issued to directors, officers, employees or consultants of any member of the
Group;


 


(v)                                   in respect of any equity issuance expressly contemplated in the Steps
Paper; or


 


(vi)                               in respect of any New Equity issued by the Ultimate Parent and applied
for the purposes permitted under Clause 23.3 (Equity Cure
Right) or paragraph (o) of Clause 25.13 (Acquisitions
and Investments),


 


provided that in
the case of sub-paragraph (ii) above, such Equity Proceeds shall
immediately upon their contribution into the Bank Group, be deposited into a
Blocked Account and if not applied in accordance with sub-paragraph (ii), as
the case may be, within 180 days of such receipt, shall, subject to
paragraph (b) of Clause 12.3 (Blocked Accounts)
be applied in or towards repayment of Outstandings in accordance with Clause
11.3 (Application of Repayments).


 


12.7                        Repayment from Securitisations


 


All net cash proceeds received by any member of the
Bank Group in respect of any asset securitisation permitted under paragraph (i) of
Clause 25.6 (Disposals), shall be
applied, first, to permanently cancel the Available Revolving Facility
Commitment in an amount equal to such net cash proceeds received (with
corresponding amount of cash proceeds to be retained for use by any member of
the Bank Group towards any purpose determined by it) and, thereafter, be
applied in permanent prepayment of any Revolving Facility Outstandings or, to
the extent that there are no Revolving Facility Outstandings and the Available
Revolving Facility Commitments have been reduced to zero, in prepayment in
accordance with Clause 11.3 (Application of
Repayments).


 


12.8                        Trapped Cash


 


If:


 


(a)                                  moneys are required to be applied in prepayment or repayment of the
Facilities under this Clause 12 (Mandatory Prepayments and
Cancellation), but in order to be so applied such


 


79

















 


moneys need to be upstreamed or otherwise
transferred from one member of the Group to another member of the Group to
effect such prepayment or repayment; and


 


(b)                                  the Company and the relevant members of the Group determine in good
faith that such moneys cannot be so upstreamed or transferred without breaching
a financial assistance prohibition, causing a director to breach his or her
fiduciary duties to a company or without breaching some other legal
prohibition, or such upstreaming or transfer is otherwise unlawful or would
result in material adverse tax consequences for the Company or such relevant
members of the Group,


 


then, there will be
no obligation to make such payment or prepayment until such impediment no
longer applies, provided that:


 


(i)                                    during such period, (to the extent lawful) the monies will be placed in
a Blocked Account;


 


(ii)                                in the case of any impediment relating to potential material adverse tax
consequences, the Company shall procure that the prepayment obligations under
this Clause 12 (Mandatory Prepayments and Cancellation),
shall be complied with by using the proceeds retained to repay Outstandings
owing by the member of the Group which received such proceeds provided that
such payment itself does not create a potential material adverse tax
consequence; and


 


(iii)                            the Company and the relevant members of the Group will use all
reasonable endeavours to overcome any impediments described in this Clause.


 


13.                               INTEREST ON REVOLVING FACILITY ADVANCES


 


13.1                        Interest Payment Date for Revolving Facility Advances


 


On (a) each Repayment Date (and, if the Term of
any Revolving Facility Advance exceeds 6 months, on the expiry of each period
of 6 months during such Term) or (b) if Clause 17.2(d) applies, the
relevant Confirmation Date, the relevant Borrowers shall pay accrued interest
on each Revolving Facility Advance made to it.


 


13.2                        Interest Rate for Revolving Facility Advances


 


The rate of interest applicable to each Revolving
Facility Advance during its Term shall be the rate per annum which is the sum
of the Revolving Facility Margin, the Associated Costs Rate for such Advance at
such time (if applicable) and, in relation to any Revolving Facility Advance
denominated in euro, EURIBOR, or in relation to any Revolving Facility Advance
denominated in any other currency, LIBOR, for the relevant Term.


 


13.3                        Margin Ratchet for Revolving Facility Advances


 


(a)                                  Subject to paragraph (c) of this Clause 13.3, if in respect of any
Quarter Date falling not less than 3 months after the Merger Closing Date, the
ratio of Consolidated Net Debt to Consolidated Operating Cashflow computed on
the same basis as the ratio set out in paragraph (a) of Clause 23.2 (Ratios) is within the range of ratios set
out in column 1 of the table set out below, then the Revolving Facility Margin
shall be reduced or increased to the percentage rate per annum set out opposite
the relevant range in column 2.


 


80






 













 


	
  Leverage Ratio

  	
   

  	
  Margin

  	
   

  
	
  Less than
  3.00 : 1

  	
   

  	
  1.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to 3.00 : 1 but less than 3.40 : 1

  	
   

  	
  1.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to 3.40 : 1 but less than 3.80 : 1

  	
   

  	
  1.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to 3.80 : 1 but less than 4.20 : 1

  	
   

  	
  1.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to 4.20 : 1 but less than 4.50 : 1

  	
   

  	
  1.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to 4.50 : 1 but less than 4.80 : 1

  	
   

  	
  1.875

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to 4.80 : 1 but less than 5.00 : 1

  	
   

  	
  2.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than
  or equal to 5.00

  	
   

  	
  2.250

  	
  %

  



 


(b)                                  Any
reduction or increase to the Revolving Facility Margin in accordance with
paragraph (a) above shall take effect in relation to Revolving Facility
Advances with effect from the date of receipt by the Facility Agent in respect
of the relevant Quarter Date of:


 


(i)                                    the
quarterly financial information required to be delivered in accordance with
Clause 22.1 (Financial Statements); and


 


(ii)                                a
Compliance Certificate required to be delivered in accordance with Clause 22.5
(Compliance Certificates)
evidencing the relevant ratio of Consolidated Net Debt to Consolidated
Operating Cashflow,


 


and shall apply until the date of receipt by
the Facility Agent of the quarterly financial information and Compliance
Certificate in respect of the next succeeding Quarter Date on which the
financial covenants are required to be tested pursuant to Clause 23.2 (Ratios) having regard to the provisions of
paragraph (e) thereof (or if such financial information and Compliance
Certificate are not so delivered, the last day upon which such financial
information and Compliance Certificate should have been so delivered in
accordance with Clause 22.1 (Financial Statements)
and Clause 22.5 (Compliance Certificates)
in respect of such Quarter Date) whereupon the Revolving Facility Margin shall
be recalculated on the basis of such financial information and Compliance
Certificate.


 


(c)                                  Upon
the occurrence of any Event of Default, the Revolving Facility Margin shall
revert to 2.25% and shall remain at such rate for so long as such Event of
Default is continuing and when such Event of Default ceases to be continuing it
shall revert:


 


(i)                                    in
the case of an Event of Default set out in paragraph (c) of Clause 27.2 (Covenants), upon the date on which the
Facility Agent has received a Compliance Certificate confirming compliance with
the financial covenants set out in Clause 23 (Financial
Condition); or


 


(ii)                                in
the case of any other Event of Default either (A) upon the date on which the
Facility Agent has received a certificate of a duly authorised officer of the
Company certifying that such Event of Default has been remedied, in which case,
immediately upon receipt of such certificate or (B) where the Lenders have
waived such Event of Default in accordance with the terms of this Agreement,
immediately upon the Facility Agent having confirmed to the Company that such
Event of Default has been waived,


 


81

















 


in each case, to the applicable rate provided
in paragraph (a) above by reference to:


 


(x)                                  in the case of an Event of Default of the type referred to in
paragraph (c)(i) above, the ratio of Consolidated Net Debt to Consolidated
Operating Cashflow set out in the Compliance Certificate referred to therein;
or


 


(y)                                  in the case of any other Event of Default, the ratio of Consolidated
Net Debt to Consolidated Operating Cashflow set out in the Compliance
Certificate most recently delivered to the Facility Agent prior to the remedy
or waiver of such Event of Default.


 


14.                               INTEREST ON TERM
FACILITY ADVANCES


 


14.1                        Interest
Periods for Term Facility Advances


 


The
period for which a Term Facility Advance is outstanding shall be divided into
successive periods (each an “Interest Period”)
each of which (other than the first) shall start on the last day of the
preceding such period.


 


14.2                        Duration


 


The
duration of each Interest Period shall, save as otherwise provided in this
Agreement, be 1, 2, 3 or 6 months, or such other period of up to 12 months as
all the Lenders holding Commitments (in the case of the first Interest Period
for a Term Facility Advance, and thereafter, Outstandings under the relevant
Facility may agree) in each case, as the relevant Borrower may select by no
later than 2:00 p.m. on the date falling 3 Business Days before the first day of the relevant Interest
Period, provided that:


 


(a)                                  if
such Borrower fails to give such notice of selection in relation to an Interest
Period, the duration of that Interest Period shall, subject to the other
provisions of this Clause 14, be 3 months;


 


(b)                                  prior
to the Syndication Date, unless the Facility Agent otherwise agrees, the
duration of each Interest Period shall be 1 month (or, if less, such duration
as may be necessary to ensure that such Interest Period ends on the Syndication
Date); and


 


(c)                                  any
Interest Period that would otherwise end during the month preceding or extend
beyond a Repayment Date relating to the Term Facility Outstandings shall be of
such duration that it shall end on that Repayment Date if necessary to ensure
that there are Advances under the relevant Term Facility with Interest Periods
ending on the relevant Repayment Date in a sufficient aggregate amount to make
the repayment due on that Repayment Date.


 


14.3                        Consolidation
of Term Facility Advances


 


If
2 or more Interest Periods in respect of Term Facility Advances denominated in
the same currency under the same Term Facility end at the same time, then on
the last day of those Interest Periods, the Term Facility Advances to which
those Interest Periods relate shall be consolidated into and treated as a
single Term Facility Advance.


 


14.4                        Division
of Term Facility Advances


 


Subject to the requirements of
Clause 14.2 (Duration), the Company may, by no
later than 2:00 p.m. on the date falling 3 Business Days before the first day
of the relevant Interest Period, direct that any Term Facility Advance borrowed
by it shall, at the beginning of the next Interest Period relating to it, be
divided into (and thereafter, save as otherwise provided in this Agreement, be
treated in all respects


 


82

















 


as) 2 or more Advances in such
amounts (equal in aggregate to the Sterling Amount of the Term Facility Advance
being so divided) as shall be specified by the Company in such notice provided
that the Company shall not be entitled to make such a direction if:


 


(a)                                  as a
result of so doing, there would be more than 10 Advances outstanding under the relevant Term Facility; or


 


(b)                                  any
Term Facility Advance thereby coming into existence would have a Sterling
Amount of less than £25 million.


 


14.5                        Payment
of Interest for Term Facility Advances


 


On
(a) the last day of each Interest Period (or if such day is not a Business Day,
on the immediately succeeding Business Day in the then current month (if there
is one) or the preceding Business Day (if there is not)), and if the relevant
Interest Period exceeds 6 months, on the expiry of each 6 month period during
that Interest Period, or (b) if Clause 17.2(d) applies, the relevant
Confirmation Date, the relevant Borrower shall pay accrued interest on the Term
Facility Advance to which such Interest Period relates.


 


14.6                        Interest
Rate for Term Facility Advances


 


The
rate of interest applicable to a Term Facility Advance at any time during an
Interest Period relating to it shall be the rate per annum which is the sum of
the Applicable Margin, the Associated Costs Rate for such Advance at such time
(if applicable) and, LIBOR, for such Interest Period.


 


14.7                        Margin
Ratchet for A Facility Advances and A1 Facility Advances


 


(a)                                  Subject
to paragraph (c) of this Clause 14.7, if in respect of any Quarter Date falling
not less than 3 months after the Merger Closing Date the ratio of Consolidated
Net Debt to Consolidated Operating Cashflow computed on the same basis as the
ratio set out in paragraph (a) of Clause 23.2 (Ratios)
is within the range of ratios set out in column 1 of the table set out below,
then the A Facility Margin and the A1 Facility Margin shall be reduced or
increased to the percentage rate per annum set out opposite the relevant range
in column 2.


 


	
  Leverage Ratio

  	
   

  	
  Margin

  	
   

  
	
  Less than 3.00 : 1

  	
   

  	
  1.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.00 : 1 but less than 3.40 : 1

  	
   

  	
  1.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.40 : 1 but less than 3.80 : 1

  	
   

  	
  1.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 3.80 : 1 but less than 4.20 : 1

  	
   

  	
  1.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.20 : 1 but less than 4.50 : 1

  	
   

  	
  1.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.50 : 1 but less than 4.80 : 1

  	
   

  	
  1.875

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 4.80 : 1 but less than 5.00 : 1

  	
   

  	
  2.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to 5.00

  	
   

  	
  2.250

  	
  %

  



 


(b)                                  Any
reduction or increase to the A Facility Margin or A1 Facility Margin in
accordance with paragraph (a) above shall take effect in relation to A Facility
Advances or A1 Facility Advances with effect from the date of receipt by the
Facility Agent in respect of the relevant Quarter Date of:


 


83

















 


(i)                                    the
quarterly financial information required to be delivered in accordance with
Clause 22.1 (Financial Statements); and


 


(ii)                                a
Compliance Certificate required to be delivered in accordance with Clause 22.5
(Compliance Certificates)
evidencing the relevant ratio of Consolidated Net Debt to Consolidated
Operating Cashflow,


 


and shall apply until the date of receipt by
the Facility Agent of the quarterly financial information and Compliance
Certificate in respect of the next succeeding Quarter Date on which the
financial covenants are required to be tested pursuant to Clause 23.2 (Ratios) having regard to the provisions of
paragraph (e) thereof (or if such financial information and Compliance
Certificate are not so delivered, the last day upon which such financial
information and Compliance Certificate should have been so delivered in
accordance with Clause 22.1 (Financial Statements)
Clause 22.5 (Compliance Certificates)
in respect of such Quarter Date) whereupon the A Facility Margin or the A1
Facility Margin, as applicable shall be recalculated on the basis of such
financial information and Compliance Certificate.


 


(c)                                  Upon
the occurrence of any Event of Default, the A Facility Margin or the A1
Facility Margin shall revert to 2.25% and shall remain at such rate for so long
as the Event of Default is continuing and when such Event of Default ceases to be
continuing it shall revert:


 


(i)                                    in
the case of an Event of Default set out in paragraph (c) of Clause 27.2 (Covenants), upon the date on which the
Facility Agent has received a Compliance Certificate confirming compliance with
the financial covenants set out in Clause 23 (Financial
Condition); or


 


(ii)                                in
the case of any other Event of Default either (A) upon the date on which the
Facility Agent has received a certificate of a duly authorised officer of the
Company certifying that such Event of Default has been remedied, immediately
upon receipt of such certificate or (B) where the Lenders have waived such
Event of Default in accordance with the terms of this Agreement, immediately
upon the Facility Agent having confirmed to the Company that such Event of
Default has been waived,


 


in each case, to the applicable rate provided
in paragraph (a) above by reference to:


 


(x)                                  in the case of an Event of Default of the type referred to in
paragraph (c)(i) above, the ratio of Consolidated Net Debt to Consolidated Operating
Cashflow set out in the Compliance Certificate referred to therein; or


 


(y)                                  in the case of any other Event of Default, the ratio of Consolidated
Net Debt to Consolidated Operating Cashflow set out in the Compliance
Certificate most recently delivered to the Facility Agent prior to the remedy
or waiver of such Event of Default.


 


14.8                        Notification


 


The
Facility Agent shall promptly notify the relevant Borrowers and the Lenders of
each determination of LIBOR, EURIBOR, the Associated Costs Rate, and any change
to the proposed length of a Term or Interest Period or any interest rate
occasioned by the operation of Clause 15 (Market
Disruptions and Alternative Interest Rates).


 


84

















 


15.                               MARKET DISRUPTION
AND ALTERNATIVE INTEREST RATES


 


15.1                        Market
Disruption


 


If,
in relation to any Interest Period or Term:


 


(a)                                  EURIBOR
or LIBOR, as the case may be, is to be determined by reference to the Reference
Banks and, at or about 11.00 a.m. (Brussels time in the case of EURIBOR or
London time in the case of LIBOR) on the Quotation Date for such Interest
Period or Term, none or only one of the Reference Banks supplies a rate for the
purpose of determining EURIBOR or LIBOR, as the case may be, for the relevant
period; or


 


(b)                                  before
the close of business in London on the Quotation Date for such Interest Period
or Term, the Facility Agent has been notified by a Lender or each of a group of
Lenders to whom in aggregate 40% or more of the relevant Advance is owed (or,
in the case of an undrawn Advance, if made, would be owed) that the cost to it
of obtaining matching deposits for the relevant Advance in the Relevant
Interbank Market would be in excess of EURIBOR or LIBOR, as the case may be,


 


then
the Facility Agent shall notify the Company and the Lenders of such event and,
notwithstanding anything to the contrary in this Agreement, Clause 15.2 (Substitute Interest Period or Term and Interest Rate) shall
apply (if the relevant Advance is a Term Facility Advance which is already
outstanding or a Rollover Advance).  If
either paragraph (a) or (b) applies to a proposed Advance other than a Rollover
Advance, such Advance shall not be made.


 


15.2                        Substitute
Interest Period or Term and Interest Rate


 


(a)                                  If
paragraph (a) of Clause 15.1 (Market Disruption)
applies, the duration of the relevant Interest Period or Term shall be 1 month
or, if less, such that it shall end on the Termination Date in respect of the
Revolving Facility (in the case of a Rollover Advance) or the next succeeding
Repayment Date (in the case of a Term Facility Advance).


 


(b)                                  If
either paragraph of Clause 15.1 (Market Disruption)
applies to an Advance, the rate of interest applicable to each Lender’s portion
of such Advance during the relevant Interest Period or Term shall (subject to
any agreement reached pursuant to Clause 15.3 (Alternative
Rate)) be the rate per annum which is the sum of:


 


(i)                                    the
Applicable Margin;


 


(ii)                                the
rate per annum notified to the Facility Agent by such Lender before the last
day of such Interest Period or Term to be that which expresses as a percentage
rate per annum the cost to such Lender of funding from whatever sources it may
reasonably select its portion of such Advance during such Interest Period or
Term; and


 


(iii)                            the
Associated Costs Rate, if any, applicable to such Lender’s participation in the
relevant Advance.


 


15.3                        Alternative
Rate


 


If
Clause 15.1 (Market Disruption)
applies and the Facility Agent or the Company so requires, the Facility Agent
and the Company shall enter into negotiations with a view to agreeing an
alternative basis:


 


(a)                                  for
determining the rate of interest from time to time applicable to such Advances;
and/or


 


85

















 


(b)                                  upon
which such Advances may be maintained (whether in Sterling or some other
currency) thereafter,


 


and
any such alternative basis that is agreed shall take effect in accordance with
its terms and be binding on each party to this Agreement, provided that the
Facility Agent may not agree any such alternative basis without the prior
consent of each Lender holding Outstandings under each applicable Facility,
acting reasonably.


 


16.                               COMMISSIONS AND
FEES


 


16.1                        Commitment
Fees


 


The
Borrowers shall pay to the Facility Agent for the account of each relevant
Lender (other than an Ancillary Facility Lender) a commitment commission on the
aggregate amount of such Lender’s Available Revolving Facility Commitment made
available by it (other than any Ancillary Facility) from day to day during the
period beginning on the Merger Closing Date and ending on the Termination Date
for the Revolving Facility, such commitment commission to be calculated at the
lower of (a) a rate of 0.75% per annum of the aggregate undrawn portion of the
Revolving Facility and (b) 50% of the Revolving Facility Margin from the Merger
Closing Date, payable in arrears on the last day of each successive period of 3
months which ends during such period and on the Termination Date for the
Revolving Facility.


 


16.2                        Arrangement
and Underwriting Fee


 


The
Company shall pay to the Bookrunners the fees specified in the Senior Fees
Letter at the times and in the amounts specified in such letter.


 


16.3                        Agency
Fee


 


The
Company shall pay to the Facility Agent and the Security Trustee for their own
account the fees specified in the letter dated on or about
the Original Execution Date from the Facility Agent to the Company at the times
and in the amounts specified in such letter.


 


16.4                        Documentary
Credit Fee


 


Each
Borrower shall, in respect of each Documentary Credit issued on its behalf pay
to the Facility Agent for the account of each Indemnifying Lender (for
distribution in proportion to each Indemnifying Lender’s L/C Proportion of such
Documentary Credit) a documentary credit fee in the currency in which the
relevant Documentary Credit is denominated at a rate equal to the applicable
Revolving Facility Margin applied on the Outstanding L/C Amount in relation to
such Documentary Credit.  Such
documentary credit fee shall be paid in arrears on each Quarter Date during the
Term of the relevant Documentary Credit and on the relevant Expiry Date.  Accrued Documentary Credit fees shall also be
payable on the cancelled amount of any Revolving Facility Commitment
attributable to a Documentary Credit which is repaid in full at the time such
cancellation is effective, if the Revolving Facility Commitment is cancelled in
full and a Documentary Credit is repaid in full.


 


16.5                        L/C
Bank Fee


 


Each
relevant Borrower shall pay:


 


(a)                                  to
the Original L/C Bank a fronting fee in respect of each Documentary Credit
requested by it and issued by the Original L/C Bank in the amount and at the
times agreed in the letter dated on or about the Original Execution Date
between the Original L/C Bank and the Company; and


 


86

















 


(b)                                  to
any other L/C Bank a fronting fee in respect of each Documentary Credit
requested by it and issued by that L/C Bank, in the amount and at the times
agreed in any letter entered into between such L/C Bank and such Borrower.


 


17.                               TAXES


 


17.1                        Tax
Gross-up


 


(a)                                  Each
payment made by the Parent or an Obligor under a Finance Document shall be made
by it without any Tax Deduction, unless a Tax Deduction is required by
Law.  Any Tax Deduction in relation to
any payment due in any currency other than Sterling shall be calculated using
the Facility Agent’s Spot Rate of Exchange on the date such payment is made and
the Parent and the Obligors shall have no liability if any subsequent credit or
refund received by any Lender from any Tax Authority in relation thereto is in
a different amount (when converted to the non-Sterling currency on any date).


 


(b)                                  As
soon as it becomes aware that the Parent or an Obligor is or will be required
by Law to make a Tax Deduction (or that there is any change in the rate at
which or the basis on which such Tax Deduction is to be made) the Parent or the
relevant Obligor shall notify the Facility Agent accordingly.  Similarly, a Lender shall notify the Facility
Agent and the Parent upon becoming so aware in respect of a payment payable to
that Lender.


 


(c)                                  If a
Tax Deduction is required by Law to be made by the Parent or an Obligor, the
amount of the payment due shall, unless paragraph (f) below applies, be
increased to an amount so that, after the required Tax Deduction is made, the
payee receives an amount equal to the amount it would have received had no Tax
Deduction been required.


 


(d)                                  If a
Tax Deduction is required by Law to be made by the Facility Agent, the US
Paying Agent or the Security Trustee (other than by reason of the Facility
Agent or the Security Trustee performing its obligations as such under this
Agreement through an office located outside the United Kingdom or the US Paying
Agent performing its obligations as such through an office located outside the
United States) from any payment to any Finance Party which represents an amount
or amounts received from the Parent or an Obligor, either the Parent or that
Obligor, as the case may be, shall, unless paragraph (f) below applies, pay
directly to that Finance Party an amount which, after making the required Tax
Deduction enables the payee of that amount to receive an amount equal to the
payment which it would have received if no Tax Deduction had been required.


 


(e)                                  If a
Tax Deduction is required by Law to be made by the Facility Agent, the US
Paying Agent or the Security Trustee from any payment to any Finance Party
under paragraph (d) above, the Facility Agent, the US Paying Agent or the
Security Trustee as appropriate shall unless paragraph (g) below applies,
make that Tax Deduction and any payment required in connection with that Tax
Deduction to the relevant taxing authority within the time allowed and in the
minimum amount required by Law and within 30 days of making either a Tax
Deduction or any payment in connection with that Tax Deduction, the Facility
Agent, the US Paying Agent or the Security Trustee as appropriate making that
Tax Deduction or other payment shall deliver to the relevant Borrower evidence
that the Tax Deduction or other payment has been made or accounted for to the
relevant tax authority.


 


(f)                                    Neither
the Parent nor any Obligor is required to make a Tax Payment to a Lender under
paragraphs (c) or (d) above for a Tax Deduction in respect of tax imposed by
the United Kingdom on a payment of interest in respect of a participation in an
Advance by that Lender to any Borrower (other than the US Borrower) where that
Lender is not a Qualifying UK Lender on the date on which the relevant payment
of interest is due (otherwise than as a consequence of a Change in Tax Law) to
the extent that payment could have been made


 


87

















 


without a Tax Deduction if that Lender had been a
Qualifying UK Lender on that date.


 


(g)                                 Either
the Parent or the relevant Obligor which is required to make a Tax Deduction
shall make that Tax Deduction and any payment required in connection with that
Tax Deduction to the relevant taxing authority within the time allowed and in
the minimum amount required by Law.


 


(h)                                 Within
30 days of making either a Tax Deduction or any payment required in connection
with that Tax Deduction, either the Parent or the relevant Obligor making that
Tax Deduction or other payment shall deliver to the Facility Agent or the US
Paying Agent, as appropriate, for the Finance Party entitled to the interest to
which such Tax Deduction or payment relates, evidence that the Tax Deduction or
other payment has been made or accounted for to the relevant tax authority.


 


17.2                        Lender
Tax Status


 


(a)                                  Each
Lender represents and warrants to the Facility Agent and to each Borrower:


 


(i)                                    in
the case of an Original Lender, that as at the Original Execution Date, it has
the tax status set out opposite its name in Part 2 of Schedule 1 (Lender Tax Status); or


 


(ii)                                in
the case of any other Lender, that as at the relevant Transfer Date, it is:


 


(A)                               a UK Bank Lender;


 


(B)                               a UK Non-Bank Lender and falls within paragraph (a) or (b) of the
definition thereof;


 


(C)                               a UK Treaty Lender; or


 


(D)                               a US Accession Lender,


 


as the same shall be expressly indicated in
the relevant Transfer Deed.


 


(b)                                  Each
Lender expressed to be a “UK Non-Bank Lender” in Part 2 of Schedule 1 (Lender Tax Status) or in the Transfer Deed
pursuant to which it becomes a Lender represents and warrants to:


 


(i)                                    the
Facility Agent and to each UK Borrower, on the Original Execution Date, or on
the relevant Transfer Date (as the case may be) that it is within paragraph (a)
of the definition of UK Non-Bank Lender on that date (unless, if it is not
within paragraph (a), it is within paragraph (b) of the definition of UK
Non-Bank Lender on that date, and has notified the Facility Agent of the
circumstances by virtue of which it falls within such paragraph (b) and has
provided evidence of the same to the Company if and to the extent requested to
do so, by the Facility Agent; and


 


(ii)                                the
Facility Agent and to each UK Borrower, that unless it notifies the Facility
Agent and the Company to the contrary in writing prior to any such date, its
representation and warranty in paragraph (i) of this Clause 17.2(b) is true in
relation to that Lender’s participation in each Advance made to such Borrower,
on each date that such UK Borrower makes a payment of interest in relation to
such Advance.


 


(c)                                  (i)            A
Lender that intends to qualify as a UK Treaty Lender and either the Parent or
the relevant Obligor that makes a payment to which that Lender is entitled
shall cooperate in completing any procedural formalities as may be necessary
for either the


 


88

















 


Parent or the
relevant Obligor to obtain authorisation to make that payment without a Tax
Deduction; provided, however, that nothing in this Clause 17.2(c)(i) shall
require a Lender to disclose any confidential information or information
regarding its business, tax affairs or tax computations (including, without
limitation, its tax returns or its calculations).


 


(ii)                                Any Lender that is not a “United States person” (as such term is
defined in Section 7701(a)(30) of the Code) and that is entitled to payment
from the US Borrower without a Tax Deduction for United States federal
withholding taxes, shall as soon as reasonably practicable:


 


(1)                                 to the extent able to do so without breaching any legal or
regulatory restrictions or having to disclose any confidential information,
deliver to the US Borrower, with a copy to the Facility Agent, upon the
reasonable written request of the US Borrower, (i) two accurate and complete
originally executed US Internal Revenue Service Forms W-8BEN or W-8ECI (or any
successor), whichever is relevant, certifying such Lender’s legal entitlement
to an exemption or reduction from any Tax Deduction for US federal withholding
taxes with respect to all payments hereunder, or (ii) in the case of each such
Lender, if the Lender is not a “bank” within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either US Internal Revenue Service
Form W-8ECI or Form W-8BEN (certifying such Lender’s legal entitlement to an
exemption or reduction from any Tax Deduction for US federal withholding taxes)
pursuant to sub-paragraph (i) above, (x) a statement certifying that such
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code
and (y) two accurate and complete originally executed copies of US Internal
Revenue Service Form W-8BEN (with respect to the portfolio interest exemption)
(or successor form) certifying such Lender’s legal entitlement to an exemption
or reduction from any Tax Deduction for US federal withholding taxes with
respect to all payments hereunder; and


 


(2)                                 to the extent able do so without breaching any legal or regulatory
restrictions or having to disclose any confidential information at such times,
provide to the US Borrower, with a copy to the Facility Agent) new Forms W-8BEN
or W-8ECI (or any successor), whichever is relevant, upon the expiration or
obsolescence of any previously delivered form to reconfirm any complete
exemption from, or any entitlement to a reduction in, any Tax Deduction for US
federal withholding taxes with respect to any payment hereunder.


 


(iii)                            Any Lender that is a “United
States person” (as such term is defined in Section 7701(a)(30) of the Code) and
that is entitled to payment from the US Borrower, other than a Lender that has
a name that indicates that it is an “exempt recipient” (as such term is defined
in Section 1.6049-4(c)(1)(ii) of the United States Treasury Regulations), shall
as soon as reasonably practicable:


 


(1)                                 to the extent able to do so
without breaching any legal or regulatory restrictions or having to disclose
any confidential information, deliver to the US Borrower, with a copy to the
Facility Agent, upon the reasonable written request of the US Borrower, (i) two
accurate and complete originally executed US Internal Revenue Service Forms W-9
(or any successor); and


 


(2)                                 to the extent able do so without
breaching any legal or regulatory restrictions or having to disclose any
confidential information at such times, provide to the US Borrower, with a copy
to the Facility Agent, new Forms W-9 (or any


 


89

















 


successor),
whichever is relevant, upon the expiration or obsolescence of any previously
delivered form.


 


(d)                                  (i)            If, in relation to any interest payment to a Lender on an
Advance made to a UK Borrower:


 


(A)                               that Lender has confirmed to the relevant UK Borrower and to the
Facility Agent before that interest payment would otherwise fall due that:


 


(1)                                 it has completed the necessary procedural formalities referred to in
paragraph (c)(i) of this Clause 17.2; and


 


(2)                                 H.M. Revenue and Customs has not declined to issue the authorisation
referred to in the definition of “UK Treaty Lender” (the “Authorisation”) to that Lender in relation
to that Advance, or if the Inland Revenue has declined, the Lender is disputing
that decision in good faith; and


 


(B)          the relevant UK Borrower has not
received the Authorisation,


 


then, such Lender may elect, by not less than
5 Business Days’ prior confirmation in writing to the Facility Agent, that such
interest payment (the “relevant Interest
Payment”) shall not be due and payable under Clause 13.1 (Interest Payment Date for Revolving Facility Advances)
or Clause 14.5 (Payment of Interest for Term
Facility Advances) (as applicable) until the date (the “Confirmation Date”) which is 5 Business
Days after the earlier of:


 


(x)           the date on which the Authorisation
is received by the relevant UK Borrower;


 


(y)                                  the date that Lender confirms to the relevant UK Borrower and the
Facility Agent that it is not entitled to claim full relief from liability to
taxation otherwise imposed by the United Kingdom (in relation to that Lender’s
participation in Advances made to that UK Borrower) on interest under a Double
Taxation Treaty in relation to the relevant Interest Payment; and


 


(z)                                  the earlier of (A) the date which is 6 months after the date on
which the relevant Interest Payment had otherwise been due and payable and (B)
the date of final repayment (whether scheduled, voluntary or mandatory) of
principal in respect of the relevant Interest Payment.


 


(ii)                                For the avoidance of doubt, in the event that sub-paragraph (i) of
this paragraph (d) applies the Interest Period or Term to which the relevant
Interest Payment relates shall not be extended and the start of the immediately
succeeding Interest Period or Term shall not be delayed.


 


(e)                                  Any
Lender which was a Qualifying UK Lender when it became party to this Agreement
but subsequently ceases to be a Qualifying UK Lender (other than by reason of a
Change in Tax Law in the United Kingdom) shall promptly notify the UK Borrowers
of that event, provided that if there is a Change in Tax Law in the United
Kingdom which in the reasonable opinion of such UK Borrowers may result in any
Lender which was a Qualifying UK Lender when it became a party to this
Agreement ceasing to be a Qualifying UK Lender, such Qualifying UK Lender shall
co-operate with such UK Borrowers and provide reasonable evidence requested by
such UK Borrowers in order for such UK Borrowers to determine whether such
Lender has ceased to be a Qualifying UK Lender provided, however, that nothing
in this Clause 17.2(e) shall require a Lender to disclose any confidential
information or information


 


90

















 


regarding its
business, tax affairs or tax computations (including without limitation, its
tax returns or its calculations).


 


(f)                                    For
the purposes of paragraphs (a) to (e) above, each Lender shall promptly deliver
such documents evidencing its corporate and tax status as the Facility Agent or
the Company may reasonably request, provided that in the event that any Lender
fails to comply with the foregoing requirement, any Borrower shall be
permitted:


 


(i)                                    in
respect of any Lender that has become a Lender prior to the achievement of
Successful Syndication, to withhold and retain an amount in respect of the
applicable withholding tax estimated in good faith by such Borrower to be
required to be withheld in respect of interest paid to such Lender; or


 


(ii)                                in
respect of any Lender that intends to become a Lender after the achievement of
Successful Syndication, subject to the provisions of paragraph (a) of Clause
37.3 (Assignments and Transfers), to refuse to
grant its consent to such transfer.


 


(g)                                 In
the event that either the Facility Agent or the Company has reason to believe
that any representation given by a Lender in accordance with Clause 17.2 (Lender Tax Status) is incorrect or inaccurate, the Facility
Agent or the Company (as the case may be) shall promptly inform the other party
and the relevant Lender, and may thereafter request such documents relating to
the corporate and tax status of such Lender as the Facility Agent or the
Company may reasonably require for the purposes of determining whether or not
such representation was indeed incorrect.


 


(h)                                 If,
following delivery of such documentation and following consultation between the
Facility Agent, the Company and the relevant Lender, the Company concludes
(acting reasonably and in good faith) that there is insufficient evidence to
determine the relevant tax status of such Lender, the Company may require the
relevant Borrower to whom such Lender has made Advances to novate its
obligations under such Advances in accordance with paragraph (d) of Clause 37.3
(Assignment or Transfers by Lender) to another
Borrower.


 


17.3                        Tax
Indemnity


 


(a)                                  Subject
to paragraph (b) of this Clause, the Company shall (within 5 Business Days of
demand by the Facility Agent) pay (or procure that either the Parent or the
relevant Obligor pays) for the account of a Protected Party an amount equal to
any Tax Liability which that Protected Party reasonably determines has been or
will be suffered by that Protected Party (directly or indirectly) in connection
with any Finance Document.


 


(b)                                  Paragraph
(a) of this Clause shall not apply:


 


(i)                                    with
respect to any Tax Liability of a Protected Party in respect of Tax on Overall
Net Income of that Protected Party;


 


(ii)                                to
the extent that any Tax Liability has been compensated for by an increased
payment or other payment under paragraphs (c) or (d) of Clause 17.1 (Tax Gross-up) or would have been compensated for by such an
increased payment or other payment, but for the application of paragraph (f) of
Clause 17.1 (Tax Gross-up); or


 


(iii)                            until
the Merger Closing Date has occurred.


 


91

















 


(c)                                  A
Protected Party making, or intending to make, a claim pursuant to paragraph (a)
of this Clause 17.3 shall promptly notify the Facility Agent of the event which
will give, or has given, rise to the claim together with supporting evidence,
following which the Facility Agent shall notify the Company and provide such
evidence to it.


 


(d)                                  A
Protected Party shall, on receiving a payment from either the Parent or an
Obligor under this Clause 17.3, notify the Facility Agent.


 


(e)                                  In
this Clause 17.3:


 


“Tax
Liability” means, in respect of any Protected Party:


 


(i)                                    any
liability or any increase in the liability of that person to make any payment
of or in respect of tax;


 


(ii)                                any
loss of any relief, allowance, deduction or credit in respect of tax which
would otherwise have been available to that person;


 


(iii)                            any
setting off against income, profits or gains or against any tax liability of
any relief, allowance, deduction or credit in respect of tax which would otherwise
have been available to that person; and


 


(iv)                               any
loss or setting off against any tax liability of a right to repayment of tax
which would otherwise have been available to that person.


 


For this purpose, any question of whether or
not any relief, allowance, deduction, credit or right to repayment of tax has
been lost or set off in relation to any person, and if so, the date on which
that loss or set-off took place, shall be conclusively determined by that
person, acting reasonably and in good faith and such determination shall be
binding on the relevant parties to this Agreement.


 


“Tax on
Overall Net Income” means, in relation to a Protected Party, tax
(other than tax deducted or withheld from any payment) imposed on the net
income received or receivable (but not any sum deemed to be received or
receivable) by that Protected Party by the jurisdiction in which the relevant
Finance Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which the Finance Party is treated as residing for tax
purposes or in which the relevant Finance Party’s Facility Office or head
office is situated.


 


(f)                                    A
Protected Party making or intending to make a claim under paragraph (a) above
shall promptly notify the Facility Agent of the event which will give, or has
given, rise to the claim together with supporting evidence, following which the
Facility Agent shall notify the Company and provide such evidence to it.


 


(g)                                 A
Protected Party shall, on receiving a payment from an Obligor under this Clause
17.3, notify the Facility Agent.


 


17.4                        Tax
Credit


 


(a)                                  If
either the Parent or an Obligor makes a Tax Payment and the relevant Finance
Party determines, in its sole opinion, that:


 


(i)                                    a
Tax Credit is attributable to that Tax Payment; and


 


(ii)                                that
Finance Party has obtained, utilised and retained that Tax Credit,


 


92

















 


the Finance Party shall (subject to paragraph
(b) below and to the extent that such Finance Party can do so without
prejudicing the availability and/or the amount of the Tax Credit and the right
of that Finance Party to obtain any other benefit, relief or allowance which
may be available to it) pay to either the Parent or the relevant Obligor such
amount which that Finance Party determines, in its sole opinion, will leave it
(after that payment) in the same after-tax position as it would have been in
had the Tax Payment not been required to be made by the Parent or the relevant
Obligor.


 


(b)                                  (i)            Each Finance Party shall have an absolute discretion as to
the time at which and the order and manner in which it realises or utilises any
Tax Credits and shall not be obliged to arrange its business or its tax affairs
in any particular way in order to be eligible for any credit or refund or
similar benefit.


 


(ii)                                No Finance Party shall be obliged to disclose to any other person
any information regarding its business, tax affairs or tax computations
(including, without limitation, its tax returns or its calculations).


 


(iii)                            If a Finance Party has made a payment to the Parent or an Obligor
pursuant to this Clause 17.4 on account of a Tax Credit and it subsequently
transpires that that Finance Party did not receive that Tax Credit, or received
a reduced Tax Credit, either the Parent or such Obligor, as the case may be,
shall, on demand, pay to that Finance Party the amount which that Finance Party
determines, acting reasonably and in good faith, will put it (after that
payment is received) in the same after-tax position as it would have been in
had no such payment or a reduced payment been made to the Parent or such
Obligor.


 


(c)                                  No
Finance Party shall be obliged to make any payment under this Clause 17.4 if,
by doing so, it would contravene the terms of any applicable Law or any notice,
direction or requirement of any governmental or regulatory authority (whether
or not having the force of law).


 


18.                               INCREASED COSTS


 


18.1                        Increased
Costs


 


Subject
to Clause 18.3 (Exceptions), each Borrower shall,
within 3 Business Days of a demand by the Facility Agent, pay for the account
of a Finance Party the amount of any Increased Cost incurred by that Finance
Party or any of its Affiliates as a result (direct or indirect) of:


 


(a)                                  the
introduction or implementation of or any change in (or any change in the
interpretation, administration or application of) any Law, regulation, practice
or concession or any directive, requirement, request or guideline (whether or
not having the force of law but where such law, regulation, practice,
concession, directive, requirement, request or guideline does not have the
force of law, it is one with which banks or financial institutions subject to
the same are generally accustomed to comply) of any central bank, including the
European Central Bank, the Financial Services Authority or any other fiscal,
monetary, regulatory or other authority after the Original Execution Date;


 


(b)                                  compliance
with any Law, regulation, practice, concession or any such directive,
requirement, request or guideline made after the Original Execution Date; or


 


(c)                                  the
implementation of economic or monetary union by any Member State which is not
already a Participating Member State.


 


93

















 


18.2                        Increased
Costs Claims


 


(a)                                  A
Finance Party intending to make a claim pursuant to Clause 18.1 (Increased Costs) shall notify the Facility Agent of the
event giving rise to the claim, following which the Facility Agent shall
promptly notify the relevant Borrower.


 


(b)                                  Each
Finance Party shall, as soon as practicable after a demand by the Facility
Agent, provide a certificate confirming the amount of its or if applicable, its
Affiliate’s Increased Costs setting out in reasonable detail its calculations
in relation to such Increased Costs.


 


18.3                        Exceptions


 


Clause
18.1 (Increased Costs) does not apply to the
extent any Increased Cost which is:


 


(a)                                  attributable
to a Tax Deduction required by Law to be made by the Parent or an Obligor, as
the case may be;


 


(b)                                  compensated
for by Clause 17.3 (Tax Indemnity)
(or would have been compensated for by Clause 17.3 but was not so compensated
solely because paragraph (b) of Clause 17.3 applied);


 


(c)                                  compensated
for by the payment of the Associated Costs Rate;


 


(d)                                  attributable
to the gross negligence of, or wilful breach by, the relevant Finance Party or
if applicable, any of its Affiliates of any law, regulation, practice,
concession, directive, requirement, request or guideline, to which the
imposition of such Increased Cost relates;


 


(e)                                  attributable
to a delay of more than 30 days in the relevant Finance Party notifying the
Facility Agent of any claim pursuant to paragraph (a) of Clause 18.2 (Increased Costs Claims) after such Finance
Party has become aware that it had suffered the relevant Increased Cost; or


 


(f)                                    attributable
to the implementation of or compliance with the “International Convergence of
Capital Measurement and Capital Standards, a Revised Framework” published by
the Basel Committee on Banking Supervision in June 2004 in the form existing on
the Original Execution Date (“Basel II”)
or any other law or regulation which implements Basel II (whether such
implementation, application or compliance is by a government, regulator,
Finance Party or any of its Affiliates).


 


19.                               ILLEGALITY


 


If
it becomes unlawful in any relevant jurisdiction for a Lender to perform any of
its obligations as contemplated by this Agreement or to fund or maintain its
participation in any Advance or to issue a Documentary Credit or provide a
guarantee in relation to it as envisaged hereby/or in any Ancillary Facility:


 


(a)                                  that
Lender shall promptly notify the Facility Agent upon becoming aware of that
event;


 


(b)                                  upon
the Facility Agent notifying the relevant Borrower, the Available Commitments
of that Lender will immediately be cancelled and its Commitments reduced to
zero and such Lender shall not thereafter be obliged to participate in any
Advance or issue or guarantee any Documentary Credit/or make available any
Ancillary Facility; and


 


(c)                                  if
so required by the Facility Agent on behalf of the relevant Lender, the relevant
Borrower shall repay or procure the repayment of that Lender’s participation in
the Advances made to it on the last day of the current Interest Period or Term
for each Advance occurring after the


 


94

















 


Facility Agent
has notified such Borrower or, if earlier, the date specified by the Lender in
the notice delivered to the Facility Agent (being no earlier than the last day
of any applicable grace period permitted by Law) and, if applicable, shall
promptly reduce that Lender’s L/C Proportion of the Outstanding L/C Amount in
respect of any outstanding Documentary Credit issued by it to zero and, if
applicable, shall promptly reduce the Ancillary Facility Outstandings in
respect of that Lender to zero, together with accrued interest and all other
amounts owing to that Lender under the Finance Documents.


 


20.                               MITIGATION


 


20.1                        Mitigation


 


(a)                                  Each
Finance Party shall in consultation with the relevant Borrower, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under, or pursuant to, or cancelled
pursuant to, any of Clause 17 (Taxes), Clause
18 (Increased Costs) or Clause 19 (Illegality) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another Affiliate or
Facility Office or financial institution acceptable to such Borrower which is
willing to participate in any Facility in which such Lender has participated.


 


(b)                                  Paragraph
(a) of this Clause does not in any way limit the obligations of the Parent or
any Obligor under the Finance Documents.


 


20.2                        Limitation
of Liability


 


(a)                                  With
effect from the Merger Closing Date, each of the Borrowers agrees to indemnify
each Finance Party for all costs and expenses reasonably incurred by that
Finance Party as a result of steps taken by it under Clause 20.1 (Mitigation).


 


(b)                                  A
Finance Party is not obliged to take any steps under Clause 20.1 if, in the
opinion of that Finance Party (acting reasonably), to do so might in any way be
prejudicial to it.


 


21.                               REPRESENTATIONS
AND WARRANTIES


 


21.1                        Time
for making Representations and Warranties


 


(a)                                  Each
Obligor in relation to itself and, to the extent expressed to be applicable to
them, its Subsidiaries, makes each of the following representations and
warranties to each Finance Party on the Original Execution Date other than in
the case of the representations given under Clause 21.16 (Accuracy of
Information) which shall be given as of the applicable dates
specified in that Clause.


 


(b)                                  The
Ultimate Parent in relation to itself makes each of the representations and
warranties set out in Clauses 21.2 (Due Organisation),
21.5 (No Immunity), 21.6 (Governing
Law and Judgments), 21.7 (All Actions Taken),
21.8 (No Filing or Stamp Taxes), 21.9 (Binding Obligations), 21.10 (No Winding-
up), 21.13 (Original Financial
Statements) (as to the Original Financial Statements provided by
it), 21.14 (No Material Adverse Change), 21.15 (No Undisclosed Liabilities), 21.18 (Execution of
Finance Documents), paragraph (d) of Clause 21.19 (Structure), 21.21 (Necessary Authorisations),
21.27 (Investment Company Act),
21.28 (Margin Stock), 21.31 (Merger Documents), 21.34 (US Patriot Act) and 21.36 (Compliance with ERISA) to each Finance Party on the Original
Execution Date.  Any Holding Company of
the Ultimate Parent who accedes to this Agreement pursuant to Clause 26.3 (Acceding Holding Company) makes each of
the Repeating Representations, to the extent they are listed in the foregoing
sentence, with respect to itself on the date on which it accedes to this
Agreement.


 


95

















 


(c)                                  The
Parent in relation to itself makes each of the representations and warranties
set out in Clauses 21.2 (Due Organisation),
21.3 (No Deduction), 21.4 (Claims Pari Passu), 21.5 (No Immunity), 21.6 (Governing Law and
Judgments), 21.7 (All Actions Taken),
21.8 (No Filing or Stamp Taxes), 21.9 (Binding Obligations), 21.10 (No Winding-
up), paragraph (c) of Clause 21.17 (Indebtedness
and Encumbrances), 21.18 (Execution of Finance
Documents), paragraphs (c) of Clause 21.19 (Structure),
21.21 (Necessary Authorisations), 21.26 (Security) and 21.30 (Centre of Main Interests), to each Finance
Party on the Original Execution Date.


 


21.2                        Due Organisation


 


It
is a company duly organised or a partnership duly formed, in either case,
validly existing under the laws of its jurisdiction of incorporation or
establishment with power to enter into those of the Finance Documents to which
it is party and to exercise its rights and perform its obligations thereunder
and all corporate and (subject to paragraphs (d) and (e) of the definition of
Reservations) other action required to authorise its execution of those of the
Finance Documents to which it is party and its performance of its obligations
have been duly taken.


 


21.3                        No
Deduction


 


Under
the laws of its Relevant Tax Jurisdiction in force as at the Original Execution
Date, it will not be required to make any deduction for or withholding on
account of tax from any payment it may make under any of the Finance Documents
to any Lender which is (a) a Qualifying UK Lender (in the case of the UK
Borrowers) or (b) a US Accession Lender (in the case of the US Borrower).


 


21.4                        Claims
Pari Passu


 


Subject
to the Reservations, under the laws of its jurisdiction of incorporation or
establishment, and, if different, England, in force at the Original Execution
Date, the claims of the Finance Parties against it under the Finance Documents
to which it is party rank and will rank at least pari passu
with the claims of all its unsecured and unsubordinated creditors save those
whose claims are preferred by any bankruptcy, insolvency, liquidation or
similar laws of general application.


 


21.5                        No
Immunity


 


In
any legal proceedings taken in its jurisdiction of incorporation or
establishment and, if different, England in relation to any of the Finance
Documents to which it is party it will not be entitled to claim for itself or
any of its assets immunity from suit, execution, attachment or other legal
process.


 


21.6                        Governing
Law and Judgments


 


Subject
to the Reservations, in any legal proceedings taken in its jurisdiction of
incorporation or establishment in relation to any of the Finance Documents to
which it is party, the choice of law expressed in such documents to be the
governing law of it and any judgment obtained in such jurisdiction will be
recognised and enforced.


 


21.7                        All
Actions Taken


 


All
acts, conditions and things required to be done, fulfilled and performed in
order:


 


(a)                                  to
enable it lawfully to enter into, exercise its rights under and perform and
comply with all material obligations expressed to be assumed by it in the
Finance Documents to which it is party;


 


(b)                                  subject
to the Reservations, to ensure that all material obligations expressed to be
assumed by


 


96

















 


it in the
Finance Documents to which it is party are legal, valid and binding; and


 


(c)                                  subject
to the Reservations, to make the Finance Documents to which it is party
admissible in evidence in its jurisdiction of incorporation or establishment
and, if different, the United Kingdom,


 


have
been done, fulfilled and performed.


 


21.8                        No
Filing or Stamp Taxes


 


Under
the laws of its Relevant Tax Jurisdiction and, if different, the United
Kingdom, in force as at the Original Execution Date, it is not necessary that
any of the Finance Documents to which it is party be filed, recorded or
enrolled with any court or other authority in such jurisdiction or that any
stamp, registration or similar tax be paid on or in relation to any of them
other than those filings which are necessary to perfect the Security and save
as stated in the Reservations.


 


21.9                        Binding
Obligations


 


Subject
to the Reservations, the obligations expressed to be assumed by it in the
Finance Documents to which it is party, are legal, valid and binding and
enforceable against it in accordance with the terms thereof and no limit on its
powers will be exceeded as a result of the borrowings, grant of security or
giving of guarantees contemplated by such Finance Documents or the performance
by it of any of its obligations thereunder.


 


21.10                 No Winding-up


 


(a)                                  None
of the Ultimate Parent, the Parent, the Company or any other Obligor that is a
Material Subsidiary is taking any corporate action nor are any other steps
being taken (including the commencement of any legal proceedings) against the
Ultimate Parent, the Parent, the Company or any other Obligor that is a
Material Subsidiary, for its winding-up, dissolution or administration or for
the appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or all of
its assets or revenues save as permitted under paragraphs (c), (d) or (e) of Clause 25.8
(Mergers), Clause 25.20 (Solvent Liquidation) or as otherwise disclosed to the
Facility Agent prior to the Original Execution Date.


 


(b)                                  Each
US Obligor is Solvent.


 


21.11                 No Event of
Default


 


No
Event of Default is continuing or might reasonably be expected to result from
the making of any Advance.


 


21.12                 No Material
Proceedings


 


No
litigation, arbitration or administrative proceeding of or before any court,
arbitral body, or agency in which there is a reasonable possibility of an
adverse decision which could reasonably be expected to have a Material Adverse
Effect has been started or, to the best of its knowledge, is threatened in
writing or, is pending against it or any member of the Bank Group other than
litigation, arbitration or administrative proceedings commenced prior to the
Original Execution Date, details of which have been disclosed to the Lenders
prior to the Original Execution Date.


 


97

















 


21.13                 Original
Financial Statements


 


Its
Original Financial Statements were prepared in accordance with GAAP which has
been consistently applied (unless and to the extent expressly disclosed to the
Facility Agent in writing to the contrary before the Original Execution Date)
and fairly present in all material respects the consolidated financial position
of the group of companies to which they relate at the date as of which they
were prepared and/or (as appropriate) the results of operations and changes in
financial position during the period for which they were prepared.


 


21.14                 No Material
Adverse Change


 


Since
publication of its Original Financial Statements, no event or series of events
has occurred, in each case which has had or could reasonably be expected to
have a Material Adverse Effect.


 


21.15                 No Undisclosed
Liabilities


 


As
at 31 December 2005, neither the Ultimate Parent nor any of its Subsidiaries
had any material liabilities (contingent or otherwise) which were not disclosed
in the Original Financial Statements (or by the notes thereto) or reserved against
therein and the Group had no material unrealised or anticipated losses arising
from commitments entered into by it which were not so disclosed or reserved
against, in each case, to the extent required to be disclosed by GAAP.


 


21.16                 Accuracy of Information


 


In
the case of the Company only:


 


(a)                                  to
the best of its knowledge and belief having made all reasonable and proper
enquiries, all statements of fact relating to the business, assets, financial
condition and operations of the Group contained in:


 


(i)                                    the
Initial Information Memorandum are true, complete and accurate in all material
respects as at the Original Execution Date; and


 


(ii)                                the
Subsequent Information Memorandum are true, complete and accurate in all
material respects as at the date it is issued.


 


(b)                                  the
opinions and views expressed in the Information Memoranda and the Agreed
Business Plan represent the honestly held opinions and views of the Company and
were arrived at after careful consideration and were based on reasonable
grounds as at the dates on which they were prepared;


 


(c)                                  all
financial projections and forecasts made by any member of the Bank Group in the
Information Memoranda and the Agreed Business Plan have been prepared in good
faith and are based upon reasonable assumptions (it being understood that such
financial projections are subject to significant uncertainties, many of which
are beyond the control of the Company and/or TCN and that no assurance can be
given that such projections will be realised); and


 


(d)                                  (other
than in respect of the financial projections and forecasts referred to in
paragraph (c) above), the Information Memoranda did not omit to disclose or
take into account any matter known to the Company after due and careful enquiry
where failure to disclose or take into account such matter would result in:


 


(i)                                    the
Initial Information Memorandum being misleading in any material respect as at
the Original Execution Date; and


 


98

















 


(ii)                                the
Subsequent Information Memorandum being misleading in any material respect as
at the date it is issued.


 


21.17                 Indebtedness and
Encumbrances


 


(a)                                  Save
as permitted under this Agreement, neither it nor any member of the Bank Group
has incurred any Financial Indebtedness which is outstanding.


 


(b)                                  Save
as permitted under this Agreement, no Encumbrance exists over all or any of the
present or future revenues or assets of any member of the Bank Group.


 


(c)                                  In
relation to the Parent only, save as provided in the Security Documents no
Encumbrance exists over any of its rights, title or interest in the shares of
the Company or the Parent Intercompany Debt owed to it by the Company.


 


21.18                 Execution of
Finance Documents


 


Its
execution of the Finance Documents to which it is party and the exercise of its
rights and performance of its obligations thereunder do not and will not:


 


(a)                                  conflict
with any agreement, mortgage, bond or other instrument or treaty to which it is
a party or which is binding upon it or any of its assets (save as contemplated by
paragraphs (d) and (e) of the definition of Reservations) in a manner that
could reasonably be expected to have a Material Adverse Effect;


 


(b)                                  conflict
with any matter contained in its constitutional documents; or


 


(c)                                  conflict
with any applicable law.


 


21.19                 Structure


 


(a)                                  The
Group Structure Chart is a complete and accurate representation of the
structure of the NTL Group and the Telewest Group, in each case, in all
material respects prior to the Merger Closing Date.


 


(b)                                  The
Company is a wholly owned Subsidiary of the Parent.


 


(c)                                  In
the case of the Parent, it does not carry on any business or conduct any
activities (other than in respect of the Existing High Yield Offering, and any
on lending of the proceeds thereof).


 


(d)                                  Upon
consummation of the Merger, NTL shall be a direct wholly-owned subsidiary of
the Ultimate Parent.


 


21.20                 Environmental
Matters


 


(a)                                  It
has to the best of its knowledge and belief:


 


(i)                                    complied
with all Environmental Laws to which it is subject;


 


(ii)                                obtained
all Environmental Licences required in connection with its business; and


 


(iii)                            complied
with the terms of all such Environmental Licences,


 


in each case where failure to do so could
reasonably be expected to have a Material Adverse Effect.


 


99

















 


(b)                                  To
the best of its knowledge and belief, there is no Environmental Claim pending
or threatened against it, which could reasonably be expected to have a Material
Adverse Effect.


 


(c)                                  No:


 


(i)                                    property
currently or previously owned, leased, occupied or controlled by it is
contaminated with any Hazardous Substance; and


 


(ii)                                discharge,
release, leaking, migration or escape of any Hazardous Substance into the
Environment has occurred or is occurring on, under or from that property,


 


in each case in circumstances where the same
could reasonably be expected to have a Material Adverse Effect.


 


21.21                 Necessary
Authorisations


 


(a)                                  The
Necessary Authorisations required by it are in full force and effect;


 


(b)                                  it
is in compliance with the material provisions of each Necessary Authorisation
relating to it; and


 


(c)                                  to
the best of its knowledge, none of the Necessary Authorisations relating to it
are the subject of any pending or threatened proceedings or revocation;


 


in
each case, except where any failure to maintain such Necessary Authorisations
in full force and effect, any non-compliance or any proceedings or revocation
could not reasonably be expected to have a Material Adverse Effect and subject
to the Reservations.


 


21.22                 Intellectual
Property


 


The
Intellectual Property Rights owned by or licensed to it are all the material
Intellectual Property Rights required by it in order to carry out, maintain and
operate its business, properties and assets, and so far as it is aware, it does
not infringe, in any way any Intellectual Property Rights of any third party
save, in each case, where the failure to own or license the relevant
Intellectual Property Rights or any infringement thereof could not reasonably
be expected to have a Material Adverse Effect.


 


21.23                 Ownership of
Assets


 


Save
to the extent disposed of in a manner permitted by the terms of any of the
Finance Documents with effect from and after the Merger Closing Date, it has
good title to or valid leases or licences of or is otherwise entitled to use
all material assets necessary to conduct its business taken as a whole in a
manner consistent with the Agreed Business Plan except to the extent that the
failure to have such title, leases or licences or to be so entitled could not
be reasonably expected to have a Material Adverse Effect.


 


21.24                 Payment of Taxes


 


It
has no claims or liabilities which are being, or are reasonably likely to be,
asserted against it with respect to taxes which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect save to the extent it
(or any member of the Group) having set aside proper reserves for such claims
or liabilities, can demonstrate that the same are being contested in good faith
on the basis of appropriate professional advice.  All reports and returns on which taxes are
required to be shown have been filed within any applicable time limits and all
material taxes required to be paid have been paid within any applicable time
period other than to the extent that a failure to do so could not be reasonably
likely to have a Material Adverse Effect.


 


100

















 


21.25                 Pension Plans


 


(a)                                  Each
UK defined benefit pension plan operated by it generally for the benefit of the
employees of any member of the Bank Group has been valued by an actuary
appointed by the trustees of such plan in all material respects in accordance
with all laws applicable to it and using actuarial assumptions and
recommendations complying with statutory requirements or approved by the
actuary and since the most recent valuation the relevant employers have paid
contributions to the plan in accordance with the schedule of contributions in
force from time to time in relation to the plan, in the case of each of the
foregoing, save to the extent that any failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


(b)                                  In
relation to the US schemes or arrangements, it is in compliance in all material
respects with all applicable laws relating to any defined benefit pension plan
operated by it or in which it participates, save to the extent that any failure
to comply could not reasonably be expected to have a Material Adverse Effect.


 


(c)                                  Neither
it nor any ERISA Affiliate has, at any time, maintained or contributed to, and
is not obliged to maintain or contribute to, any Plan that is subject to Title
IV or Section 302 of ERISA and/or Section 412 of the Code or any Multi-employer
Plan.


 


21.26                 Security


 


Subject
to the Reservations, it is the legal or beneficial owner of all assets and
other property which it purports to charge, mortgage, pledge, assign or
otherwise secure pursuant to each Security Document and (subject to their
registration or filing at appropriate registries for the purposes of perfecting
the Security created thereunder and the Reservations) those Security Documents
to which it is a party create and give rise to valid and effective Security
having the ranking expressed in those Security Documents.


 


21.27                 Investment
Company Act


 


Neither
it nor any of its Subsidiaries is an “investment company,” or a company “controlled”
by an “investment company,” as such terms are defined in the US Investment
Company Act of 1940, as amended.  Neither
the making of any Drawing, nor the application of the proceeds or repayment
thereof by any Obligor, nor the consummation of the other transactions
contemplated hereby, will violate any provision of such Act or any rule,
regulation or order of the SEC promulgated thereunder.


 


21.28                 Margin Stock


 


In
the case of the Ultimate Parent only, no Advance (or the proceeds thereof) will
be used to purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock.  Neither the making of any Advance nor the use
of the proceeds thereof nor the occurrence of any other Utilisation will
violate or be inconsistent with the provisions of Regulation T, Regulation U or
Regulation X.


 


21.29                 Insurance


 


Each
member of the Bank Group is adequately insured for the purposes of its business
with reputable underwriters or insurance companies against such risks and to
such extent as is necessary or usual for prudent companies carrying on such a
business (other than insurance in respect of the underground portion of the
cable network and various pavement-based electronics associated with the cable
network as disclosed in the Group’s public disclosure documents) and except to
the extent that the failure to so insure could not reasonably be expected to
have a Material Adverse Effect.


 


101

















 


21.30                 Centre of Main
Interests


 


Its
Centre of Main Interests is the place in which its registered office is
situated or, if different, another place in the country in which its registered
office is situated, or England.


 


21.31                 Merger Documents


 


The
Merger Documents contain all the material terms and conditions of the Merger
and are in full force and effect and there have been no amendments, variations
or waivers to the Merger Documents (in whole or in part) other than amendments
thereto or waivers thereunder (excluding any waiver of or as contemplated by
Section 9.02(a) of the Merger Agreement) which are not material and adverse to
the financing under this Agreement, the Alternative Bridge Facility Agreement
or the Bridge Facility Agreement.


 


21.32                 Broadcasting Act
1990


 


Neither
it nor any member of any Joint Venture Group is a “disqualified person” for the
purposes of schedule 2 to such Act.


 


21.33                 Telecommunications,
Cable and Broadcasting Laws


 


(a)                                  To
the best of its knowledge and belief, it and each member of each Joint Venture
Group is in compliance in all material respects with all Telecommunications,
Cable and Broadcasting Laws (but excluding, for these purposes only, breaches
of Telecommunications, Cable and Broadcasting Laws which have been expressly
waived by the relevant regulatory authority), in each case, where failure to do
so could reasonably be expected to have a Material Adverse Effect.


 


(b)                                  To
the best of its knowledge and belief, it and each member of each Joint Venture
Group is in compliance in all material respects with any conditions set by the
Director General of Telecommunications or by OFCOM under section 45 of the
Communications Act 2003 as are applicable to it or such member of the Joint
Venture Group (as the case may be), in each case, where failure to do so could
reasonably be expected to have a Material Adverse Effect.


 


21.34                 US Patriot Act


 


(a)                                  It
has no reason to believe that it or any of its Affiliates:


 


(i)                                    is a
Restricted Party or controlled by a Restricted Party or has received funds or
property from a Restricted Party; or


 


(ii)                                has
violated any Anti-Terrorism Law or is the subject of any action or
investigation (including any relating to asset seizure, forfeiture or
confiscation) under any Anti-Terrorism Law.


 


(b)                                  It
and its Affiliates have taken reasonable measures to ensure compliance with the
Anti-Terrorism Laws.


 


21.35                 Liabilities of
the US Borrower


 


In
the case of the US Borrower only, it is a wholly owned Subsidiary of NTL
Victoria Limited and:


 


(a)                                  has
not traded or undertaken any commercial activities of any kind (other than by
entering into the Finance Documents to which it is party and the Notes);


 


(b)                                  does
not have any assets other than its rights under and any payments received
pursuant to the 


 


102

















 


Notes; and


 


 


(c)                                  does
not have any material liabilities or obligations (actual or contingent) to any
person other than as contemplated by the terms of the Finance Documents.


 


21.36                 Compliance with
ERISA


 


(a)                                  Each
Plan (and each related trust, insurance contract or fund) is in compliance with
its terms and with all applicable laws, including without limitation ERISA and
the Code, save where the failure to be so compliant could not reasonably be expected
to result in a Material Adverse Effect.


 


(b)                                  Each
Plan (and each related trust, if any) which is intended to be qualified under
Section 401(a) of the Code has received a determination letter from the
Internal Revenue Service to the effect that it meets the requirements of
Sections 401(a) and 501(a) of the Code.


 


(c)                                  Neither
it nor any member of the Group nor any ERISA Affiliate has ever maintained or
contributed to (or had any obligation to contribute to) any Multiemployer Plan
or Plan that is subject to Title IV or Section 302 of ERISA and/or Section 412
of the Code.


 


(d)                                  All
contributions required to be made with respect to a Plan have been made within
the time limit therefor, save where the failure to do so would not result in a
material liability.


 


(e)                                  Neither
it nor any other member of the Group nor any ERISA Affiliate has incurred any
material liability (including any indirect, contingent or secondary liability)
to or on account of a Plan pursuant to sections 409, 502(i) or 502(l) of ERISA
or section 4975 of the Code or expects to incur any such material liability
under any of the foregoing sections with respect to any Plan, in each case,
that could reasonably be expected to result in a Material Adverse Effect.


 


(f)                                    To
the Company’s knowledge, no condition exists which presents a material risk to
it or any other member of the Group or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the provisions of ERISA and
the Code enumerated in paragraph (e) of this Clause 21.36, that could
reasonably be expected to result in a Material Adverse Effect.


 


(g)                                 No
action, suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) that could reasonably be expected to result in a
Material Adverse Effect, is pending or, to the Company’s knowledge, expected or
threatened.


 


(h)                                 Each
group health plan (as defined in section 607(1) of ERISA or section 4980B(g)(2)
of the Code) which covers or has covered employees or former employees of any
member of the Group or any ERISA Affiliate has at all times been operated in
compliance with the provisions of Part 6 of subtitle B of Title I of ERISA and
section 4980B of the Code, save where the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.


 


(i)                                    It
and each other member of the Group do not maintain or contribute to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or any Plan the obligations with respect to which
could reasonably be expected to have a Material Adverse Effect.


 


(j)                                    Each
Foreign Pension Plan has been maintained in substantial compliance with its
terms and with the requirements of any and all applicable laws, statutes,
rules, regulations and orders


 


103

















 


and has been
maintained, where required, in good standing with applicable regulatory
authorities, in the case of each of the foregoing, save where the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.


 


(k)                                All
contributions required to be made with respect to a Foreign Pension Plan
maintained by it have been made within the time limit therefor, save where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.


 


21.37                 Repetition


 


Each
Repeating Representation is deemed to be made by the party identified as making
such Repeating Representation above in relation to itself, or in the case of
the Company in relation to itself and each Obligor or the Bank Group as a whole
(as applicable), by reference to the facts and circumstances then existing on
the Structuring Date, each Utilisation Date (save for a Utilisation Date in
respect of a Rollover Advance or a Documentary Credit which is being renewed
pursuant to Clause 5.2 (Renewal of
Documentary Credit)) and on the first day of each Interest Period.


 


22.                               FINANCIAL
INFORMATION


 


22.1                        Financial
Statements


 


(a)                                  Group Financial Information: The
Company shall provide to the Agents in sufficient copies for all the Lenders,
the following financial information relating to the Group:


 


(i)                                    as
soon as the same become available, but in any event within 120 days after
the end of each of the Ultimate Parent’s financial years, the consolidated
financial statements for such financial year in respect of the Group, audited
by a firm of auditors meeting the requirements of Clause 24.17 (Change in Auditors), and accompanied by
the related auditor’s report; and


 


(ii)                                as
soon as they become available but in any event within 45 days after the end of
each Financial Quarter, the unaudited consolidated quarterly financial
statements of the Group commencing with the first complete Financial Quarter
arising after the Merger Closing Date (other than, for so long as the Ultimate
Parent remains a reporting company under the rules of the SEC, the last
Financial Quarter in each of the Ultimate Parent’s financial years) together
with, commencing with the Financial Quarter ended 30 June 2006, a commentary
consistent with disclosure in the nature of a “Management’s Discussion and
Analysis of Financial Condition and Results of Operations”, in relation to the
financial condition and results of operations of the Group.


 


In relation to the financial information of
the Group only, the above requirements may be satisfied by the provision,
within the specified time periods, of copies of reports for the Group already
filed with the SEC for the relevant period (it being acknowledged that the SEC
does not as at the Original Execution Date require the filing of quarterly
financial statements for the fourth Financial Quarter of any financial year).


 


(b)                                  Company, TCN and Bank Group Financial
Information: Subject to Clause 22.2 (Provisions relating to the Bank Group Financial Information),
the Company shall provide to the Agents in sufficient copies for all the
Lenders, the following financial information relating to the Company, TCN or
the Bank Group, as the case may be:


 


(i)                                    as
soon as they become available but in any event within 120 days after the end of
each of the Company’s financial years, the audited consolidated financial
statements for such financial year for the Company and (except to the extent
that TCN is a


 


104

















 


Subsidiary of
the Company) within 120 days after the end of each of TCN’s financial years,
the audited consolidated financial statements for such financial year for TCN;


 


(ii)                                as
soon as they become available but in any event within 120 days after the end of
each of the Company’s financial years, the unaudited pro forma balance sheet,
statement of cash flows and statement of operations for such financial year in
respect of the Bank Group substantially in the form set out in Schedule 13 (Pro Forma Bank Group Financial Statements)
or with such amendments as may be necessary to reflect changes made to the
Group’s public financial information as agreed by the Facility Agent (acting
reasonably), together with a commentary from the management in relation to the
key drivers for the financial performance of the Bank Group for such financial
year.


 


(iii)                            as
soon as they become available but in any event within 50 days (or 90 days for
the Financial Quarter ended 31 March 2006) after the end of each of the first
three Financial Quarters of each financial year (and within 120 days after the
end of the last Financial Quarter), the unaudited pro forma balance sheet,
statement of cash flows and statement of operations for such Financial Quarter
in respect of the Bank Group substantially in the form set out in Schedule 13 (Pro Forma Bank Group Financial Statements)
or with such amendments as may be necessary to reflect changes made to the
Group’s public financial information as agreed by the Facility Agent (acting
reasonably).


 


(c)                                  Borrower Financial Information:  Each Borrower
shall provide, to the extent such information is required by any Lender to
enable it to comply with any law, regulation or other requirement of any
central bank or other fiscal, monetary or other authority, promptly following
request by such Lender, such Borrower’s most recent annual audited financial
statements to the extent the same are in final form.


 


22.2                        Provisions
relating to Bank Group Financial Information


 


(a)                                  The
financial information of the Bank Group delivered pursuant to paragraphs
(b)(ii) and (b)(iii) of Clause 22.1 (Financial
Statements) shall be prepared in good faith using the same
methodologies applied in preparing the audited consolidated financial
statements of the Ultimate Parent delivered to the Agents pursuant to
sub-paragraph (a)(i) of Clause 22.1 (Financial
Statements).


 


(b)                                  To
the extent possible, all financial data used in preparing the financial
information of the Bank Group will be derived from:


 


(i)                                    in
the case of financial information in respect of a full financial year of the
Bank Group, the balance sheet, statement of cash flows, statement of operations
and notes to the audited consolidated financial statements of the Ultimate
Parent in respect of that financial year, including without limitation, revenue
(broken down by “Business”, “Consumer” and “Content”); and


 


(ii)                                in
respect of financial information in respect of any Financial Quarter of any
financial year of the Bank Group, from the balance sheet, statement of cash
flows, statement of operations and notes to the unaudited consolidated
quarterly financial statements of the Ultimate Parent for the corresponding
Financial Quarter, including without limitation, revenue (broken down by “Business”,
“Consumer” and “Content”),


 


provided that in the event that it shall not
be possible to apply the financial data used in the financial statements or
management accounts of the Ultimate Parent, as the case may be, such


 


105

















 


financial
information will be determined in good faith based on allocation methodologies
approved by the Board of Directors of the Company.


 


(c)                                  For
any period prior to 31 March 2007, Bank Group Consolidated Revenue shall
represent the combination of revenue of the Ultimate Parent and NTL (without
duplication) and following the consummation of the Baseball Acquisition, for
any period ending on a date prior to the first anniversary of the Baseball
Effective Date, Bank Consolidated Revenue shall represent the combination of
the Ultimate Parent, NTL and Baseball (without duplication), in each case, for
the relevant period.


 


(d)                                  Financial
statements for the Bank Group shall reflect, for any period prior to 31 March
2007 and/or the Baseball Effective Date, the combination of the historical
statements of the Ultimate Parent and NTL and Baseball (as the case may be)
(without duplication) giving effect to the Merger and/or the Baseball
Acquisition (as the case may be) as if the Merger and/or the Baseball
Acquisition (as the case may be) had occurred as of the beginning of the
relevant period and reflecting such adjustments to give effect to the Merger
and/or the Baseball Acquisition (as the case may be) including elimination of
balance sheet and other adjustments as if of the Merger and/or the Baseball
Acquisition (as the case may be). Such combination of historical statements
will be carried out by the Company in good faith and having regard to publicly
available financial information of the NTL Group, Telewest Group and/or the
Baseball Group prior to the Merger or the Baseball Acquisition (as the case may
be).


 


22.3                        Budget


 


In
respect of each financial year, as soon as the same becomes available and in
any event by no later than 30 days after the beginning of each financial year
of the Bank Group (other than in respect of the financial year ended 31
December 2006), the Company shall deliver to the Agents, in sufficient copies
for the Lenders, the annual operating budget, which as regards paragraphs (b)
and (c) below shall be in the format set out in Schedule 14 (Pro Forma Budget Information) or with such
amendments as may be necessary to reflect changes made to the Group’s public
financial information as agreed by the Facility Agent (acting reasonably) and
prepared by reference to each Financial Quarter in respect of such financial
year of the Bank Group.  The annual
operating budget shall be prepared in a form consistent with past practice of
the Company and shall include:


 


(a)                                  forecasts
of any projected material Disposals (including timing and anticipated Net
Proceeds thereof) on a consolidated basis for the Bank Group;


 


(b)                                  projected
annual statements of operations (including projected revenue and operating
costs) on a consolidated basis for the Bank Group in the format set out in
Schedule 14 (Pro Forma Budget Information)
or with such amendments as may be necessary to reflect changes made to the Group’s
public financial information as agreed by the Facility Agent (acting
reasonably);


 


(c)                                  projected
estimated pro forma balance sheets and estimated pro forma statements of cash
flows on a consolidated basis for the Bank Group in the format set out in
Schedule 14 (Pro Forma Budget Information)
or with such amendments as may be necessary to reflect changes made to the
Group’s public financial information as agreed by the Facility Agent (acting
reasonably);


 


(d)                                  projected
capital expenditure to be included for each Financial Quarter of such financial
year on a consolidated basis for the Bank Group;


 


(e)                                  projected
ratios in respect of each of the financial covenants set out in Clause 23.2 (Ratios) for each Financial Quarter in such
financial year; and


 


106

















 


(f)                                    a
commentary from the management in relation to the key drivers for the Bank
Group for such financial year.


 


The
Company shall provide the Agents with any details of material changes in the
projections set out in any Budget delivered under this Clause 22.3 as soon as
reasonably practicable after it becomes aware of any such change.


 


22.4                        Other
Information


 


The
Company shall and shall procure that each of the Obligors shall from time to
time on the request of the Facility Agent and/or Administrative Agent:


 


(a)                                  provide
the Facility Agent and/or Administrative Agent (as applicable) with such
information about the business and financial condition of the Bank Group or any
member of the Bank Group (including such member’s business) as the Facility Agent
and/or Administrative Agent (as applicable) may reasonably require, provided
that the Company shall not be under any obligation to provide, or procure the
providing of, any information the supply of which would be contrary to any
confidentiality obligation binding on any member of the Bank Group or where the
supply of such information could prejudice the retention of legal privilege in
such information and provided further that no Obligor shall (and the Company shall
procure that no member of the Bank Group shall) be able to deny the Facility
Agent and/or Administrative Agent (as applicable) any such information by reason
of it having entered into a confidentiality undertaking which would prevent it
from disclosing, or be able to claim any legal privilege in respect of, any
financial information relating to itself or the Group; and


 


(b)                                  provide
all then existing information about the business and financial condition of the
Bank Group or any member of the Bank Group (including such member’s business)
as Standard & Poor’s or Moody’s may reasonably require and extend all
reasonable co-operation for the purpose of determining or assessing the credit
ratings (if any) assigned to the Facilities, the Bridge Facility Agreement, the
Alternative Bridge Facility Agreement, the Existing High Yield Notes, any High
Yield Refinancing or the New High Yield Notes, and the Company shall use all
reasonable efforts to meet with representatives of Standard & Poor’s and
Moody’s no less frequently than once in each calendar year.


 


22.5                        Compliance
Certificates


 


The
Company shall ensure that each set of financial information delivered by it
pursuant to sub-paragraphs (a), (b)(ii) and (b)(iii) of Clause 22.1 (Financial Statements) is accompanied by a
Compliance Certificate signed by two of its authorised signatories (at least
one of whom shall be a Financial Officer) which:


 


(a)                                  where
the relevant financial statements being delivered relate to a period ending on
a Quarter Date in respect of which the financial covenants are required to be
tested in accordance with paragraphs (d) and (e) of Clause 23.2 (Ratios):


 


(i)                                    confirms
compliance (or detailing any non-compliance) with the relevant financial
covenants set out in Clause 23 (Financial
Condition) and showing figures representing the actual financial
ratios then in effect;


 


(ii)                                attaches
a working paper (the “Attached Working Paper”)
setting out the calculations showing compliance with the financial covenants
set out in Clause 23 (Financial Condition)
and the information from which such calculations are derived (including the
calculations for the components of such covenants defined in Clause 23.1 (Financial Definitions) on a line by line
basis); and


 


107

















 


(iii)                            confirms
that the information contained in the Attached Working Paper has been prepared
on the basis of the same information and methodology used to prepare the
appropriate financial information;


 


(b)                                  in
relation to a Compliance Certificate delivered with the Bank Group’s annual
financial information only:


 


(i)                                    confirms
the Bank Group Consolidated Revenues for the financial year ended on that
Quarter Date; and


 


(ii)                                confirms
compliance (or detailing any non-compliance) with the 80% Security Test; and


 


(c)                                  in
the case of each Compliance Certificate delivered pursuant to this Clause 22.5,
confirms the absence of any Default.


 


in
each case, as at the end of such financial year or Financial Quarter to which
such financial information relates.


 


22.6                        Access


 


If:


 


(a)                                  an
Event of Default has occurred, but only while such Event of Default is
continuing, (provided that with respect to an Event of Default relating to a
breach of any covenant in Clause 23 (Financial
Condition), such Event of Default shall be deemed to be continuing
until such time that the Company has delivered a Compliance Certificate
pursuant to Clause 22.5 (Compliance
Certificates) demonstrating that the Company is in compliance with
each of the covenants set out in Clause 23 (Financial
Condition)); or


 


(b)                                  in
the reasonable opinion of an Instructing Group, a breach of any covenant in
Clause 23 (Financial Condition)
is reasonably likely to occur,


 


in each such circumstance, at the Obligors’
expense (in the case of sub-paragraph (a)) and at the Lenders’ expense (in the
case of sub-paragraph (b)), but without causing any undue interruption to the
normal business operations of such Obligor or any member of the Bank Group:


 


(i)                                    the
Facility Agent shall be entitled to call for an independent audit and
investigation which is reasonable in scope and degree having regard to the
nature of the Event of Default or suspected breach (as the case may be) or the
financial position of the Bank Group; and


 


(ii)                                the
Facility Agent, any Finance Party, or representative of the Facility Agent or
such Finance Party (an “Inspecting Party”)
shall be entitled to have access, together with its accountants or other
professional advisers, during normal business hours, to inspect or observe such
part of the Group Business as is owned or operated by any Obligor or any member
of the Bank Group, and to have access to books, records, accounts, documents,
computer programmes, data or other information in the possession of or
available to such Obligor or member of the Bank Group and to take such copies
as may be considered appropriate by such Inspecting Party, provided that no
Obligor shall (and the Company shall not be obliged to procure that any member
of the Bank Group shall) be under any obligation to allow any person to have
access to any books, records, accounts, documents, computer programmes, data or
other information or to take copies thereof where to do so would breach any
confidentiality


 


108

















 


obligation
binding on any member of the Group or would prejudice the retention of legal
privilege to which such Obligor or member of the Group is then entitled in
respect of such books, records, accounts, documents, computer programmes, data
or other information and provided further that no Obligor shall (and the
Company shall procure that no member of the Bank Group shall) be able to deny
the Facility Agent any such information by reason of it having entered into a confidentiality
undertaking which would prevent it from disclosing, or be able to claim any
legal privilege in respect of, any financial information relating to itself or
the Group.


 


22.7                        Change
in Accounting Practices


 


The
Company shall ensure that each set of financial information delivered to the
Agents pursuant to paragraphs (a) and (b) of Clause 22.1 (Financial Statements) is prepared using
accounting policies, practices and procedures consistent with that applied in
the preparation of NTL’s Original Financial Statements, unless in relation to
any such set of financial information, the Company elects to notify the Agents
that there have been one or more changes in any such accounting policies,
practices or procedures (including, without limitation, any change in the basis
upon which costs are capitalised) and:


 


(a)                                  in respect
of any change in the basis upon which the information required to be delivered
pursuant to sub-paragraphs (a)(i) or (a)(ii) of Clause 22.1 (Financial
Statements) is prepared, the Ultimate Parent provides:


 


(i)                                    a
description of the changes and the adjustments which would be required to be
made to that financial information in order to cause them to reflect the
accounting policies, practices or procedures upon which such Original Financial
Statements were prepared; and


 


(ii)                                sufficient
information, in such detail and format as may be reasonably required by the
Facility Agent, to enable the Lenders to make an accurate comparison between
the financial positions indicated by that financial information and by such
Original Financial Statements,


 


and any reference in this Agreement to that
financial information shall be construed as a reference to that financial
information as adjusted to reflect the basis upon which the Original Financial
Statements were prepared; or


 


(b)                                  the
Company notifies the Facility Agent that it is not longer practicable to test
compliance with the financial covenants set out in Clause 23 (Financial Condition) against the financial
information required to be delivered pursuant to this Clause 22 or that it
wishes to cease preparing the additional information required by sub-paragraph
(a) above, in which case:


 


(i)                                    the
Facility Agent and the Company shall enter into negotiations with a view to
agreeing alternative financial covenants to replace those contained in Clause
23 (Financial Condition) in order
to maintain a consistent basis for such financial covenants (and for approval
by an Instructing Group); and


 


(ii)                                if
the Facility Agent and the Company agree alternative financial covenants to
replace those contained in Clause 23 (Financial Condition)
which are acceptable to an Instructing Group, such alternative financial
covenants shall be binding on all parties hereto; and


 


(iii)                            if,
after three months following the date of the notice given to the Facility Agent
pursuant to this sub-paragraph (b), the Facility Agent and the Company cannot
agree alternative financial covenants which are acceptable to an Instructing
Group, the


 


109

















 


Facility Agent
shall refer the matter to any of the Permitted Auditors as may be agreed
between the Company and the Facility Agent for determination of the adjustments
required to be made to such financial information or the calculation of such
ratios to take account of such change, such determination to be binding on the
parties hereto, provided that pending such determination (but not thereafter)
the Company shall continue to prepare financial information and calculate such
covenants in accordance with paragraph (a) above.


 


22.8                        Notifications


 


The
Company shall furnish or procure that there shall be furnished to the Agents in
sufficient copies for each of the Lenders:


 


(a)                                  as
soon as reasonably practicable, documents required to be despatched by the
Ultimate Parent to its shareholders generally (or any class of them) in their
capacity as such and all documents relating to the financial obligations of any
Obligor despatched by or on behalf of any Obligor to its creditors generally
(in their capacity as creditors) it being agreed that to the extent such
information is filed with the SEC, such filing will satisfy the Company’s
obligations with regard to the provision of such information;


 


(b)                                  as
soon as reasonably practicable after the same are instituted or, to its
knowledge, threatened, details of any litigation, arbitration or administrative
proceedings involving any member of the Bank Group which, is reasonably likely
to be adversely determined and if adversely determined, could reasonably be
expected to have a Material Adverse Effect; and


 


(c)                                  written
details of any Default promptly upon becoming aware of the same, and of all
remedial steps being taken and proposed to be taken in respect of that Default.


 


22.9                        Role
of the Administrative Agent and US Paying Agent


 


Notwithstanding
the rights of the Administrative Agent and the US Paying Agent to receive or
request certain documentation and other information as set out in this Clause
22 (Financial Information), the
other Finance Parties hereby expressly acknowledge and agree that the
Administrative Agent and the US Paying Agent (a) are under no obligation to
ensure that any such documentation or other information is made available to
all or any of them, (b) may (in its sole discretion) determine whether or not
to exercise any of its rights as set out in this Clause 22 (Financial Information) and (c) shall have
no liability whatsoever to any other Finance Party for the failure to exercise,
or any delay in exercising, any of its rights set out in this Clause 22 (Financial Information).


 


23.                               FINANCIAL
CONDITION


 


23.1                        Financial
Definitions


 


In
this Agreement the following terms have the following meanings:


 


“Bank Group Cash Flow” means, in respect of any period,
Consolidated Operating Cashflow for that period (excluding for this purpose all
Permitted Joint Venture Proceeds for such period and/or Permitted Joint Venture
Net Operating Cash Flow for such period included in Consolidated Operating
Cashflow pursuant to paragraph (d) of the definition thereof) after:


 


(a)                                  adding back:


 


(i)                                    any
decrease in the amount of Working Capital at the end of such period compared
against the Working Capital at the start of such period;


 


110

















 


(ii)                                all
cash extraordinary or non-recurring gains during that period to the extent not
included in Consolidated Operating Cashflow;


 


(iii)                            any
amount received in cash in that period by members of the Bank Group in respect
of income and related taxes; and


 


(iv)                               all
Permitted Joint Venture Proceeds received for such period;


 


(b)                                  deducting:


 


(i)                                    the
actual capital expenditure of members of the Bank Group during such period and
in calculating Bank Group Cash Flow for the purposes of Clause 12.4 (Repayment from Excess Cashflow) only, the aggregate of the
consideration paid for or cost of any permitted acquisitions and the amount of
any investments in Joint Ventures made in the period by the member of the Bank
Group to the extent included in Consolidated Operating Cashflow;


 


(ii)                                any
increase in the amount of Working Capital at the end of such period compared
against the Working Capital at the start of that period;


 


(iii)                            any
amount paid in cash in that period by any member of the Bank Group in respect
of income and related taxes;


 


(iv)                               all
cash extraordinary or non-recurring losses during that period to the extent not
included in Consolidated Operating Cashflow;


 


(v)                                   in
calculating Bank Group Cash Flow for the purposes of Clause 12.4 (Repayment from Excess Cash Flow) only, any
amount paid in cash in that period in respect of the items included in the
calculation of net income or loss in the definition of Consolidated Operating
Cashflow and any amounts paid in cash in respect of payments made or paid
during such period by any member of the Bank Group to any person who is not a
member of the Bank Group including without limitation, the payment of all costs
and expenses in connection with transactions contemplated by the Finance
Documents and the Bridge Finance Documents; and


 


(vi)                               any
amount paid in cash in that period in respect of dividends, distributions,
loans, investments or other similar payments made or paid during such period by
any member of the Bank Group to any person who is not a member of the Bank
Group and any cash charges falling under sub-paragraph (a)(ix) of “Consolidated
Operating Cashflow” which have been added back for the purposes of calculating
such definition,


 


provided that in no event shall amounts
constituting Consolidated Debt Service be deducted from Bank Group Cash Flow,
and no amount shall be included or excluded more than once and provided that,
for the avoidance of doubt, in calculating Bank Group Cash Flow for the
purposes of Clause 12.4 (Repayment from
Excess Cash Flow), Equity Proceeds, Debt Proceeds and Net Proceeds
and the proceeds of any Subordinated Funding shall be excluded.


 


“Cash” means at any time:


 


(a)                                  all Cash Equivalent Investments; and


 


(b)                                  cash (in cleared balances) denominated in Sterling (or any other
currency freely convertible into Sterling) and credited to an account in the
name of a member of the Bank Group with an


 


111

















 


Eligible
Deposit Bank and to which such a member of the Bank Group is alone beneficially
entitled and for so long as:


 


(i)                                    such cash is repayable on demand (including any cash held on time
deposit which is capable of being broken and the balance received on same day
notice provided that any such cash shall only be taken into account net of any
penalties or costs which would be incurred in breaking the relevant time
deposit) and repayment of such cash is not contingent on the prior discharge of
any other indebtedness of any member of the Bank Group or of any other person
whatsoever or on the satisfaction of any other condition; or


 


(ii)                                such cash has been deposited with an Eligible Deposit Bank as
security for any performance bond, guarantee, standby letter of credit or
similar facility the contingent liabilities relating to such having been
included in the calculation of Consolidated Total Debt.


 


“Consolidated Debt Service” means, in respect of any period,
the aggregate of:


 


(a)                                  the Consolidated Total Net Cash Interest Payable in respect of such
period; and


 


(b)                                  save to the extent immediately reborrowed, the aggregate of all
scheduled payments (excluding any voluntary and mandatory prepayments) made in
such period of principal, capital or nominal amounts in respect of Consolidated
Total Debt.


 


“Consolidated
Net Debt” means, at any time, the Consolidated Total Debt at such
time less Cash, in cleared balances at such time, credited to any account in
the name of a member of the Bank Group subject to a maximum aggregate Cash
amount of £200,000,000 (or its equivalent in other currencies).


 


“Consolidated
Net Income” means for any period, with respect to any person, net
income (or loss) after taxes for such period of such person (calculated on a
consolidated basis, if it has Subsidiaries) determined in accordance with GAAP.


 


“Consolidated
Operating Cashflow” means, in respect of any period:


 


(a)                                  Consolidated Net Income of the Bank Group for such period, in
accordance with GAAP as then in effect adding back (or deducting as the case
may be) (only to the extent used in arriving at net income or loss of the Bank
Group):


 


(i)                                    non-cash gains or losses, whether extraordinary, recurring or
otherwise (excluding however any non-cash charge to the extent that it
represents amortisation of a prepaid expense that was paid in a prior period or
an accrual of, or a reserve for, cash charges or expenses in any future
period), and including without limitation non-cash expenses for compensation relating
to the granting of options and restricted stock, sale of stock and similar
arrangements;


 


(ii)                                income tax expense or benefit;


 


(iii)                            foreign currency transaction gains and losses and foreign currency
translation differences;


 


(iv)                               other non-operating gains and losses, including the costs of, and
accounting for, financial instruments and gains and losses on disposals of
fixed assets;


 


(v)                                   share of income or losses from equity investments and minority
interests;


 


112

















 


(vi)                               interest expense and interest income including, without limitation,
amortisation of debt issuance cost and debt discount;


 


(vii)                           depreciation and amortisation;


 


(viii)        extraordinary items;


 


(ix)                              at the election of the Company, cash charges resulting from any
third party professional, advisory, legal and accounting fees and out-of-pocket
expenses reasonably incurred in connection with the Merger, the Baseball
Scheme, an acquisition or investment, any financing (in any such case, whether
completed or not) provided that the aggregate amount added back in respect of
such fees and expenses shall not at any time exceed £25 million;


 


(x)                                  restructuring charges determined in
accordance with FAS 146 in an amount of up to £50 million for the financial year
during which the Merger Closing Date occurs (or £60 million in the event that
the Baseball Acquisition also occurs during such financial year (other than
pursuant to a Stand Alone Baseball Financing)) (“Year 1”)
and up to £50 million in the following financial year (or £60 million in the
event that the Baseball Acquisition has occurred during such financial year or
during Year 1 (in either case, other than pursuant to a Stand Alone Baseball
Financing)) (“Year 2”) provided that any
unutilised amounts from Year 1 may be carried forward to Year 2 and any
unutilised amounts from Year 2 (including, for the avoidance of doubt, any
amounts rolled over from Year 1) may be carried forward and added back to
Consolidated Operating Cashflow in the period from the end of Year 2 to the
third anniversary of the Merger Closing Date; and


 


(xi)                              cumulative changes in GAAP from and including the accounting
principles applied in the preparation of the Original Financial Statements,


 


minus


 


(b)                                  the Excluded Group Operating Cashflow for that period (to the extent
included in the calculation of paragraph (a) above);


 


(c)                                  to the extent included in Consolidated Net Income for such period
and not otherwise deducted pursuant to paragraph (a) above:


 


(i)                                    that portion of the share of profit or loss from Permitted Joint
Ventures; and


 


(ii)                                the aggregate amount of all interest income and/or dividends
received during such period from one or more of the Permitted Joint Ventures;


 


plus


 


(d)                                  the lower of (i) the aggregate Permitted Joint Venture Proceeds
actually received by the Bank Group during such period and (ii) the aggregate
of the proportionate interests of each member of the Bank Group in any
Permitted Joint Venture Net Operating Cash Flow for such period.


 


“Consolidated Total Debt” means, at any time (without double
counting):


 


(a)                                  the aggregate principal, capital or nominal amounts (including any
Interest capitalised as principal) of Financial Indebtedness of any member of
the Bank Group (including, without limitation, Financial Indebtedness arising
under or pursuant to the Finance Documents); plus


 


113

















 


(b)                                  the aggregate principal, capital or nominal amounts (including any
Interest capitalised as principal) of Financial Indebtedness of any member of
the Group to the extent it is Non-Bank Group Serviceable Debt;


 


excluding any Financial
Indebtedness of any member of the Group to another member of the Group or under
any Subordinated Funding, to the extent not prohibited under this Agreement and
excluding any Financial Indebtedness arising by reason only of mark to market
fluctuations in respect of interest rate hedging arrangements since the
original date on which such interest rate hedging arrangements were
consummated.


 


“Consolidated Total Net Cash Interest Payable” means, in
respect of any period, the aggregate amount of the Interest which has accrued
on the Consolidated Total Debt during such period (but excluding for the
avoidance of doubt any fees payable in or amortised during such period) but deducting any Interest actually received
in cash by any member of the Bank Group,


 


“Current Assets” means the aggregate of trade and other
receivables (net of allowances for doubtful debts), prepayments and all other
current assets of the Bank Group (which until such time as balance sheets are
prepared for the Bank Group shall be allocated from the relevant consolidated
financial statements of the Group to the Bank Group by the board of directors
of the Company acting in good faith) maturing within twelve months from the
date of computation, as required to be accounted for as current assets under
GAAP but excluding cash and Cash Equivalent Investments and excluding the
impact of Hedging Agreements.


 


“Current Liabilities” means the aggregate of all liabilities
(including accounts payable, accruals and provisions) of the Bank Group (which
until such time as balance sheets are prepared for the Bank Group shall be
allocated to the Bank Group from the relevant consolidated financial statements
of the Group by the board of directors of the Company acting in good faith)
falling due within twelve months from the date of computation and required to
be accounted for as current liabilities under GAAP but excluding Financial
Indebtedness of the Bank Group falling due within such period and any interest
on such Financial Indebtedness due in such period and excluding the impact of
Hedging Agreements.


 


“Eligible Deposit Bank” means any bank or financial
institution which has a short term rating of at least A1 granted by Standard
& Poor’s or P1 granted by Moody’s.


 


“Excluded Group Operating Cashflow” means, in respect of any
period, that proportion of Consolidated Net Income which is attributable to the
Excluded Group for that period adding back (or deducting as the case may be)
(to the extent used in arriving at net profit or loss of the Excluded Group):


 


(a)                                  non-cash gains or losses, whether extraordinary, recurring or
otherwise (excluding however any non-cash charge to the extent that it
represents amortisation of a prepaid expense that was paid in a prior period or
an accrual of, or a reserve for, cash charges or expenses in any future
period), and including without limitation non-cash expenses for compensation
relating to the granting of options and restricted stock, sale of stock and
similar arrangements;


 


(b)                                  income tax expense or benefit;


 


(c)                                  foreign currency transaction gains and losses and foreign currency
translation differences;


 


(d)                                  other non-operating gains and losses, including the costs of, and
accounting for, financial instruments and gains and losses on disposals of
fixed assets;


 


(e)                                  share of income or losses from equity investments and minority
interests;


 


114

















 


(f)                                    interest expense and interest income including, without limitation,
amortisation of debt issuance cost and debt discount;


 


(g)                                 depreciation and amortisation;


 


(h)                                 extraordinary items;


 


(i)                                    restructuring charges determined in accordance with FAS 146; and


 


(j)            cumulative changes in GAAP from the Original Execution
Date.


 


“Financial Quarter” means the period commencing on the day
immediately following any Quarter Date in each year, and ending on the next
succeeding Quarter Date.


 


“Interest” means:


 


(a)                                  interest and amounts in the nature of interest accrued in respect of
any Financial Indebtedness (including without limitation, in respect of
obligations under finance or capital leases or hire purchase payments);


 


(b)                                  discounts suffered and repayment premiums payable in respect of
Financial Indebtedness, in each case to the extent applicable GAAP requires
that such discounts and premiums be treated as or in like manner to interest;


 


(c)                                  discount fees and acceptance fees payable or deducted in respect of
any Financial Indebtedness (including all fees payable in connection with any
Documentary Credit, any other letters of credit or guarantees and any Ancillary
Facility);


 


(d)                                  any other costs, expenses and deductions of the like effect and any
net payment (or, if appropriate in the context, receipt) under any Hedging
Agreement or like instrument, taking into account any premiums payable for the
same, and the interest element of any net payment under any Hedging Agreement;
and


 


(e)                                  commitment and non-utilisation fees (including, without limitation,
those payable under this Agreement) but excluding agent’s fees, front-end,
management, arrangement and participation fees and repayment premiums with
respect to any Financial Indebtedness (including, without limitation, all those
payable under the Finance Documents).


 


“Permitted
Joint Venture Net Operating Cash Flow” means the aggregate of the
proportionate interests of each member of the Group in any Permitted Joint
Venture of such Joint Venture’s Consolidated Net Income for such period adding
back (or deducting as the case may be) (only to the extent used in arriving at
consolidated net income or loss of such Joint Venture):


 


(a)                                  non-cash gains or losses, whether extraordinary, recurring or
otherwise (excluding however any non-cash charge to the extent that it represents
amortisation of a prepaid expense that was paid in a prior period or an accrual
of, or a reserve for, cash charges or expenses in any future period), and
including without limitation non-cash expenses for compensation relating to the
granting of options and restricted stock, sale of stock and similar
arrangements;


 


(b)                                  income tax expense or benefit;


 


(c)                                  foreign currency transaction gains and losses and foreign currency
translation differences;


 


(d)                                  other non-operating gains and losses, including the costs of, and
accounting for, financial instruments and gains and losses on disposals of
fixed assets;


 


115

















 


(e)                                  share of income or losses from equity investments and minority
interests;


 


(f)                                    interest expense and interest income including, without limitation,
amortisation of debt issuance cost and debt discount;


 


(g)                                 depreciation and amortisation;


 


(h)                                 extraordinary items;


 


(i)                                    restructuring charges determined in accordance with FAS 146; and


 


(j)                                    cumulative changes in GAAP from the Original Execution Date.


 


“Permitted Joint Venture Proceeds” means the cash proceeds of
all payments of interest and principal received under Financial Indebtedness
and of all dividends, distributions or other payments (including management
fees) made by any Permitted Joint Venture to any member of the Bank Group.


 


“Quarter Date” means each of 31 March, 30 June, 30 September
and 31 December in each financial year of the Company.


 


“Working Capital” means on any date Current Assets less
Current Liabilities.


 


23.2                        Ratios


 


With
effect from (and including) the end of the third full Financial Quarter after
the Merger Closing Date, the financial condition of the Group or the Bank
Group, as the case may be, as evidenced by the financial information provided
pursuant to paragraphs (a) and (b) of Clause 22.1 (Financial Statements) and the Attached Working Paper
referred to in Clause 22.5 (Compliance
Certificates) shall be such that:


 


(a)                                  Leverage Ratio: Consolidated Net Debt to Consolidated Operating
Cashflow


 


Subject to paragraph (e) below,
Consolidated Net Debt as at any Quarter Date specified in the table in
paragraph (d) of this Clause 23.2, shall not be more than X times Consolidated
Operating Cashflow calculated on a rolling twelve month basis ending on such
Quarter Date, where X has the value indicated for such Quarter Date in such
table.


 


(b)                                  Interest Coverage Ratio: Consolidated Operating Cashflow to
Consolidated Total Net Cash Interest Payable


 


Subject to paragraph (e) below, Consolidated
Operating Cashflow calculated on a rolling twelve month basis ending on any
Quarter Date specified in the table in paragraph (d) of this Clause 23.2, shall
not be less than Y times Consolidated Total Net Cash Interest Payable
calculated on a rolling twelve month basis, where Y has the value indicated for
such period in such table, provided that (to the extent applicable) in the case
of the test falling on 31 December 2006:


 


(i)                                    Consolidated
Operating Cashflow shall be calculated in accordance with the principles
specified in paragraph (d) of Clause 22.2 (Provisions relating to
Bank Group Financial Information); and


 


(ii)                                Consolidated
Total Net Cash Interest Payable shall be calculated by annualising (on the
basis of the actual number of days in such period and a 365 day year) the
Consolidated Total Net Cash Interest Payable for the period commencing on the


 


116

















 


Merger Closing
Date and ending on 31 December 2006.


 


(c)                                  Debt Service Coverage Ratio: Bank Group Cash Flow to
Consolidated Debt Service


 


Subject to paragraph (e) below, Bank Group
Cash Flow calculated for each rolling twelve month period ending on each
Quarter Date specified in the table in paragraph (d) of this Clause 23.2, shall
not be less than Z times Consolidated Debt Service for such period where Z has
the value indicated for such period in such table provided that (to the extent
applicable) in the case of the test falling on 31 December 2006:


 


(i)                                    Bank
Group Cash Flow shall be calculated in accordance with the principles specified
in paragraph (d) of Clause 22.2 (Provisions relating to
Bank Group Financial Information); and


 


(ii)                                Consolidated
Debt Service shall be calculated by annualising (on the basis of the actual
number of days in such period and a 365 day year) the Consolidated Debt Service
for the period commencing on the Merger Closing Date and ending on 31 December
2006.


 


(d)                                  Ratio Table


 


This is the table referred to in paragraphs
(a) to (c) above.


 


	
   

  	
   

  	
  Leverage Ratio

  	
   

  	
  Interest 

  Coverage Ratio

  	
   

  	
  Debt Service

  Coverage Ratio

  	
   

  
	
  Quarter Date

  	
   

  	
  X

  	
   

  	
  Y

  	
   

  	
  Z

  	
   

  
	
  31 December 2006

  	
   

  	
  5.45 : 1

  	
   

  	
  2.30 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  31 March 2007

  	
   

  	
  5.25 : 1

  	
   

  	
  2.35 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  30 June 2007

  	
   

  	
  5.00 : 1

  	
   

  	
  2.50 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  30 September 2007

  	
   

  	
  4.70 : 1

  	
   

  	
  2.65 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  31 December 2007

  	
   

  	
  4.50 : 1

  	
   

  	
  2.80 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  31 March 2008

  	
   

  	
  4.00 : 1

  	
   

  	
  3.00 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  30 June 2008

  	
   

  	
  4.00 : 1

  	
   

  	
  3.00 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  30 September 2008

  	
   

  	
  3.70 : 1

  	
   

  	
  3.30 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  31 December 2008

  	
   

  	
  3.70 : 1

  	
   

  	
  3.30 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  31 March 2009

  	
   

  	
  3.40 : 1

  	
   

  	
  3.60 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  30 June 2009

  	
   

  	
  3.40 : 1

  	
   

  	
  3.60 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  30 September 2009

  	
   

  	
  3.00 : 1

  	
   

  	
  4.00 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  31 December 2009

  	
   

  	
  3.00 : 1

  	
   

  	
  4.00 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  31 March 2010

  	
   

  	
  2.75 : 1

  	
   

  	
  4.25 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  30 June 2010

  	
   

  	
  2.75 : 1

  	
   

  	
  4.25 : 1

  	
   

  	
  1 : 1

  	
   

  
	
  30 September 2010

  	
   

  	
  2.50 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  	
   

  
	
  31 December 2010

  	
   

  	
  2.50 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  	
   

  
	
  31 March 2011

  	
   

  	
  2.25 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  	
   

  



 


117

















 


	
  30 June 2011

  	
   

  	
  2.25 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  	
   

  
	
  30 September 2011

  	
   

  	
  2.00 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  	
   

  
	
  31 December 2011

  	
   

  	
  2.00 : 1

  	
   

  	
  4.50 :1

  	
   

  	
  1 : 1

  	
   

  



 


(e)                                  If
any Compliance Certificate delivered pursuant to Clause 22.5 (Compliance Certificates) demonstrates that
the ratio of Consolidated Net Debt to Consolidated Operating Cashflow in
respect of the relevant Quarter Date for which such Compliance Certificate was
delivered was 4.25:1 or lower, the covenants which are required to be tested
pursuant to paragraphs (a), (b) and (c) above shall thereafter, and for so long
as the ratio of Consolidated Net Debt to Consolidated Operating Cashflow as at
each subsequent Quarter Date remains at 4.25:1 or lower, be tested on each
alternative Quarter Date shown on the table in paragraph (d) above.  In the event that any Compliance Certificate
delivered pursuant to Clause 22.5 (Compliance
Certificates) demonstrates that the ratio of Consolidated Net Debt
to Consolidated Operating Cashflow in respect of any Quarter Date for which
such Compliance Certificate was delivered exceeds 4.25:1, the covenants which
are required to be tested pursuant to paragraphs (a), (b) and (c) above shall
thereafter, and for so long as the ratio of Consolidated Net Debt to
Consolidated Operating Cashflow as at each subsequent Quarter Date exceeds
4.25:1 be tested, in accordance with paragraphs (a), (b) and (c) above, on each
subsequent Quarter Date.


 


23.3                        Equity
Cure Right


 


(a)                                  Subject
to paragraph (b) below, if any Compliance Certificate delivered by the Company
demonstrated that the Bank Group is in breach of any of the financial covenants
set out in paragraphs (a), (b) or (c) of Clause 23.2 (Ratios) as at the relevant Quarter Date to
which such Compliance Certificate relates, then the Company may, at its option,
within 5 Business Days of delivery of such Compliance Certificate and without
prejudice to the rights of the Lenders under Clause 27 (Events of
Default) cure such breach (an “Equity
Cure Right”) by procuring that the proceeds of any New Equity be
contributed into the Bank Group and either:


 


(i)                                    applied
towards the prepayment of the Term Facilities; or


 


(ii)                                added
back to the calculation of Consolidated Operating Cashflow,


 


in each case, in an amount which, if such
test(s) were to be recalculated as at such Quarter Date but giving effect to
such application or add-back, such test(s) would have been satisfied.


 


(b)                                  The
Equity Cure Right shall be subject to the following conditions:


 


(i)                                    subject
to sub-paragraph (ii) below, such Equity Cure Right may not be used on more
than three occasions over the life of the Facilities;


 


(ii)                                in
the case of an add-back to the calculation of Consolidated Operating Cashflow,
such Equity Cure Right may only be used on one occasion over the life of the
Facilities, and in an amount not exceeding £100 million;


 


(iii)                            in
the case of an add-back to the calculation of Consolidated Operating Cashflow,
such add-back may not be rolled forward or otherwise taken into account on any
subsequent Quarter Date on which such financial covenants are to be tested; and


 


(iv)                               such
Equity Cure Right may not be used for any two consecutive Quarter Dates.


 


(c)                                  Any
proceeds of New Equity which are contributed into the Bank Group for the
purposes specified above, shall thereafter be retained within the Bank Group.


 


118

















 


23.4                        Currency
Calculations


 


Where
any financial information with reference to which any of the covenants in
Clause 23.2 (Ratios) are tested
states amounts in a currency other than Sterling such amounts shall, for the
purposes of testing such covenants be converted from such currency into
Sterling at the rate used in such financial information for the purpose of
converting such amounts from Sterling into the currency in which they are
stated in such financial information or where no such rate is stated in such
financial information at an appropriate rate selected by the Company, acting
reasonably.


 


23.5                        Pro
Forma Calculations


 


For
the purposes of testing compliance with the financial covenants set out in
Clause 23.2 (Ratios), the calculation of such
ratios shall be made on a pro forma basis giving effect to all material
acquisitions and disposals made by the Bank Group during the relevant period of
calculation based on historical financial results of the items being acquired
or disposed of.


 


24.                               POSITIVE
UNDERTAKINGS


 


24.1                        Application
of Advances


 


The
Parent shall each ensure that the proceeds of each Advance made under this
Agreement are applied exclusively for the applicable purposes specified in
Clause 2.3 (Purpose).


 


24.2                        Financial
Assistance and Fraudulent Conveyance


 


The
Parent and each Obligor shall (and the Company shall procure that each member
of the Bank Group shall) ensure that its execution of the Finance Documents to
which it is a party and the performance of its obligations thereunder does not
contravene any applicable local laws and regulations concerning fraudulent
conveyance, financial assistance by a company for the acquisition of or
subscription for its own shares or the shares of its parent or any other
company or concerning the protection of shareholders’ capital.


 


24.3                        Necessary
Authorisations


 


The
Parent and each Obligor shall (and the Company shall procure that each member
of the Bank Group shall):


 


(a)                                  obtain,
comply with and do all that is necessary to maintain in full force and effect
all Necessary Authorisations, except where a failure to do so could not
reasonably be expected to have a Material Adverse Effect; and


 


(b)                                  promptly
upon request of the Facility Agent, supply certified copies to the Facility
Agent of any such Necessary Authorisations so requested.


 


24.4                        Compliance
with Applicable Laws


 


The
Parent and each Obligor shall (and the Company shall procure that each member
of the Bank Group shall) comply with all applicable laws to which it is subject
in respect of the conduct of its business and the ownership of its assets
(including, without limitation, all Statutory Requirements), in each case,
where a failure so to comply could reasonably be expected to have a Material
Adverse Effect.


 


24.5                        Insurance


 


(a)                                  Each
Obligor shall (and the Company shall procure that each member of the Bank Group


 


119

















 


shall) effect
and maintain insurances on and in relation to its business and assets against
such risks and to such extent as is necessary or usual for prudent companies
carrying on a business such as that carried on by such Obligor or member of the
Bank Group with either a Captive Insurance Company or a reputable underwriter
or insurance company except to the extent disclosed in the Group’s public
disclosure documents or to the extent that the failure to so insure could not
reasonably be expected to have a Material Adverse Effect.


 


(b)                                  The
Company shall (upon the reasonable request of the Facility Agent) supply the
Facility Agent with copies of all such insurance policies or certificates of
insurance in respect thereof or (in the absence of the same) such other
evidence of the existence of such policies as may be reasonably acceptable to
the Facility Agent.


 


24.6                        Intellectual
Property


 


Each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall):


 


(a)                                  take
all necessary action to safeguard and maintain its rights, present and future,
in or relating to all Intellectual Property Rights owned, used or exploited by
it and which are material to the Group Business (including, without limitation,
paying all applicable renewal fees, licence fees and other outgoings) save
where a failure to do so could not reasonably be expected to have a Material
Adverse Effect; and


 


(b)                                  notify
the Facility Agent promptly of any infringement or suspected infringement or
any challenge to the validity of any of the present or future Intellectual
Property Rights owned, used or exploited by it and which are material to the
Group Business which may come to its notice and it will supply the Facility Agent
with all information in its possession relating thereto if the same could
reasonably be expected to have a Material Adverse Effect and take all necessary
steps (including, without limitation, the institution of legal proceedings) to
prevent third parties infringing such Intellectual Property Rights to the
extent that failure to do so could reasonably be expected to have a Material
Adverse Effect.


 


24.7                        Ranking
of Claims


 


Subject
to the Reservations, the Parent and each Obligor shall ensure that at all times
the claims of the Finance Parties against it under the Finance Documents to
which it is a party rank at least pari passu with
the claims of all its unsecured, unsubordinated creditors save those whose
claims are preferred by any bankruptcy, insolvency, liquidation or similar laws
of general application.


 


24.8                        Pay
Taxes


 


Each
Obligor shall procure and the Company shall procure that each member of the
Bank Group shall ensure that, at all times, there are no material claims or
liabilities which are asserted against it in respect of tax, save to the extent
the relevant Obligor or in the case of any other member of the Bank Group, the
Company (as the case may be) can demonstrate that the same are being contested
in good faith on the basis of appropriate professional advice and that proper
reserves have been established therefor to the extent required by applicable
generally accepted accounting principles.


 


24.9                        Hedging


 


The
Company shall (or shall procure that the Parent shall):


 


(a)                                  enter
into and maintain hedging arrangements with Hedge Counterparties, by way of
interest rate swap transaction, basis swap, forward rate transaction, interest
rate option, foreign exchange transaction, cap transaction, floor transaction,
collar transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any similar derivative


 


120

















 


transaction,
or any combination of the foregoing, for the purpose of limiting the Bank Group’s
exposure to adverse movements in interest rates or foreign exchange in relation
to the Facilities, the Bridge Facility (or the Alternative Bridge Facility, as
the case may be) and the New High Yield Notes (if applicable) as follows:


 


(i)                                    interest
rate hedging (or fixed rate debt, for which purposes, outstanding advances
under the Bridge Facility shall be deemed to constitute fixed rate debt prior
to the issuance of Exchange Notes or the issuance of the New High Yield Notes)
required to ensure that interest is payable at fixed rates on not less than 662/3%
of the combined aggregate principal amount outstanding as at the Merger Closing
Date, under the Facilities and the Bridge Facility (or the Alternative Bridge
Facility, as the case may be) (or, if applicable, the New High Yield Notes),
for a period of not less than 3 years from the Merger Closing Date (provided
that for this purpose the principal amount of any fixed rate Existing High
Yield Notes and any fixed rate New High Yield Notes shall be included in the
calculation of such minimum hedging requirement); and


 


(ii)                                currency
rate hedging in respect of 100% of the aggregate principal amount of the Facilities
which are denominated in euros or Dollars (if applicable) for a period of not
less than 3 years from the Merger Closing Date;


 


(iii)                            currency
rate hedging in respect of 100% of interest payable in euros and Dollars under
the Facilities (if applicable), for a period of not less than 3 years from the
Merger Closing Date;


 


(iv)                               currency
rate hedging in respect of 100% of the coupon payable in euros and Dollars
under the New High Yield Notes (if applicable), for a period up to the
applicable first call date in respect of such New High Yield Notes,


 


in each case within 6 months of the Merger
Closing Date other than:


 


(1)                                 in the case of the hedging arrangements required to be entered into
under sub-paragraph (a)(i) above, those hedging arrangements relating to the A1
Facility and the B1 Facility, which shall be required to be implemented within
6 months of the Baseball Effective Date; and


 


(2)                                 in the case of the hedging arrangements required to be entered into
under sub-paragraph (a)(iv) above, those hedging arrangements relating to the
New High Yield Notes, which shall be required to be implemented within 6 months
of the date of issuance of such New High Yield Notes:


 


(b)                                  within
6 months of the date of any High Yield Refinancing, enter into and maintain
hedging arrangements with Hedge Counterparties for the purpose of limiting the
Bank Group’s exposure to adverse movements in interest rates or foreign
exchange in relation to such High Yield Refinancing for the relevant remaining
period specified in the Existing NTL Senior Credit Facilities Agreement to the
extent that the Company would have been obliged to enter into hedging
arrangements in respect of such High Yield Refinancing thereunder (in the case
of a refinancing of Existing High Yield Notes) or for the relevant periods
specified in sub-paragraphs (a)(i) and (a)(iv) above (in the case of a
refinancing of New High Yield Notes);


 


(c)                                  ensure
that the hedging arrangements required pursuant to this Clause 24.9 are
Existing Hedging Agreements or are entered into in the form of Acceptable
Hedging Agreements; and


 


(d)                                  as
soon as reasonably practicable following request by the Facility Agent provide
the Facility Agent with certified true copies of each such Hedging Agreement
entered into,


 


121

















 


provided
that the Company shall not be in breach of this Clause 24.9 if the Company
fails to enter into the hedging arrangements required under paragraphs (a) and
(b) by the relevant times specified in paragraphs (a) and (b) if during the
time between the Original Execution Date and the date on which such hedging
arrangements are required to be implemented:


 


(i)                                    none of the Lenders or their Affiliates is willing to enter into
Hedging Agreements to effect the hedging arrangements required by paragraphs
(a) or (b), as the case may be; or


 


(ii)                                where a Lender or its Affiliate is willing to enter into such hedging
arrangements, the terms of such hedging arrangements are, in the reasonable
opinion of the Administrative Agent and the Mandated Lead Arrangers and having
regard to the creditworthiness of the Company and current market conditions,
considered to be unreasonable, or where in the opinion of the Administrative
Agent and the Mandated Lead Arrangers, acting reasonably, such hedging
arrangements would cause material adverse tax-related implications for any
member of the Group.


 


24.10                 Pension Plans


 


(a)                                  The
Company shall use reasonable endeavours to ensure that all pension plans
maintained and operated by it or any member of the Bank Group, generally for
the benefit of employees of any member of the Bank Group are maintained and
operated and have been valued by an actuary appointed by the Company in
accordance with all applicable laws from time to time and that the employer
contributions are assessed and paid in all material respects in accordance with
the governing provisions of such schemes and all laws applicable thereto, in
each case, save to the extent that any failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


Without
prejudice to the generality of Clause 24.10(a):


 


(b)                                  The
Company shall ensure that, except for the NTL Pension Plan, the NTL 1999
Pension Scheme, Cablevision Pension Scheme and Workplace Technology Pension
schemes (the “UK DB Schemes”),
each UK Pension Scheme is, or has at any time been, a money purchase scheme as
defined in s181 of the Pension Schemes Act 1993) and no member of the Group is,
for the purposes of either s38 or s43 of the Pensions Act 2004, connected with
or an associate of any employer of an occupational pension scheme which is not
a money purchase scheme.


 


(c)                                  Each
Participating Employer shall ensure that, in relation to each UK Pension
Scheme, no circumstance or event occurs and no action or omission is taken
which has or is reasonably likely to have a Material Adverse Effect (including,
without limitation, any Participating Employer ceasing to employ any member of
such a pension scheme or, in the case of any UK DB Scheme, the issue of a
Financial Support Direction or Contribution Notice to any member of the Group).


 


(d)                                  The
Company shall promptly notify the Facility Agent of any change in the rate of
contributions to any UK DB Schemes, paid or recommended to be paid (whether by
the scheme actuary or otherwise) or required by law or otherwise which might
reasonably be expected to have a Material Adverse Effect.


 


(e)                                  Each
Obligor shall immediately notify the Facility Agent of any investigation or
proposed investigation by the Pensions Regulator which it has been informed may
lead to the issue of a Financial Support Direction or a Contribution Notice to
it or any member of the Bank Group.


 


(f)                                    Each
Obligor shall immediately notify the Facility Agent if it receives a Financial
Support Direction or a Contribution Notice from the Pensions Regulator.


 


122

















 


24.11                 Environmental
Matters


 


(a)                                  Each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall):


 


(i)                                    comply
with all Environmental Laws to which it is subject;


 


(ii)                                obtain
all Environmental Licences required or desirable in connection with the
business it carries on; and


 


(iii)                            comply
with the terms of all such Environmental Licences,


 


in each case where failure to do so could
reasonably be expected to have a Material Adverse Effect.


 


(b)                                  Each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall) promptly notify the Facility Agent of any Environmental Claim (to the
best of such Obligor’s or member of the Bank Group’s knowledge and belief)
pending or threatened against it which, if substantiated, could reasonably be
expected to have a Material Adverse Effect.


 


(c)                                  No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) permit or allow to occur any discharge, release, leak, migration or
other escape of any Hazardous Substance into the Environment on, under or from
any property owned, leased, occupied or controlled by it, where such discharge,
release, leak, migration or escape could reasonably be expected to have a
Material Adverse Effect.


 


24.12                 Further Assurance


 


(a)                                  The
Parent and each Obligor shall (and the Company shall procure that each member
of the Bank Group shall) at its own expense, promptly take all such reasonable
action as the Facility Agent or the Security Trustee may require for the
purpose of complying with the provisions of paragraph (b) and for the
registration or filing of any Security Documents delivered pursuant thereto
with all appropriate authorities to the extent necessary for the purposes of
perfecting the Security created thereunder.


 


(b)                                  The
Company shall:


 


(i)                                    subject
to the proviso below and except as otherwise provided in this Clause 24.12,
procure that the 80% Security Test is satisfied, at the end of each financial
year during the term of the Facilities where such percentage is calculated by
reference to the annual financial information relating to the Bank Group most
recently delivered pursuant to Clause 22.1 (Financial
Statements) and certified in the relevant Compliance Certificate
accompanying the same;


 


(ii)                                procure
that in relation to any member of the Bank Group which becomes a Borrower for
the purposes of this Agreement, the immediate Holding Company of such Borrower
shall also become a Guarantor hereunder; and


 


(iii)                            procure
that each Obligor which is or becomes a party to this Agreement in such
capacity under sub-paragraph (i) above shall have delivered to the Security
Trustee, one or more Security Documents granting security over all or
substantially all of its assets other than any shares in, receivables owed by
or any other interest in any Bank Group Excluded Subsidiary, Project Company or
Joint Venture or any other asset which is of a type excluded from existing
corresponding Security Documents, or


 


123

















 


which the
Security Trustee agrees may be excluded from the Security granted under the
Security Documents (provided that the Security Trustee shall not agree to
exclude any asset of an Obligor from the Security where the net book value of
such asset exceeds £10 million (or its equivalent in other currencies) without
the prior consent of an Instructing Group (not to be unreasonably withheld or
delayed)).


 


(c)                                  A
breach of sub-paragraph (b) shall not constitute a Default if:


 


(i)                                    one
or more members of the Bank Group become Obligors in accordance with
Clause 26.1 (Acceding Borrowers)
and Clause 26.2 (Acceding Guarantors) within 5 Business Days of the delivery of a Compliance
Certificate by the Borrower demonstrating that the 80% Security Test is not
satisfied; and


 


(ii)                                the
Facility Agent (acting reasonably) is satisfied that the 80% Security Test
would have been satisfied on the relevant Quarter Date if such Compliance
Certificate had been prepared on the basis that such members of the Bank Group
had been Obligors as at that Quarter Date.


 


(d)                                  In
relation to any provision of this Agreement which requires the Obligors or any
member of the Bank Group to deliver a Security Document for the purposes of
granting any guarantee or Security for the benefit of the Finance Parties, the
Security Trustee agrees to execute as soon as reasonably practicable, any such
guarantee or Security Document which is presented to it for execution.


 


(e)                                  At
any time after an Event of Default has occurred and whilst such Event of
Default is continuing, each Obligor shall, at its own expense, take any and all
action as the Security Trustee may deem necessary for the purposes of
perfecting or otherwise protecting the Lenders’ interests in the Security
constituted by the Security Documents.


 


24.13                 Centre of Main
Interests


 


No
Obligor incorporated or otherwise existing under the laws of England &
Wales shall (and the Company shall procure that no other member of the Bank
Group incorporated or otherwise existing under the laws of England & Wales
shall), without the prior written consent of an Instructing Group, cause or
allow its Centre of Main Interests to change to a country other than England.


 


24.14                 Group Structure
Chart


 


If
there is a material change or inaccuracy in the corporate structure of the Bank
Group or any Holding Companies of the Company from that set out in the Group
Structure Chart most recently delivered to the Facility Agent, including upon
consummation of the Merger, the Company shall deliver or procure that there is
delivered to the Facility Agent, as soon as practicable upon becoming
available, an updated Group Structure Chart containing information sufficient
to evidence the matters set out in paragraphs (a) to (d) of Clause 21.19 (Structure) and showing such material change or correcting
such inaccuracy.


 


24.15                 Contributions to
the Bank Group


 


The
Company shall procure that any monies which are at any time contributed by any
member of the Group to any member of the Bank Group shall be contributed by way
of Subordinated Funding, by way of an investment through capital contribution
or a subscription or issuance of securities or convertible unsecured loan stock
in the relevant member of the Bank Group.


 


124

















 


24.16                 “Know your client”
checks


 


(a)                                  Each
Obligor shall promptly upon the request of the Facility Agent or any Lender and
each Lender shall promptly upon the request of the Facility Agent supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Facility Agent (for itself or on behalf of any Lender) or any
Lender (for itself or on behalf of any prospective Transferee in order for the
Facility Agent, such Lender or any prospective Transferee to carry out and be
satisfied with the results of all necessary “know your client” or other
applicable anti-money laundering checks in relation to the identity of any
person that it is required to carry out in relation to the transactions
contemplated in the Finance Documents.


 


(b)                                  The
Company shall, by not less than 3 Business Days written notice to the Facility
Agent, notify the Facility Agent (which shall promptly notify the Lenders) of
its intention to request that one of its wholly-owned Subsidiaries becomes an
Acceding Obligor pursuant to Clause 26 (Acceding
Group Companies) (provided that no such notice shall be required to
be given in respect of any Obligor where any such person is required or intends
to accede to this Agreement pursuant to Clause 3.4 (Baseball Conditions Subsequent).


 


(c)                                  Following
the giving of any notice pursuant to paragraph (b) above, the Company shall
promptly upon the request of the Facility Agent or any Lender supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Facility Agent (for itself or on behalf of any Lender) or any
Lender (for itself or on behalf of any prospective Transferee to carry out and
be satisfied with the results of all necessary “know your client” or other
applicable anti-money laundering checks in relation to the identity of any
person that it is required to carry out in relation to the accession of such
Acceding Borrower or Acceding Guarantor to this Agreement.


 


24.17                 Change in
Auditors


 


The
Obligors shall ensure that its auditors are (and in the case of the Company,
the Bank Group’s auditors are) any one
of the Permitted Auditors provided that in the event of any change in such
auditors (other than in connection with the Merger), the relevant Obligor (or
the Company, in the case of any change to the Bank Group’s auditors) shall
promptly notify the Facility Agent of such change.


 


24.18                 Syndication


 


(a)                                  Each
of the Obligors shall (and the Company shall procure that each member of the
Bank Group shall) co-operate with and assist the Mandated Lead Arrangers in
connection with the primary syndication of the Facilities in a manner
consistent with normal market practice including (but not limited to) by:


 


(i)                                    providing
such financial and other information relating to the Group as the Mandated Lead
Arrangers, acting reasonably, may deem necessary to achieve Successful
Syndication provided that no such information shall be required to be so
provided to the extent that the same would require a filing to be made by any
Obligor with the SEC as a result thereof;


 


(ii)                                in
line with normal market practice, assisting the Mandated Lead Arrangers in the
preparation of any supplemental materials to the Information Memoranda;


 


(iii)                            allow
attendance by senior management of the Ultimate Parent and the Company at one
or more bank presentations or meeting with potential lenders at such times and
places as the Mandated Lead Arrangers may agree with the Ultimate Parent and
the Company; and


 


125

















 


(iv)                               use
reasonable efforts to ensure that the syndication efforts benefit from the
Group’s existing lending relationships,


 


provided that no Obligor shall be required to
provide any information where, having regard to the relevance of that
information to the achievement of Successful Syndication, it would be unreasonable
to do so.


 


(b)                                  Without
prejudice to the provisions of paragraph (a), no Obligor shall be required to
take any action or to deliver any information that would conflict with any
applicable Law to which it is bound or other applicable regulation including
the Takeover Code, US Federal securities laws, the laws of Delaware, or to
provide any disclosures that would require a filing with the U.S. Securities
and Exchange Commission, or cause it or any of its Subsidiaries to breach any
applicable confidentiality undertaking to which it is bound or which might
prejudice its entitlement to or retention of legal privilege in any
document.  In the event that the Mandated
Lead Arrangers request any information to be disclosed or action to be taken
which is subject to a confidentiality undertaking, the Parent or the relevant
Obligor as the case may be, shall use its reasonable endeavours to obtain the
consent of the relevant beneficiary of such confidentiality undertaking to such
action in order to allow such disclosure or action to be taken.


 


24.19                 Assets


 


Each
Obligor shall (and the Company shall procure that each member of the Bank Group
shall) maintain and preserve all of its assets that are necessary in the
conduct of its business as it is conducted from time to time, in good working
order and condition subject to ordinary wear and tear where any failure to do
so could be reasonably expected to have a Material Adverse Effect.


 


24.20                 ERISA


 


(a)                                  As
soon as possible and, in any event, within 20 days after a Borrower or any
Obligor knows or has reason to know of the occurrence of any of the events
specified in paragraph (b) of this Clause 24.20, such Borrower or such Obligor
will deliver to the Facility Agent in sufficient copies for each Lender a
certificate of the chief financial officer of such Borrower or such Obligor
setting out full details as to such occurrence and the action, if any, that the
relevant member of the Group or ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given or filed by
such member of the Group, the Plan administrator or such ERISA Affiliate to or
with any government agency, or a Plan participant and any notices received by
such member of the Group or ERISA Affiliate from any government agency, or a
Plan participant with respect to it.


 


(b)                                  The
events referred to in paragraph (a) of this Clause 24.20 are:


 


(i)                                    any
contribution required to be made with respect to a Plan or Foreign Pension Plan
is not made before or within 30 days following the time limit therefor;


 


(ii)                                any
member of the Group or any ERISA Affiliate incurs or is reasonably expected to
incur any material liability with respect to a Plan under section 4975 or 4980
of the Code or section 409, 502(i) or 502(l) of ERISA or with respect to a
group health plan (as defined in section 607(1) of ERISA or section 4980B(g)(2)
of the Code) maintained by a Borrower or any member of the Group under section
4980B of the Code; and


 


(iii)                            any
member of the Group incurs or reasonably expects to incur any material
liability pursuant to any employee welfare benefit plan (as defined in section
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as


 


126

















 


required by
section 601 of ERISA).


 


(c)                                  Subject
to all applicable data protection laws, the Ultimate Parent shall procure that
each member of the Group will deliver to the Facility Agent in sufficient
copies for each of the Lenders:


 


(i)                                    a
complete copy of the annual report (on Internal Revenue Service Form
5500-series (including, to the extent required, the related financial and
actuarial statements and opinions and other supporting statements,
certifications, schedules and information)) of each Plan required to be filed
with the Internal Revenue Service and/or the Department of Labor;


 


(ii)                                copies
of annual reports and any records, documents or other information required to
be furnished by such member of the Group or any ERISA Affiliate with respect to
any Plan to any government agency; and


 


(iii)                            any
material notices received by a member of the Group or any ERISA Affiliate with
respect to any Plan or Foreign Pension Plan, in the case of each of (i), (ii),
and (iii), no later than 30 days (or 10 days in the case of this paragraph
(iii)) after the date such annual report has been filed with the Internal
Revenue Service and/or the Department of Labor or such records, documents
and/or information has been furnished to any other government agency or such
notice has been received by such member of the Group or ERISA Affiliate, as
applicable.


 


(iv)                               The
Ultimate Parent shall procure that each member of the Group shall ensure that
all Foreign Pension Plans administered by them or into which they make
payments, obtain or retain (as applicable) registered status under and as
required by applicable law and are administered in a timely manner in all
respects in compliance with all applicable laws, in the case of each of the
foregoing, except where the failure to do any of the foregoing will not have a
Material Adverse Effect.


 


24.21                 Steps Paper


 


The
Ultimate Parent shall (and it shall procure that each member of the Group
shall, as applicable) implement each of the steps required for the consummation
of the Merger and reorganisation of the Group in accordance with the Steps
Paper and in particular, without limitation to the foregoing provision:


 


(a)                                  on
the Merger Closing Date, to implement each of Steps 1 and 2 set out in the page
headed “Combination of NTL and Telewest” of the
Steps Paper culminating in the structure set out on the page headed “Interim Structure After Step 2;


 


(b)                                  to
implement each of the Steps 3 to 10 set out on the pages headed “Post-Combination Restructuring - Second Alternative (Structure 2)”
of the Steps Paper, culminating in the structure set out on the page headed “Second Alternative (Structure 2) — Final Structure”, such
that all of those steps are completed on the Structuring Date;


 


(c)                                  if
the Baseball Effective Date occurs prior to the Structuring Date (and Step V1
and V2 described below can be implemented prior to the Structuring Date), to
implement each of the Steps V1 and V2 on the page headed “Acquisition
of Virgin Mobile Pre-Restructuring”, culminating in the structure
set out on the page headed “After Virgin Mobile
Pre-Restructuring”, such that both of those steps are completed on
the same Business Day, on a date falling not more than 15 days after the
Baseball Effective Date; and


 


127

















 


(d)                                  if
the Baseball Effective Date occurs after the Structuring Date (or Steps V1 and
V2 referred to above cannot be implemented before the Structuring Date) and the
provisions of paragraph (b) above have been implemented, to implement each of
the Steps 0a and 0b on the page headed “Structure 2  Virgin Mobile Acquisition”, culminating in the structure set
out on the page headed “Structure 2 Post-Virgin Mobile Acquisition”, such that both of those steps
are completed on the same Business Day, on a date falling not more than 15 days
after the Baseball Effective Date,


 


in each case, with such amendments, variations or
modifications as the Ultimate Parent shall deem necessary, provided that no
such amendment, variation or modification could reasonably be expected to be
materially adverse to the interests of the Lenders.


 


24.22                 Baseball Scheme
Undertakings


 


Other
than with the consent of a Baseball Instructing Group, acting reasonably (which
consent shall be deemed to have been given if not given or refused within 48
hours of request) Baseball Cash Bidco shall comply and the Company shall
procure that Baseball Stock Bidco shall comply, with each of the following
covenants:


 


(a)                                  it
shall ensure that the Baseball Scheme Circular is on substantially the terms
set out in the Baseball Press Release, other than with respect to any
amendments which could not reasonably be expected to be materially prejudicial
to the interests of the Lenders;


 


(b)                                  it
shall not make any amendments to the Baseball Implementation Agreement, other
than with respect to any amendments which could not reasonably be expected to
be materially prejudicial to the interests of the Lenders;


 


(c)                                  it
shall ensure that the Baseball Scheme Circular is posted within 28 days of
issuance of the Baseball Press Release, or if later, as soon as practicable
after the date on which the Court convenes a meeting of the shareholders of Baseball to consider the Baseball Scheme;


 


(d)                                  it
shall comply with all applicable laws and regulations (including, without
limitation, the Act, the Financial Services and Markets Act 2000, the Takeover
Code (subject to any applicable waivers by the Takeover Panel) and the Listing
Rules of the Financial Services Authority (as applicable);


 


(e)                                  it
shall keep the Facility Agent informed of the material developments of the
Baseball Scheme and the Baseball
Acquisition and notify the Facility Agent of any circumstances which may lead
to withdrawal of the Baseball Scheme or the Baseball
Acquisition;


 


(f)                                    it
shall provide the Facility Agent with any material updated financial
information on the Baseball Group,
and such other information relevant to the Baseball Scheme and the Baseball Acquisition as the Facility Agent
may reasonably request (including without limitation, copies of any press or
public announcements and any material documents or statements issued by the
Takeover Panel or any regulatory authority in connection with the Baseball
Scheme or the Baseball Acquisition);


 


(g)                                 it
shall not increase the cash price per share under the cash only option at which
the Baseball Acquisition is being made;


 


(h)                                 it
shall not waive or amend any condition to the Baseball Scheme as set out in the
Baseball Scheme Documents, except in any case where such amendment or waiver:


 


(i)                                    could
not reasonably be expected to be materially prejudicial to the interests of the
Lenders; or


 


128

















 


(ii)                                is
required by the Takeover Panel, the Takeover Code, the rules or requirements of
any stock exchange with jurisdiction over Baseball Cash Bidco or any other
applicable law or regulation;


 


(i)                                    it
shall not make any public statements relating to the financing of the Baseball Acquisition unless required to do
so by the Takeover Code or Takeover Panel, any applicable stock exchange with
jurisdiction over Baseball Cash Bidco or any applicable governmental or other
regulatory authority;


 


(j)                                    it
shall ensure that neither of the Baseball Bidcos, nor (using all reasonable
endeavours) any person Acting in Concert (as defined in the Takeover Code) with
them, shall be obliged to make an offer to shareholders of Baseball under Rule 9 of the Takeover
Code;  and


 


(k)                                it
shall procure that as soon as reasonably practicable, after the Baseball
Effective Date, Baseball is delisted
and re-registered as a private company.


 


25.                               NEGATIVE
UNDERTAKINGS


 


25.1                        Content
Transaction


 


(a)                                  Notwithstanding
any other provisions of this Agreement, no Content Transaction shall be
restricted by (nor deemed to constitute a utilization of any of the permitted
exceptions to) any provision of this Agreement, neither shall the
implementation of any Content Transaction constitute a breach of any provision
of any Finance Document, provided that:


 


(i)                                    the
cash proceeds of any Content Transaction are applied in accordance with
Clause 12 (Mandatory Prepayment and Cancellation);


 


(ii)                                after
giving pro forma effect for such Content Transaction, the Group and the Bank
Group continue to be in compliance with Clause 23.2 (Ratios);
and


 


(iii)                            at
the time of completion of such Content Transaction, no Event of Default has
occurred and is continuing and no Event of Default would occur as a result of
such Content Transaction.


 


(b)                                  Any
Joint Venture established pursuant to a Content Transaction shall thereafter
not be subject to any restrictions under this Agreement.


 


25.2                        Negative
Pledge


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group, create or
permit to subsist any Encumbrance over all or any of its present or future revenues
or assets other than an Encumbrance:


 


(a)                                  which
is an Existing Encumbrance set out in:


 


(i)                                    Part
1A of Schedule 10 (Existing Encumbrances)
provided that such Encumbrance is released within 10 Business Days of the
Merger Closing Date; or


 


(ii)                                Part
1B of Schedule 10 (Existing Encumbrances)
provided that the principal amount secured thereby may not be increased unless
any Encumbrance in respect of such increased amount would be permitted under
another paragraph of this Clause 25.2;


 


(b)                                  which
arises by operation of Law or by a contract having a similar effect or under an
escrow arrangement required by a trading counterparty of any member of the Bank
Group and in each


 


129

















 


case arising
or entered into the ordinary course of business of the relevant member of the
Bank Group;


 


(c)                                  which
is created pursuant to any of the Finance Documents (including, for the
purposes of securing any Alternative Baseball Financing) and any Bridge Finance
Documents;


 


(d)                                  arising
from any Finance Leases, sale and leaseback arrangements or Vendor Financing
Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);


 


(e)                                  which
arises in respect of any right of set-off, netting arrangement, title transfer
or title retention arrangements which:


 


(i)                                    arises
in the ordinary course of trading and/or by operation of Law;


 


(ii)                                is
entered into by any member of the Bank Group in the normal course of its
banking arrangements for the purpose of netting debit and credit balances on
bank accounts of members of the Bank Group operated on a net balance basis;


 


(iii)                            arises
in respect of netting or set off arrangements contained in any Hedging
Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);


 


(iv)                               is
entered into by any member of the Bank Group on terms which are generally no
worse than the counterparty’s standard or usual terms and entered into in the
ordinary course of business of the relevant member of the Bank Group; or


 


(v)                                   which
is a retention of title arrangement with respect to customer premises equipment
in favour of a supplier (or its Affiliate); provided that the title is only
retained to individual items of customer premises equipment in respect of which
the purchase price has not been paid in full;


 


(f)                                    which
arises in respect of any judgment, award or order or any tax liability for
which an appeal or proceedings for review are being diligently pursued in good
faith, provided that the affected member of the Bank Group shall have or will
establish such reserves as may be required under applicable generally accepted
accounting principles in respect of such judgment, award, order or tax
liability;


 


(g)                                 over
or affecting any asset acquired by a member of the Bank Group after the
Original Execution Date and subject to which such asset is acquired, if:


 


(i)                                    such
Encumbrance was not created in contemplation of the acquisition of such asset
by a member of the Bank Group; and


 


(ii)                                the
Financial Indebtedness secured thereby is Financial Indebtedness of, or is
assumed by, the relevant acquiring member of the Bank Group, is Financial
Indebtedness which at all times falls within paragraph (g) or (k) of Clause
25.4 (Financial Indebtedness) and the amount
of Financial Indebtedness so secured is not increased at any time;


 


(h)                                 over
or affecting any asset of any company which becomes a member of the Bank Group
after the Original Execution Date, where such Encumbrance is created prior to
the date on which such company becomes a member of the Bank Group, if:


 


(i)                                    such
Encumbrance was not created in contemplation of the acquisition of such
company; and


 


130

















 


(ii)                                to
the extent not repaid by close of business on the date upon which such company
became a member of the Bank Group, the Financial Indebtedness secured by such
Encumbrance at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness);


 


(i)                                    constituted
by a rent deposit deed entered into on arm’s length commercial terms and in the
ordinary course of business securing the obligations of a member of the Bank
Group in relation to property leased to a member of the Bank Group;


 


(j)                                    constituted
by an arrangement referred to in paragraph (d) of the definition of Financial
Indebtedness;


 


(k)                                which
is granted over the shares of, Indebtedness owed by or other interests held in,
or over the assets (including, without limitation, present or future revenues),
attributable to a Project Company, a Bank Group Excluded Subsidiary or a
Permitted Joint Venture;


 


(l)                                    over
cash deposited as security for the obligations of a member of the Bank Group in
respect of a performance bond, guarantee, standby letter of credit or similar
facility entered into in the ordinary course of business of the Bank Group;


 


(m)                              which
is created by any member of the Bank Group in substitution for any Existing
Encumbrance referred to in paragraph (a)(ii) above of this Clause 25.2,
provided that the principal amount secured thereby may not be increased unless
any Encumbrance in respect of such increased amount would be permitted under
another paragraph of this Clause 25.2;


 


(n)                                 securing
the Existing Baseball Facilities, provided that such Encumbrance is released
within 10 Business Days of the Baseball Effective Date; or


 


(o)                                  securing
Financial Indebtedness the principal amount of which (when aggregated with the
principal amount of any other Financial Indebtedness which has the benefit of
an Encumbrance other than as permitted pursuant to paragraphs (a) to (n) above)
does not exceed £300 million (or its equivalent in other currencies):


 


(i)                                    of
which up to £250 million (or its equivalent in other currencies) may be secured
on assets not subject to the Security; and


 


(ii)                                which
may be secured on a second ranking basis over assets subject to the Security,
provided that such second ranking security shall be granted on terms where the
rights of the relevant mortgagee, chargee or other beneficiary of such security
in respect of any payment will be subordinated to the rights of the Finance
Parties under the HYD Intercreditor Agreement or any other intercreditor
arrangement which is either:


 


(A)                               on terms satisfactory to the Facility Agent (acting on the
instructions of an Instructing Group); or


 


(B)                             on terms comparable to the Existing Telewest Second Lien Credit
Facility Agreement and related intercreditor agreement,


 


provided that in either case, each of the
Finance Parties agrees to execute such intercreditor agreement as soon as
practicable following request from the Company.


 


131

















 


25.3                        Loans
and Guarantees


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group, grant any
loan or credit or give any guarantee in any such case in respect of Financial
Indebtedness, other than:


 


(a)                                  any
extension of trade credit or guarantees, bonds or indemnities granted in the
ordinary course of business on usual and customary terms;


 


(b)                                  any
credit given by a member of the Bank Group to another member of the Bank Group
which arises by reason of cash-pooling, set-off or other cash management
arrangement of the Bank Group;


 


(c)                                  the
Existing Loans provided that the aggregate principal amount outstanding thereunder
may not be increased from that existing at the Original Execution Date in
reliance on this paragraph (c) (except with respect to accrual or
capitalisation of interest);


 


(d)                                  any
loans or credit granted:


 


(i)                                    by a
member of the Bank Group which is not an Obligor to an Obligor by way of
Subordinated Funding;


 


(ii)                                by
one Obligor to another Obligor;


 


(iii)                            by a
member of the Bank Group which is not an Obligor to any other member of the
Bank Group which is not an Obligor; or


 


(iv)                               by a
member of the Bank Group to the relevant member of the Group for the purposes
of funding drawings available under the undrawn portion of any Existing UKTV
Group Loan Stock of up to £50 million in aggregate;


 


(v)                                   in
accordance with Clause 25.9 (Joint Ventures);


 


(vi)                               by the
US Borrower pursuant to the Notes;


 


(e)                                  any
loans made by any member of the Bank Group to its employees either:


 


(i)                                    in
the ordinary course of its employees’ employment; or


 


(ii)                                to
fund the exercise of share options or the purchase of capital stock by its
employees, directors, officers or consultants of the Group,


 


provided that the aggregate principal amount
of all such loans shall not at any time exceed £10 million (or its equivalent
in other currencies);


 


(f)                                    any
loan made by a member of the Bank Group pursuant to either an Asset Passthrough
or a Funding Passthrough;


 


(g)                                 any
loan made by a member of the Bank Group to a member of the Group, where the
proceeds of such loan are, or are to be (whether directly or indirectly) used:


 


(i)                                    to
make payments to the High Yield Trustee in respect of High Yield Trustee
Amounts (as such terms are defined in the HYD Intercreditor Agreement) in
respect of the Existing High Yield Notes;


 


(ii)                                to
make payments to the High Yield Trustee in respect of High Yield Trustee


 


132

















 


Amounts (as
such terms are defined in the HYD Intercreditor Agreement) in respect of the
New High Yield Notes;


 


(iii)                            to
make equivalent payments to those specified in paragraphs (i) and (ii)
above in respect of any High Yield Refinancings;


 


(iv)                               provided
that no Event of Default has occurred and is continuing or is likely to occur
as a result thereof to fund Permitted Payments; or


 


(v)                                   at
any time after the occurrence of an Event of Default, to fund Permitted
Payments to the extent not prohibited by the HYD Intercreditor Agreement, the
Group Intercreditor Agreement or any other applicable intercreditor agreement;


 


(h)                                 credit
granted by any member of the Bank Group to a member of the Group, where the Indebtedness
outstanding thereunder relates to Intra-Group Services provided that where such credit relates to
services falling within sub-paragraphs (c)(i) and (c)(iii) of the definition of
Intra-Group Services the settlement of any such credit estimated by the
Borrower to be owed by members of the Group which are not Obligors shall take
place no later than the first Business Day falling 60 days after the end of
each Financial Quarter provided that any such settlement may occur by way of
set-off and further provided that any overpayment or underpayment arising as a
result of the settlement of all such credit may be returned to the overpaying
party or paid by the underpaying party (and any credit or Financial
Indebtedness arising as a result of such overpayment or underpayment pending
repayment to the overpaying party or payment by the underpaying party is hereby
permitted);


 


(i)                                    any
guarantee given in respect of membership interests in any company limited by
guarantee where the acquisition of such membership interest is permitted under
Clause 25.13 (Acquisitions and
Investments);


 


(j)                                    any
guarantee given by a member of the Bank Group in respect of or constituted by
any Financial Indebtedness permitted under Clause 25.4 (Financial
Indebtedness) or Clause 25.10 Transactions with
Affiliates) or other obligation not restricted by the terms of the
Finance Documents, of another member of the Bank Group;


 


(k)                                any
guarantees arising under the Finance Documents (including any guarantees given
in respect of an Alternative Baseball Financing) and any guarantee arising
under the Bridge Finance Documents;


 


(l)                                    any
customary title guarantee given in connection with the assignment of leases
where such assignment is permitted under Clause 25.6 (Disposals);


 


(m)                              any
guarantees or similar undertakings granted by any member of the Bank Group in
favour of the Inland Revenue in respect of any obligations of NTL (UK) Group,
Inc. in respect of UK tax in order to facilitate the winding up of NTL (UK)
Group, Inc. provided that the Facility Agent shall have first received
confirmation from the Company that based on discussions with the Inland Revenue
and the Company’s reasonable assumptions, the Company does not believe that the
liability under such guarantee will exceed £15 million (such confirmation to be
supported by a letter from the Company’s auditors for the time being,
confirming that based on the Company’s calculations of such tax liability the
Company’s confirmation is a reasonable assessment of such tax liability);


 


(n)                                 any
loan granted as a result of a Subscriber being allowed terms, in the ordinary
course of trade, whereby it does not have to pay for the services provided to
it for a period after the provision of such services;


 


133

















 


(o)                                  any
loans or guarantees expressly contemplated under the Steps Paper;


 


(p)                                  a
loan made or a credit granted to a Joint Venture to the extent permitted under
paragraph (d) of Clause 25.9 (Joint Ventures);


 


(q)                                  any
loans made under the terms of the Screenshop Intra-Group Loan Agreement;


 


(r)                                  the
BBC Guarantees; and


 


(s)                                  loans
made, credit granted or guarantees given by any member of the Bank Group not
falling within paragraphs (a) to (r) above, in an aggregate amount not
exceeding £75 million (or its equivalent in other currencies).


 


25.4                        Financial
Indebtedness


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group incur, create
or permit to subsist or have outstanding any Financial Indebtedness or enter
into any agreement or arrangement whereby it is entitled to incur, create or
permit to subsist any Financial Indebtedness other than in either case:


 


(a)                                  Financial
Indebtedness arising under or pursuant to the Finance Documents (including in
respect of any outstanding Documentary Credit and arising in respect of any
Alternative Baseball Financing) and under or pursuant to the Bridge Finance
Documents;


 


(b)                                  Existing
Financial Indebtedness provided that the Existing Credit Facilities shall be
repaid in full immediately upon the making of the first Advance under this
Agreement;


 


(c)                                  Financial
Indebtedness arising in respect of the Existing High Yield Notes, the New High
Yield Notes or any High Yield Refinancing and any guarantee given by any member
of the Bank Group thereunder provided that such guarantee is given on a
subordinated unsecured basis and is subject to the terms of the HYD
Intercreditor Agreement or given on subordination terms consistent with those
contained in the HYD Intercreditor Agreement;


 


(d)                                  Financial
Indebtedness of any member of the Bank Group falling within, and permitted by
Clause 25.3 (Loans and Guarantees);


 


(e)                                  Financial
Indebtedness arising under any Hedging Agreements permitted under Clause 25.12
(Limitations on Hedging);


 


(f)                                    Financial
Indebtedness arising in relation to either an Asset Passthrough or a Funding
Passthrough;


 


(g)                                 Financial
Indebtedness of any company which became or becomes a member of the Bank Group
after the Original Execution Date, where such Financial Indebtedness arose
prior to the date on which such company became or becomes a member of the Bank
Group; if:


 


(i)                                    such
Financial Indebtedness was not created in contemplation of the acquisition of
such company;


 


(ii)                                the
aggregate principal amount of all of the Financial Indebtedness assumed in
reliance on this paragraph (g) either (1) does not exceed £75 million (or its
equivalent in other currencies) outstanding at any time or (2) to the extent
such Financial Indebtedness does exceed £75 million, an amount equal to such
excess is repaid promptly thereafter;


 


134

















 


(h)                                 Financial
Indebtedness arising in respect of any guarantee given by the Company or TCN or
any other member of the Bank Group in respect of the relevant borrower’s
obligations under any Parent Debt (“Guaranteed
Parent Debt”), provided that:


 


(i)                                    the proceeds of such Guaranteed Parent
Debt are contributed into the Bank
Group in accordance with Clause 24.15 (Contributions to the Bank
Group) and applied towards the Group Business or in a business whose
primary operations are directly related to the Group Business; and


 


(ii)                                any
such guarantee is given on a subordinated unsecured basis and is subject to the
terms of the HYD Intercreditor Agreement, the Group Intercreditor Agreement or
any other applicable intercreditor agreement in form satisfactory to an
Instructing Group;


 


(i)                                    Financial
Indebtedness which is expressly contemplated by the Steps Paper;


 


(j)                                    Financial
Indebtedness which constitutes Subordinated Funding provided that each Obligor
that is a debtor in respect of Subordinated Funding shall (and the Borrower
shall procure that each member of the Bank Group that is a debtor in respect of
Subordinated Funding shall) procure that the relevant creditor of such
Subordinated Funding, to the extent not already a party at the relevant time,
accedes to the Group Intercreditor Agreement or the HYD Intercreditor
Agreement, as appropriate, in such capacity, upon the granting of such
Subordinated Funding;


 


(k)                                Financial
Indebtedness arising under (i) Finance Leases or (ii) Vendor Financing
Arrangements, to the extent that such Finance Leases and/or Vendor Financing
Arrangements (x) comprise Existing Vendor Financing Arrangements or any
refinancing or rollover thereof,   or (y)
comprise Finance Leases and/or Vendor Financing Arrangements entered into after
the Merger Closing Date, provided that in the case of clause (x) and (y) the
aggregate principal amount thereof does not at any time exceed £150 million
plus the principal amount of such Finance Leases and Vendor Financing
Arrangements outstanding on the Merger Closing Date; and provided further that,
in each case, the relevant lessor or provider of Vendor Financing Arrangements
does not have the benefit of any Encumbrance other than over the assets the
subject of such Vendor Financing Arrangements and/or Finance Leases;


 


(l)                                    Financial
Indebtedness relating to deferral of PAYE taxes with the agreement of the
Inland Revenue by any member of the Bank Group;


 


(m)                              Financial
Indebtedness arising in respect of Existing Performance Bonds or any
performance bond, guarantee, standby letter of credit or similar facility
entered into by any member of the Bank Group to the extent that cash is deposited
as security for the obligations of such member of the Bank Group thereunder;


 


(n)                                 Financial
Indebtedness not falling within paragraphs (a) to (m) of any members of the
Bank Group provided that the
aggregate amount of such Financial Indebtedness outstanding at any time when
taken together with the aggregate outstanding amount in respect of Finance
Leases and Vendor Financing Agreements entered into after the Merger Closing
Date, does not exceed £300 million (or its equivalent in other currencies) (less
any portion of the basket utilised under paragraph (k) above) and further
provided that in the case of any Financial Indebtedness constituted by an
overdraft facility which operates on a gross/net basis, only the net amount of
such facility shall count towards such aggregate amount.


 


135

















 


25.5                        Dividends,
Distributions and Share Capital


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall):


 


(a)                                  declare,
make or pay any dividend (or interest on any unpaid dividend), charge, fee or
other distribution (whether in cash or in kind) on or in respect of any of its
shares;


 


(b)                                  redeem,
repurchase, defease, retire or repay any of its share capital, or resolve to do
so;


 


(c)                                  repay
or distribute any share premium account; or


 


(d)                                  repay
or otherwise discharge or purchase any amount of principal of (or capitalised
interest on) or pay any amount of interest in respect of Subordinated Funding,


 


other than:


 


(i)                                    to
the extent the share capital of such Obligor is held by one or more other
Obligors or to the extent the share capital of any such member of the Bank
Group which is not an Obligor is held by one or more other members of the Bank
Group;


 


(ii)                                to
the extent discharged in consideration of a transfer of any non-cash asset the
disposal of which is not otherwise prohibited by this Agreement, by the waiver
of any payment where no cash consideration is given in respect of such waiver
or by way of conversion into any securities (including convertible unsecured
loan stock), (or vice versa), which do not involve any cash payments or by way
of capital contribution to the debtor in respect of such Subordinated Funding;


 


(iii)                            to
the extent required for the purpose of making payments to:


 


(A)                               the indenture trustee for the Existing High Yield Notes in respect
of High Yield Trustee Amounts (as such term is defined in the HYD Intercreditor
Agreement);


 


(B)                               the indenture trustee for the New High Yield Notes in respect of
High Yield Trustee Amounts (as such term is defined in the HYD Intercreditor
Agreement); or


 


(C)                               for the purpose of making payments in respect of any similar amounts
to the indenture trustee in respect of any High Yield Refinancing;


 


(iv)                               provided
that no Event of Default has occurred and is continuing or is likely to occur
as a result thereof, to the extent required to fund Permitted Payments;


 


(v)                                   at
any time after the occurrence of an Event of Default, to the extent required to
fund Permitted Payments not otherwise prohibited by the HYD Intercreditor
Agreement and the Group Intercreditor Agreement; or


 


(vi)                               to
the extent such redemption, repurchase, defeasance, retirement or repayment is
in respect of a nominal amount.


 


The
Lenders hereby consent to any transaction or matter to the extent expressly
permitted under paragraphs (i) to (vi) above.


 


136

















 


25.6                        Disposals


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group, either in a
single transaction or in a series of related transactions, sell, transfer,
lease or otherwise dispose of any shares in any of its Subsidiaries or all or
any part of its revenues, assets, other shares, business or undertakings other
than in the ordinary course of business or trading (which, for the avoidance of
doubt, includes mast sharing arrangements) and other than:


 


(a)                                  any
payment required to be made under the Finance Documents (including any payment
required to be made under any Alternative Baseball Financing);


 


(b)                                  the
disposal of obsolete or surplus assets no longer required for the efficient
operation of the Group Business, on arms’ length commercial terms;


 


(c)                                  disposals
of cash, the lending or repayment of cash or the disposal of Cash Equivalent
Investments or Marketable Securities, on arms’ length commercial terms where
the same is not otherwise restricted by the terms of the Finance Documents;


 


(d)                                  by
an Obligor to another Obligor, provided that
if such assets are subject to existing Security they remain so or will be made
subject to Security (in form and substance substantially similar to the
existing Security or otherwise in such form and substance as may reasonably be
required by the Facility Agent) within 10 Business Days of such disposal;


 


(e)                                  disposals
by a member of the Bank Group which is not an Obligor to another member of the
Group;


 


(f)                                    disposals
of assets on arms’ length commercial terms where the cash proceeds of such
disposal are reinvested within 12 months of the date of the relevant disposal
in the purchase of replacement assets by a member of the Bank Group, provided
that where the relevant member of the Bank Group that has made the disposal is
an Obligor, such replacement assets are either subject to existing Security
Documents granted by the relevant member of the Bank Group that has acquired
the replacement assets, or will be made subject to Security by such member of
the Bank Group (in form and substance substantially similar to the existing
Security or otherwise in such form and substance as may reasonably be required
by the Facility Agent) within 10 Business Days of the acquisition of such
replacement assets;


 


(g)                                 disposals
of any interest in real or heritable property by way of a lease or licence
granted by a member of the Bank Group to another member of the Bank Group;


 


(h)                                 disposals
of any assets pursuant to the implementation of an Asset Passthrough or of any
funds received pursuant to the implementation of a Funding Passthrough;


 


(i)                                    disposals
of any accounts receivable on arms’ length commercial terms pursuant to an
asset securitisation programme or one or more receivables factoring
transactions provided that:


 


(i)                                    such
disposal is conducted on a non-recourse basis;


 


(ii)                                the
aggregate principal amount of all such securitisations or factoring
transactions conducted in reliance on this paragraph (i) does not exceed £300
million (or its equivalent in other currencies) at any time; and


 


(iii)                            in
the case of disposals arising pursuant to an asset securitisation programme
only, the proceeds of any such disposal are applied in accordance with Clause
12.7 (Repayment from Securitisations);


 


137

















 


(j)                                    disposals
of any shares or other interests in any Project Company, Bank Group Excluded
Subsidiary or Joint Venture or the assignment of any Financial Indebtedness
owed to a member of the Bank Group by a Project Company, Bank Group Excluded
Subsidiary or Joint Venture;


 


(k)                                disposals
of assets, revenues or rights of any member of the Bank Group arising from an
amalgamation, consolidation or merger of a member of the Bank Group with any
other person which is permitted by Clause 25.8 (Mergers);


 


(l)                                    disposals
of accounts receivable which have remained due and owing from a third party for
a period of more than 90 days and in respect of which the relevant member of
the Bank Group has diligently pursued payment in the normal course of its
business and where such disposal is on non-recourse terms to such member of the
Bank Group;


 


(m)                              disposals
of assets subject to finance or capital leases pursuant to the exercise of an
option by the lessee under such finance or capital leases;


 


(n)                                 disposals
of assets in exchange for the receipt of assets of a similar or comparable value
where the assets received by any member of the Bank Group following such
exchange are located in the United Kingdom, Isle of Man, the Republic of
Ireland or the Channel Islands, provided that:


 


(i)                                    to
the extent that the assets being disposed of are subject to existing Security,
the assets received following such exchange will be subject to the existing
Security Documents, or will be made subject to Security (in form and substance
substantially similar to the existing Security or otherwise in such form and
substance as may reasonably be required by the Facility Agent) within 10
Business Days of such disposal; and


 


(ii)                                where
the aggregate net book value of all assets being exchanged in reliance on this
paragraph (n) exceeds £10 million (or its equivalent in other currencies) in
any Financial Quarter, there is delivered to the Facility Agent, within 30 days
from the end of such Financial Quarter of the Bank Group, a certificate signed
by two authorised officers of the Company (given without personal liability)
certifying that the assets received by such member of the Bank Group in
reliance on this paragraph (n) during such Financial Quarter (i) are of a
similar or comparable value to the assets disposed of by such member of the
Bank Group, and (ii) that such assets are located in United Kingdom, Isle of
Man, the Republic of Ireland or the Channel Islands;


 


(o)                                  disposals
constituting the surrender of tax losses by any member of the Bank Group:


 


(i)                                    to
any Non-Bank Group UK Taxpayer to the extent that the total amount of such Tax
Losses aggregated with all other Tax Losses surrendered in the same financial
year in reliance on this paragraph (o) does not exceed the Deductions Limit;
and


 


(ii)                                to
any other member of the Group other than a member of the Bank Group, where the
surrendering company receives fair market value for such tax losses from the
relevant recipient,


 


138

















 


provided that no Tax Losses may be
surrendered under sub-paragraph (ii) above unless no later than 30 days after
the proposed surrender, there is delivered to the Facility Agent, a certificate
signed by two authorised signatories of the Company (given without personal
liability), giving brief details of the relevant transaction and certifying:


 


(A)                               where the fair market value to the recipient of any surrender of Tax
Losses exceeds £15 million (or its equivalent in other currencies), the fair
market value received by the surrendering company in respect of such Tax
Losses, as determined by the Company in its reasonable opinion, after taking
account of advice from its external tax advisers; and


 


(B)                               that, taking into account the aggregate amount of Tax Losses
surrendered by members of the Bank Group (whether in reliance on this paragraph
(o) or otherwise) and assuming that the financial performance of the Bank Group
is in accordance with the projections set out in the Agreed Business Plan),
there is no reasonable expectation that any member of the Bank Group will
become a tax payer prior to the Final Maturity Date in respect of the B
Facility and the B1 Facility as a result of such surrender of Tax Losses;


 


(p)                                  disposals
of assets to and sharing assets with any person who is providing services the
provision of which have been or are to be outsourced to that person by any
member of the Bank Group provided that:


 


(i)                                    the
assets being disposed of in reliance on this paragraph (p) shall be assets
which relate to the services which are the subject of such outsourcing;


 


(ii)                                the
projected cash cost to the Bank Group of such outsourcing shall be less than
the projected cash cost to the Bank Group of carrying out such outsourced
activities at the levels of service to be provided by the service provider
within the Bank Group;


 


(iii)                            the
economic benefits derived from any such outsourcing contract shall be received
by the Bank Group during the term of such contract;


 


(iv)                               the
aggregate fair market value of the assets disposed of shall not exceed 3.75% of
Bank Group Consolidated Revenues in any financial year; and


 


(v)                                   no
later than 30 days after the date of such outsourcing where the consideration
payable in respect of the assets subject to such disposal exceeds £10 million
(or its equivalent in other currencies), a duly authorised officer of the
Company shall have provided to the Facility Agent, a certificate (without
personal liability) verifying each of the matters set out in sub-paragraphs (i)
to (iii) above and certifying that as at the date of such certificate, the
aggregate fair market value of all assets disposed in reliance on this
paragraph (p) during such financial year, does not exceed the threshold
specified in sub-paragraph (iv) above;


 


(q)                                  disposals
of assets pursuant to sale and leaseback transactions not constituting
Financial Indebtedness where the aggregate fair market value of any assets
disposed of in reliance on this paragraph (q) does not, together with the
aggregate principal amount of all outstanding Financial Indebtedness incurred
under paragraph (k) of Clause 25.4 (Financial Indebtedness)
exceed £150 million (or its equivalent in other currencies) in any financial
year of the Company and any disposals of assets pursuant to sale and leaseback
transactions constituting Financial Indebtedness to the extent such Financial
Indebtedness is permitted under this Agreement;


 


139

















 


(r)                                  disposals
of any Hedging Agreements no longer required for the purpose for which it was
originally entered into;


 


(s)                                  disposals
of non-core assets acquired in connection with a transaction permitted under
Clause 25.13 (Acquisitions and
Investments);


 


(t)                                    any
disposal of all or part of “NTL – Business Segment” pursuant to a Business
Division Transaction;


 


(u)                                 any
disposals constituted by licences of intellectual property rights permitted by
Clause 24.6 (Intellectual Property);


 


(v)                                   any
disposal of assets made pursuant to the establishment of a Permitted Joint
Venture or any disposal of assets to a Permitted Joint Venture which is
permitted within the scope of the provisions contained in Clause 25.9 (Joint Ventures); and


 


(w)                                disposals
of assets not otherwise permitted under this Clause 25.6 provided that the
aggregate fair market value of the assets disposed of during any given
financial year in reliance on paragraphs (p) and (q) above and on this
paragraph (w) does not exceed in respect of any financial year of the Bank
Group, 12.5% of Bank Group
Consolidated Revenues for the preceding financial year of the Bank Group,
calculated by reference to the annual financial information for the Bank Group
delivered in respect of the preceding financial year of the Bank Group pursuant
to paragraph (b)(ii) of Clause 22.1 (Financial
Statements);


 


provided
that in respect of any Disposal permitted under paragraphs (i), (m), (o)(ii),
(q) and (w) above:


 


(A)                               such disposal shall be on arm’s length commercial terms (or in the
case of paragraph (o)(ii) such disposals are for fair market value from the
perspective of the surrendering company);


 


(B)                               at least 75% of the consideration for such disposal shall be
comprised of cash, Cash Equivalent Investments, Marketable Securities or
Additional Assets, provided that the aggregate amount of consideration received
by way of Marketable Securities shall not (valued as at the relevant time of
receipt of any Marketable Securities) at any time exceed £50 million (or its
equivalent in other currencies) and provided further that any Cash Equivalent
Investments, Marketable Securities and/or Additional Assets acquired pursuant
to any such disposal are monetized within 3 months of the expiry of any lock-up
arrangement entered into by the relevant member of the Bank Group making such
disposal with any third party (where such lock-up arrangement has a term not
exceeding 12 months); and


 


(C)                               in respect of any disposal the fair market value of which exceeds
£35 million (or its equivalent in other currencies) no later than 30 days after
the date of such disposal, there shall have been delivered to the Facility
Agent, a certificate signed by two authorised officers of the Borrower
providing brief details of the transaction and certifying (in each case, to the
extent applicable) (1) (other than in respect of disposals under paragraph
(o)(ii) above) such disposal shall be on arm’s length commercial terms or (in
the case of paragraph (o)(ii) such disposals are for fair market value from the
perspective of the surrendering company), (2) that not less than 75% of the
consideration for such disposal shall be in cash, Cash Equivalent Investments,
Marketable Securities or Additional Assets, and (3) to the extent any of the
consideration will include Marketable Securities, the name, amount and other
brief details of such Marketable Securities.


 


140

















 


25.7                        Change
of Business


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group or save as
otherwise permitted by the terms of this Agreement make any change in the
nature of its business as carried on immediately prior to the Original
Execution Date, which would give rise to a substantial change in the business
of the Bank Group taken as a whole, provided that this Clause 25.7 shall not be
breached by an Obligor or any member of the Bank Group making a disposal
permitted by Clause 25.6 (Disposals), an
acquisition or investment permitted by Clause 25.13 (Acquisitions
and Investments) or entering into any joint venture permitted by
Clause 25.9 (Joint Ventures).


 


25.8                        Mergers


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall), without the prior written consent of an Instructing Group, amalgamate,
consolidate or merge with any other person unless:


 


(a)                                  such
amalgamation, consolidation or merger is between two Obligors or an Obligor and
another member of the Group where the Obligor will be the surviving entity;


 


(b)                                  such
amalgamation, consolidation or merger is between two members of the Bank Group
which are not Obligors;


 


(c)                                  such
amalgamation, consolidation, or merger constitutes an acquisition permitted
under Clause 25.13 (Acquisitions and
Investments);


 


(d)                                  any
member of the Bank Group liquidates or dissolves in either case on a solvent
basis and, with respect to the Obligors on a basis that is in accordance with
the provisions of Clause 25.20 (Solvent Liquidation),


 


(e)                                  such
amalgamation, consolidation or merger is by an Obligor (the “Original Entity”) into one or more entities
(each a “Merged Entity”), provided
that:


 


(i)                                    such
Merged Entity is a Obligor and is liable for the obligations of the relevant
Original Entity under this Agreement and the Security which remain unaffected
thereby and entitled to the benefit of all the rights of such Original Entity;


 


(ii)                                if
required by the Facility Agent, such Merged Entity has entered into one or more
Security Documents which provide security over the same assets of at least an
equivalent nature and ranking to the security provided by the relevant Original
Entity pursuant to any Security entered into by them and any possibility of the
Security referred to in this paragraph or paragraph (iii) below being
challenged or set aside is not greater than any such possibility in relation to
the Security entered into by or in respect of the share capital of any relevant
Original Entity;


 


(iii)                            (if all
or any part of the share capital of the relevant Original Entity was charged
pursuant to one or more Security Documents) the equivalent part of the issued
share capital of such Merged Entity is charged pursuant to Security on terms of
at least an equivalent nature and ranking as the Security relating to the
shares in the relevant Original Entity; and


 


(iv)                               the
Facility Agent is satisfied (acting reasonably) that all the property and other
assets of the relevant Original Entity are vested in the Merged Entity and that
the Merged Entity has assumed all the rights and obligations of the relevant
Original Entity under all material Necessary Authorisations; and


 


141

















 


(f)                                    transactions
that are expressly contemplated by the Steps Paper,


 


provided
that in the case of paragraphs (a), (b), (c) and (e) only, no later than 10
Business Days prior to the proposed amalgamation, consolidation or merger a
duly authorised officer of the Company shall have delivered to the Facility
Agent (in form and substance satisfactory to the Facility Agent, acting
reasonably) a certificate verifying compliance with the relevant matters set
out in such paragraph and to the extent deemed necessary, the Facility Agent
shall have received appropriate advice from counsel in any relevant
jurisdiction that such amalgamation, consolidation or merger (1) will not
result in the breach of any applicable law or regulation in any material
respect and (2) in the case of an amalgamation, consolidation or merger
involving an Obligor, will not have a materially adverse impact upon any of the
obligations owed by such Obligor to the Finance Parties or upon the Security
granted by such Obligor under any Security Document.


 


25.9                        Joint
Ventures


 


No
Obligor shall, (and the Company shall procure that no member of the Bank Group
shall) enter into, make any loans, distributions or other payments to, give any
guarantees for the Financial Indebtedness of, or acquire any interest or
otherwise invest in, any Joint Venture, other than:


 


(a)                                  an
acquisition of any interest in or any investment in any member of the UKTV
Group;


 


(b)                                  pursuant
to any loan or other funding arrangement in accordance with any Existing UKTV
Group Loan Stock (including the funding of any undrawn amount thereunder as at
the Original Execution Date); or


 


(c)                                  the
acquisition of any interest in or any investment in, any Joint Venture
constituting a Business Division Transaction, provided that:


 


(i)                                    the
Net Proceeds of any such transaction shall be distributed in accordance with
the provisions of sub-paragraph (iv) of Clause 25.5 (Dividends,
Distributions and Share Capital); and


 


(ii)                                any
Net Proceeds which are not distributed in accordance with (i) above shall be
retained within the Bank Group; or


 


(d)                                  any other
Joint Venture not contemplated by paragraphs (a) to (c) above, which is engaged
in a business substantially the same as or reasonably related or complimentary
to, that carried on by the Bank Group and in any financial year, the aggregate
of:


 


(i)                                    all
amounts invested or any interests acquired in any Joint Venture by members of
the Group; and


 


(ii)                                any
loans made or any guarantees given for Financial Indebtedness of any Joint
Venture,


 


does not exceed 3.25% of Bank Group
Consolidated Revenues for the preceding financial year, calculated by reference
to the annual financial information for the Bank Group delivered in respect of
that preceding financial year of the Bank Group pursuant to Clause 22.1 (Financial Statements), provided that any loans or investments made by way of Asset
Passthrough and any payments made in respect of transactions conducted on an
arm’s length basis or in the ordinary course of trading with any Joint Venture,
shall not be included in the
calculation of such amount.


 


142

















 


25.10                 Transactions with
Affiliates


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) without the prior written consent of an Instructing Group, enter into
any arrangement, contract or transaction with any other member of the Group
which is not an Obligor, other than:


 


(a)                                  transactions
expressly permitted by the Finance Documents;


 


(b)                                  transactions
between a member of the Bank Group that is not an Obligor with any other member
of the Bank Group which is not an Obligor;


 


(c)                                  transactions
in the ordinary course of business and either on no worse than arm’s length
terms or, where there is no available market by which to assess whether such a
transaction is on no worse than arm’s length terms, on terms such that the
transaction is financially fair to the relevant Obligor or, as the case may be,
other member of the Bank Group;


 


(d)                                  transactions
with any member of the Group in relation to management services conducted at
not less than Cost on behalf of such member of the Group;


 


(e)                                  tax
sharing agreements or arrangements to surrender tax losses and payments made
pursuant thereto, to the extent such transactions are not prohibited by this
Agreement;


 


(f)                                    transactions
relating to the provision of Intra-Group Services;


 


(g)                                 transactions
to effect either an Asset Passthrough or a Funding Passthrough;


 


(h)                                 transactions
either on terms and conditions (including, without limitation, as to any
reasonable fees payable in connection with such transactions) not substantially
less favourable to the relevant Obligor or, as the case may be, other member of
the Bank Group than would be obtainable at such time in comparable arm’s length
transactions with an entity which is not an Affiliate or, where there is no
comparable arm’s length transaction by which to assess whether such a
transaction is on terms and conditions not substantially less favourable to the
relevant Obligor or, as the case may be, other member of the Bank Group, on
such terms and conditions (including, without limitation, as to any fees
payable in connection with such transaction) that the transaction is
financially fair to the relevant Obligor or, as the case may be, other member
of the Bank Group;


 


(i)                                    any
transaction to which one or more Obligors and one or more members of the Group
who are not Obligors are party where the sole purpose of such transaction is
for such Obligors and members of the Group to effect a transaction with a
person who is not a member of the Group;


 


(j)                                    insurance
arrangements entered into in the ordinary course of business with a Captive
Insurance Company;


 


(k)                                transactions
relating to capital contributions between members of the Group or the amendment
of the terms of any loans made by or any convertible unsecured loan stock or
other securities issued by any member of the Group to any other member of the
Group (whether by way of conversion of loans to convertible unsecured loan
stock or vice versa or otherwise) or the capitalisation of, or the waiver of or
the repayment of, loans made by or any convertible unsecured loan stock issued
by any member of the Group to any other member of the Group;


 


(l)                                    transactions
relating to Excess Capacity Network Services provided that the price payable by
any member of the Group in relation to such Excess Capacity Network Services is
no less


 


143

















 


than the Cost
incurred by the relevant member of the Bank Group in providing such Excess
Capacity Network Services;


 


(m)                              transactions
constituting Subordinated Funding;


 


(n)                                 transactions
constituting Permitted Payments;


 


(o)                                  any
other transaction or arrangement permitted under Clause 25.3 (Loans and Guarantees), Clause 25.4 (Financial Indebtedness), Clause 25.5 (Dividends, Distributions and Share Capital),
Clause 25.6 (Disposals), Clause
25.8 (Mergers), Clause 25.9 (Joint Ventures), or Clause 25.13 (Acquisitions and Investments).


 


25.11                 Change in
Financial Year


 


Neither
the Parent nor any Obligor shall, without the prior consent of the Facility Agent,
change the end of its financial year from 31 December.


 


25.12                 Limitations on
Hedging


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) enter into any Hedging Agreement other than:


 


(a)                                  the
Hedging Agreements listed in Part 6 of Schedule 10 (Existing Hedging Agreements);


 


(b)                                  Hedging
Agreements specifically required under Clause 24.9 (Hedging);
or


 


(c)                                  any
Hedging Agreement in respect of spot or forward foreign exchange transactions
or currency swaps entered into in connection with such member of the Bank Group’s
business, which is not entered into for investment or speculative purposes and,
for the avoidance of doubt (subject to the provisions of Clause 25.10 (Transactions with Affiliates), any such
Hedging Agreement may be entered into with another member of the Group.


 


25.13                 Acquisitions and
Investments


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) purchase, subscribe for or otherwise acquire or invest in any shares (or
other securities or any interest in it) in, or incorporate, any company or
acquire (by subscription or otherwise) or invest in any business or (save in
the ordinary course of business) purchase or otherwise acquire any other assets
other than:


 


(a)                                  the
purchase of or investment in Cash Equivalent Investments or Marketable
Securities (including without limitation by way of consideration in respect of
any disposal as contemplated in the proviso to Clause 25.6 (Disposals) and subject to the conditions
set out therein);


 


(b)                                  the
incorporation of a company or the acquisition of an “off-the-shelf” company
which is or becomes a member of the Bank Group;


 


(c)                                  any
acquisition by any member of the Bank Group in connection with a disposal
permitted by the provisions of Clause 25.6 (Disposals) and
any acquisition or subscription by a member of the Bank Group of shares issued
by a Subsidiary of the Borrower or a Subsidiary of NTL Communications Limited
which in any such case, is a member of the Bank Group which will, after the
acquisition of such shares become a wholly owned direct or indirect Subsidiary
of the Company or NTL Communications Limited as the case may be, provided that if the other shares of such
Subsidiary are subject to existing Security, either (i) such newly issued
shares shall also be subject to Security (in form and substance substantially
similar to any


 


144

















 


existing
Security or otherwise in such form and substance as may be reasonably required
by the Facility Agent) upon their issue or (ii) such shares shall be made
subject to Security (in form and substance substantially similar to any
existing Security or otherwise in such form and substance as may be reasonably
required by the Facility Agent) within 10 Business Days of their issue;


 


(d)                                  the
acquisition of any shares in NTL South Herts or the acquisition of any
interests in the limited partners of South Hertfordshire United Kingdom Fund,
Ltd.;


 


(e)                                  any
acquisition made by a member of the Bank Group pursuant to the implementation
of an Asset Passthrough or a Funding Passthrough;


 


(f)                                    any
acquisition expressly contemplated by the Steps Paper;


 


(g)                                 any
acquisition by any member of the Bank Group of any loan receivable, security or
other asset by way of capital contribution or in consideration of the issue of
any securities or of Subordinated Funding;


 


(h)                                 any
acquisition of shares, assets, revenues or rights arising from an amalgamation,
consolidation or merger of a member of the Bank Group with any other person
which is permitted by Clause 25.8 (Mergers);


 


(i)                                    the
acquisition of any leasehold interest in any assets which are the subject of a
sale and leaseback permitted by the provisions of paragraph (q) of Clause 25.6
(Disposals);


 


(j)                                    any
acquisition of or investment in any Joint Venture permitted by Clause 25.9 (Joint Ventures);


 


(k)                                any
purchase or acquisition of assets or revenues by a member of the Bank Group
from a member of the Bank Group, provided that the disposal of such assets or
revenues by the relevant member of the Bank Group is permitted under Clause
25.6 (Disposals);


 


(l)                                    arising
from the conversion of any company (the “Original
Company”) from one form of organisation into another form of
organisation provided that (i) if, prior to the time of such conversion, the
Security Trustee has the benefit of Security over the shares of such Original
Company or such Original Company is an Obligor, then the Company shall ensure
that the Security Trustee is provided with Security over the equivalent
ownership interests in, and substantially all of the assets of, the converted
organisation, of at least an equivalent nature and ranking to the Security
previously provided by the Original Company and (ii) the Security Trustee is
satisfied that any possibility of the additional Security referred to in this
paragraph being challenged or set aside is not greater than any such
possibility in relation to the Security entered into by or in respect of the
share capital of the Original Company;


 


(m)                              the Baseball Acquisition;


 


(n)                                 the
Alternative Baseball Acquisition, provided that:


 


(i)                                    the
total cash payment for such acquisition (including the assumption of debt) does
not exceed £500 million;


 


(ii)                                at
the time of completion of such Alternative Baseball Acquisition, no Event of
Default has occurred or in continuing or would occur as a result of such
acquisition; and


 


145

















 


(iii)                            after
giving pro forma effect for such Alternative Baseball Transaction, the Bank
Group continue to be in compliance with Clause 23.2 (Ratios);


 


(o)                                  any
acquisition (a “Permitted Acquisition”)
of a person carrying on any business similar and/or complementary to the Group
(the “Acquiree”) in each case:


 


(i)                                    no
Default is continuing on the closing date for the Permitted Acquisition or
would occur as a result of the Permitted Acquisition;


 


(ii)                                the
aggregate consideration for the Permitted Acquisition (including any assumed
indebtedness, or other assumed actual or contingent liability and any
associated fees and expenses) (the “Total
Purchase Price”) is funded entirely from (A) the proceeds of New
Equity and (B) up to £200 million in aggregate of available cash within the
Group or Financial Indebtedness permitted by this Agreement;


 


(iii)                            the
Acquiree has positive earnings before tax, depreciation and amortisation
calculated on the same basis as Consolidated Operating Cashflow for the
previous one financial year ending on the last day of the last financial
quarter of the then current financial year of such company or business for
which financial statements are available;


 


(iv)                               in
the case of the acquisition of all of the issued share capital of the Acquiree,
as soon as reasonably practicable, but in any case within 90 days from the
completion of the Permitted Acquisition, the Acquiree (and the acquirer, as
applicable) must to the extent required by Clause 24.12 (Further Assurance) accede as a Guarantor
in accordance with the provisions of Clause 26.2 (Acceding
Guarantors);


 


(v)                                   in
the case of the acquisition of a business or undertaking carried on as a going
concern of the Acquiree, as soon as reasonably practicable, but in any case
within 90 days from the completion of the Permitted Acquisition, the acquirer,
to the extent that it is an Obligor, must give Security over the assets
acquired by executing Security Documents, in form and substance satisfactory to
the Facility Agent and to the extent it becomes a Material Subsidiary, it shall
accede as a Guarantor in accordance with the provision of Clause 26.2 (Acceding Guarantors);


 


(vi)                               for
any Permitted Acquisition the Total Purchase Price of which is in excess of
£100 million, the Company must provide to the Facility Agent (to the
extent practicable not later than 5 Business Days prior to the proposed
acquisition):


 


(A)                               copies of all due diligence reports (if any) commissioned by the
Company or any relevant member of the Bank Group in respect of the proposed
Permitted Acquisition;


 


(B)                               copies of all sale and purchase documents relating to the proposed
Permitted Acquisition, in each case duly executed and delivered by all parties
thereto, together with confirmation that all material Authorisations for such
acquisition have been made, obtained and are in full force and effect;


 


(C)                               an updated Budget amended to reflect the proposed Permitted
Acquisition; and


 


146

















 


(vii)                           the
Company will provide to the Facility Agent, a certificate signed by the chief
financial officer of the Company showing in reasonable detail that:


 


(A)                               it would have remained in compliance with its obligations under
Clause 23 (Financial Condition)
if the covenants tested therein were recalculated for the most recent Quarter
Date for which quarterly financial information is available, such recalculation
to be made by reference to the financial statements of the Acquiree
consolidated with the financial statements of the Bank Group for such period on
a pro forma basis and as if the consideration for the proposed acquisition had
been paid at the start of that relevant testing period ending on that Quarter
Date and any borrowings incurred in connection with the acquisition or since
the last day of the relevant testing period had been incurred on the first day
of the relevant testing period and (to the extent agreed by the Facility Agent,
acting reasonably) to any reasonably identifiable cost savings and other
synergies which are reasonably expected to result from the Permitted
Acquisition; and


 


(B)                               it will be in compliance with its obligations under Clause 23 (Financial Condition) as at the end of the
next Financial Quarter, such compliance to be demonstrated on a pro forma basis
by reference to the financial statements of the Acquiree, consolidated with the
financial statements of the Bank Group for such period and (to the extent
agreed by the Facility Agent, acting reasonably) to any reasonably identifiable
cost savings and other synergies which are reasonably expected to result from
the Permitted Acquisition; and


 


(p)                                  acquisitions
not falling within paragraphs (a) to (o) above provided that the aggregate consideration for the acquisitions
permitted by this paragraph (p) shall not exceed £300 million.


 


25.14                 High Yield Notes


 


Save to the extent expressly
permitted under the terms of the HYD Intercreditor Agreement, without the
consent of an Instructing Group:


 


(a)                                  with
respect to NTL Cable only:


 


(i)                                    it
will not transfer any of its rights or obligations under the Existing High
Yield Notes or agree any amendment to the Existing High Yield Notes (i)
relating to the increase in the amount of or the bringing forward of the date
of any payment of principal, interest, fees or other amounts payable thereunder
or (ii) changing the currencies in which the Existing High Yield Notes are
denominated as at the Merger Closing Date (other than in the case where the
United Kingdom becomes a Participating Member State);


 


(ii)                                it
will not transfer any of its rights or obligations under the New High Yield
Notes or agree any amendment to the New High Yield Notes after the date of
issuance (i) relating to the increase in the amount of or the bringing
forward of the date of any payment of principal, interest, fees or other
amounts payable thereunder or (ii) changing the currencies in which the
New High Yield Notes are denominated as at the date of issuance (other than in
the case where the United Kingdom becomes a Participating Member State); or


 


(iii)                            in
relation to any High Yield Refinancing permitted under the terms of this
Agreement, it will not change any of the original terms under which such High
Yield Refinancing was issued, where such terms relate to the conditions of such
High Yield


 


147

















 


Refinancing
set out in the definition thereof; or


 


(b)                                  with
respect to the Company, it will not agree any amendment to the guarantee
granted by it in respect of obligations of NTL Cable under the Existing High
Yield Notes or any guarantee granted in respect of the New High Yields Notes or
High Yield Refinancing and which is granted in accordance with the terms of
paragraph (c) of Clause 25.4 (Financial
Indebtedness),


 


in
each case, other than amendments of an administrative or technical nature.


 


25.15                 No Restrictions
on Payments


 


No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) enter into any agreement, transaction or other arrangement which
restricts or attempts to restrict such Obligor or other member of the Bank
Group from making any payments or other distributions in cash to any other
member of the Bank Group, if any such restriction affects the ability of the
Obligors as a whole to comply with the payment obligations under the Finance
Documents or is reasonably likely to result in the incurrence of significant
costs, or any significant increase in, any costs and expenses payable by or any
taxes owing by the Bank Group as a whole or is reasonably likely to result in a
significant increase in any taxes in any material amount owing by the Bank
Group as a whole, other than pursuant to or as contemplated by the Finance Documents
or the Bridge Finance Documents.


 


25.16                 Parent Covenants


 


The Parent shall not trade, carry on any business, own any material
assets or incur any material liabilities except for:


 


(a)                                  the carrying on business of and the provision of
administrative services to members of the Bank Group of a type customarily
provided by, a holding company to its Subsidiaries;


 


(b)                                  the ownership of shares in the Company, intergroup debit
balances, intergroup credit balances and other credit balances in bank accounts
and cash, provided that any shares held by the Parent in the Company, or any
intergroup credit balances owed to a the Parent by, an Obligor shall be:


 


(i)                                    subject to Security;


 


(ii)                                to
the extent applicable, subject to the provisions of the HYD Intercreditor
Agreement or the Group Intercreditor Agreement;


 


(c)                                  any rights and liabilities arising under the Finance
Documents, the Existing High Yield Notes, the Bridge Finance Documents, the New High Yield Notes or any High Yield Refinancing.


 


(d)                                  having
rights and liabilities under any hedging arrangements which are entered into by
it pursuant to clause 24.9 (Hedging) of
this Agreement;


 


(e)                                  incurring
liabilities for or in connection with Taxes or arising by operation of law; and


 


(f)                                    in
respect of any service contracts for any directors or employees.


 


25.17                 No Amendments


 


(a)                                  No
Obligor shall (and the Company shall procure that no member of the Bank Group
shall) amend the Tax Cooperation Agreement (to the extent it is a party
thereto) or its constitutional documents, in each case, in a manner which could
reasonably be expected to have a Material


 


148

















 


Adverse Effect
other than with the prior written consent of an Instructing Group or where
required by law (provided that, in the case of the latter, such amendment could
not reasonably be expected to have a Material Adverse Effect);


 


(b)                                  The
Parent shall procure that except as permitted by the HYD Intercreditor
Agreement and the Group Intercreditor Agreement, no amendment is made to:


 


(i)                                    the
Bridge Finance Documents, (or any Exchange Notes or New High Yield Notes as
applicable); or


 


(ii)                                the
Existing High Yield Notes,


 


in each case, in a manner which could
reasonably be expected to have a Material Adverse Effect other than with the
prior written consent of the Instructing Group or where required by law.


 


25.18                 Parent Debt


 


The
Ultimate Parent shall not (and shall procure that none of its Subsidiaries
(other than a member of the Bank Group) shall) incur, create or permit to
subsist or have outstanding any Financial Indebtedness or enter into any
agreement or arrangement whereby it is entitled to incur, create or permit to
subsist any Financial Indebtedness unless the Ultimate Parent can demonstrate
by reference to the quarterly financial information for the Group most recently
delivered pursuant to Clause 22.1 (Financial
Statements) that the Leverage Ratio (adjusted in the case of the
Consolidated Net Debt element, to take account of the Financial Indebtedness in
question and any other Financial Indebtedness raised by the Ultimate Parent or
such Subsidiary since the date of such quarterly financial information) is not
more than 4.25:1 for the period of four consecutive financial quarters ended on
the last day of the financial quarter in respect of which such quarterly
financial information was delivered provided that the foregoing limitations
shall not apply to:


 


(a)                                  any
Financial Indebtedness arising under or pursuant to the Finance Documents;


 


(b)                                  any
Financial Indebtedness incurred (including any such Financial Indebtedness
existing as at the Original Execution Date) by any member of the Group (other
than a member of the Bank Group) and owed to any other member of the Group;


 


(c)                                  any
Financial Indebtedness incurred by any member of the Group (other than a member
of the Bank Group) which, if it had been incurred by a Borrower at such time,
would be permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness) provided that if
any basket or threshold contained in Clause 25.4 (Financial
Indebtedness) is utilized by any member of the Group (other than a
member of the Bank Group) pursuant to this paragraph (c), such basket or
threshold shall be reduced by a corresponding amount and shall thereafter be
unavailable for use by any member of the Bank Group;


 


(d)                                  any
Financial Indebtedness incurred by any member of the Group (other than a member
of the Bank Group) to refinance all or any part of the Outstandings, including
the payment of all principal, interest, fees, expenses, commissions, make-whole
and any other contractual premium payable, in respect of such Outstandings and
any fees, costs and expenses incurred in connection with such refinancing;


 


(e)                                  the
Bridge Facility, the Alternative Bridge Facility, the Exchange Notes, the
Existing High Yield Notes, any New High Yield Notes or any High Yield
Refinancings; and


 


(f)                                    any
Financial Indebtedness incurred by any Permitted Joint Venture.


 


149

















 


25.19                 US Borrower


 


The
US Borrower shall not:


 


(a)                                  carry
on any trade or business other than as may be necessary in connection with the
Finance Documents and the acquisition and ownership of the Notes;


 


(b)                                  own
any Subsidiary or other entity;


 


(c)                                  create
or permit to subsist any Encumbrance over its rights under or title and
interest in the Notes, other than:


 


(i)                                    pursuant
to the Security; or


 


(ii)                                as
contemplated by any applicable Group Intercreditor Agreement or the HYD
Intercreditor Deed; or


 


(d)                                  dispose
of any or all of its rights, title and interest in the Notes other than
pursuant to or as contemplated by the Security Documents or as contemplated by
any applicable Group Intercreditor Agreement or the HYD Intercreditor Deed.


 


25.20                 Solvent
Liquidation


 


No
Obligor (for these purposes, a “Predecessor Obligor”)
shall, without the prior written consent of an Instructing Group, liquidate on
a solvent basis (a “Solvent Liquidation”)
unless:


 


(a)                                  on
or prior to the Solvent Liquidation, an entity (the “Successor Entity”) acquires substantially all of the assets
and assumes substantially all of the liabilities of the Predecessor Obligor (a “Liquidation Transfer”), excluding any
rights under contracts that cannot be assigned or liabilities that will be
satisfied or released upon the Solvent Liquidation, on an arms’ length basis
and for full consideration;


 


(b)                                  the
Successor Entity is organised in the same jurisdiction as that in which the
Predecessor Obligor is organised and is either:


 


(i)                                    an
existing Obligor; or


 


(ii)                                a
Subsidiary of the Company that is entitled to become (and subsequently does
become) an Obligor in accordance with the provisions of Clause 26.1 (Acceding Borrowers) or Clause 26.2 (Acceding
Guarantors); and


 


(c)                                  the
Successor Entity does not incur any additional material liabilities in
connection with the Solvent Liquidation other than those which are to be
transferred to it by the Predecessor Obligor but which did not arise directly
as a result of the Solvent Liquidation;


 


(d)                                  to
the extent previously provided in respect of the shares of the Predecessor
Obligor, the Finance Parties are granted a first ranking security interest over
the shares of the Successor Entity;


 


(e)                                  no
Event of Default has occurred and is continuing or would arise from the
Liquidation Transfer or the Solvent Liquidation;


 


150

















 


(f)                                    immediately
after the Solvent Liquidation, the following documents are delivered to the
Facility Agent each in a form previously approved by the Facility Agent (acting
on the instructions of an Instructing Group):


 


(i)                                    copies
of solvency declarations of the directors of the Successor Entity confirming to
the best of their knowledge and belief, that the Successor Entity was balance
sheet solvent immediately prior to and after the Solvent Liquidation,
accompanied by any report by the auditors or other advisers of the relevant
Successor Entity on which such directors have relied for the purposes of giving
such declaration;


 


(ii)                                copies
of the resolutions of the Predecessor Obligor and the Successor Entity (to the
extent required by law) approving the Liquidation Transfer and/or the Solvent
Liquidation (as applicable);


 


(iii)                            copies
of the statutory declarations of the directors of the Predecessor Obligor (to
the extent required by law) given in connection with Solvent Liquidation;


 


(iv)                               a
copy of the executed transfer agreement relating to the Liquidation Transfer;
and


 


(v)                                   the
legal opinion from the Successor Entity’s counsel confirming (i) the due
capacity and incorporation of each of the Successor Entity and the Predecessor
Obligor, (ii) the power and authority of the Successor Entity to enter into and
perform its obligations under this Agreement and any other Finance Document to
which it is a party and (iii) that the transfer agreement giving effect to the
Liquidation Transfer is legally binding and enforceable in accordance with its
terms.


 


25.21                 ERISA


 


Neither
any Obligor nor any ERISA Affiliate shall maintain or contribute to (or have an
obligation to contribute to) a Plan subject to Title IV or Section 302 of ERISA
and/or Section 412 of the Code or to a Multiemployer Plan which could
reasonably be expected to give rise to a material liability to any Obligor or
any Finance Party.


 


26.                               ACCEDING GROUP
COMPANIES


 


26.1                        Acceding
Borrowers


 


(a)                                  Subject
to paragraph (b) below, the Company may, upon not less than 3 Business Days’
prior written notice to the Facility Agent, request that any member of the Bank
Group becomes an Acceding Borrower under this Agreement.


 


(b)                                  Such
member of the Bank Group may become an Acceding Borrower if:


 


(i)                                    it
is not incorporated in the same jurisdiction as an existing Borrower and an
Instructing Group has approved the addition of that member of the Bank Group as
an Acceding Borrower or if such member of the Bank Group is established in the
United States of America, an Instructing Group has approved the addition of
that member of the Bank Group as an Acceding Borrower;


 


(ii)                                the
Company delivers to the Facility Agent a duly completed and executed Accession
Notice pursuant to which it agrees to become a party to this Agreement as an
Acceding Borrower and (subject to any provision of law prohibiting the same) an
Acceding Guarantor;


 


(iii)                            the
Company confirms that no Event of Default is continuing or would occur as a


 


151

















 


result of that member of the
Bank Group becoming an Acceding Borrower; and Acceding Guarantor; and


 


(iv)                               the
Facility Agent has received all of the documents and other evidence listed in
Part 2 of Schedule 7 (Accession Documents)
in relation to that member of the Bank Group, each in form and substance
satisfactory to the Agent, acting reasonably.


 


(c)                                  The
Facility Agent shall notify the Company and the Lenders promptly upon being
satisfied that the conditions specified in paragraph (b) above have been
satisfied.


 


26.2                        Acceding
Guarantors


 


(a)                                  Subject
to paragraph (b) below, the Company may, upon not less than 3 Business Days’
prior written notice to the Facility Agent, request that any member of the Bank
Group becomes an Acceding Guarantor under this Agreement.


 


(b)                                  Such
member of the Bank Group may become an Acceding Guarantor if:


 


(i)                                    the
Company delivers to the Facility Agent a duly completed and executed Accession
Notice;


 


(ii)                                the
Company confirms that no Event of Default is continuing or would occur as a
result of that member of the Bank Group becoming an Acceding Guarantor; and


 


(iii)                            the
Facility Agent has received all of the documents and other evidence listed in
Part 2 of Schedule 7 (Accession Documents)
in relation to that member of the Bank Group, each in form and substance
satisfactory to the Agent, acting reasonably.


 


(c)                                  The
Facility Agent shall notify the Company and the Lenders promptly upon being
satisfied that the conditions specified in paragraph (b) above have been
satisfied.


 


26.3                        Acceding
Holding Company


 


If
at any time the Ultimate Parent becomes a Subsidiary of a Holding Company, the
Ultimate Parent shall ensure that such Holding Company shall, upon becoming the
Holding Company of the Ultimate Parent deliver an Accession Notice duly
executed by the Company and the Holding Company together with the documents set
out in Part 2 of Schedule 7 (Accession Documents).


 


26.4                        Assumption
of Rights and Obligations


 


(a)                                  Upon
satisfactory delivery of a duly executed Accession Notice to the Facility
Agent, together with the other documents required to be delivered under Clauses
26.1 (Acceding Borrowers) and 26.2 (Acceding Guarantors), the relevant member of the Bank Group,
the Ultimate Parent, the Parent, the Obligors and the Finance Parties, will
assume such obligations towards one another and/or acquire such rights against
each other as they would each have assumed or acquired had such member of the
Bank Group been an original party to this Agreement as a Borrower or a
Guarantor as the case may be and such member of the Bank Group shall become a
party to this Agreement as an Acceding Borrower and/or an Acceding Guarantor as
the case may be.


 


(b)                                  Upon
satisfactory delivery of a duly executed Accession Notice to the Facility
Agent, together with the other documents required to be delivered under Clause
26.3 (Acceding Holding Company), the relevant
Holding Company, the Parent, the Obligors and the Finance Parties, will assume
such obligations towards one another and/or acquire such rights against each
other as they would each have assumed or acquired had such Holding Company been
an


 


152

















 


original party
to this Agreement as the Ultimate Parent, and such Holding Company shall become
a party to this Agreement in such capacity. 
Simultaneously with such Holding Company becoming a party to this
Agreement as aforesaid, the Facility Agent shall release the Ultimate Parent
for the time being from its obligations as an Ultimate Parent under this
Agreement and such Ultimate Parent shall cease to be a party to this Agreement
in such capacity.


 


27.                               EVENTS OF DEFAULT


 


Each
of Clauses 27.1 (Non-Payment) to
Clause 27.16 (Change of Ownership) describes
the circumstances which constitute an Event of Default for the purposes of this
Agreement.


 


27.1                        Non-Payment


 


The
Parent or any Obligor fails to pay any sum due from it under any Finance
Document at the time, in the currency and in the manner specified in such
Finance Document within (a) 1 Business Day of the due date, in the case of
payments of principal where failure to pay was due solely to technical or
administrative error in the transmission of funds, (b) 3 Business Days of the
due date, in the case of payments of interest, or (c) 5 Business Days of the
due date, in respect of payments of any other amounts.


 


27.2                        Covenants


 


(a)                                  The
Ultimate Parent, the Parent or an Obligor fails duly to perform or comply with
any obligation expressed to be assumed by it in Clause 24.1 (Application of Advances), Clause 25.2 (Negative Pledge), Clause 25.3 (Loans and
Guarantees), Clause 25.4 (Financial Indebtedness),
Clause 25.5 (Dividends, Distributions and Share Capital),
Clause 25.8 (Mergers), Clause 25.9 (Joint Ventures) or Clause 25.13 (Acquisitions
and Investments).


 


(b)                                  The
Parent or any Obligor fails duly to perform or comply with any obligation
expressed to be assumed by it in Clause 22 (Financial Information)
or sub-paragraph (b)(i) of Clause 24.12 (Further
Assurance), paragraphs (a) and (b) of Clause 24.9 (Hedging), and such failure, if capable of
remedy is not so remedied within 10 Business Days of the earlier of the Parent
or such Obligor becoming aware of such failure to perform or comply and the
Facility Agent having given notice of such failure to the Company.


 


(c)                                  There
is any breach of Clause 23.2 (Ratios).


 


(d)                                  There
is any breach of Clause 25.6 (Disposals),
provided that where the failure to comply with any obligation under Clause 25.6
(Disposals) relates to the obligation to
deliver a certificate within a specified time period, no Event of Default shall
be deemed to have occurred unless the Borrower shall have failed to deliver the
required certificate within such time period and upon request by the Facility
Agent for a description of the transactions relating to such certificate which
was not delivered, the Borrower fails to provide such details within 10
Business Days after such request.


 


27.3                        Other
Obligations


 


The
Ultimate Parent, the Parent or any Obligor fails duly to perform or comply with
any of the obligations expressed to be assumed by it in any of the Finance
Documents (other than any of those referred to in Clauses 27.1 (Non-Payment) and 27.2 (Covenants)) and
such failure, if capable of remedy, is not so remedied within 30 days of the earlier of the Ultimate
Parent, the Parent or such Obligor becoming aware of such failure to
perform or comply and the Facility Agent having given notice of such failure to
the Borrower.


 


153

















 


27.4                        Misrepresentation


 


Any representation or statement made or repeated by the Ultimate
Parent, the Parent or an Obligor in any Finance Document or in any notice or
other document or certificate delivered by it pursuant to a Finance Document is
or proves to have been incorrect or misleading in any material respect when
made or repeated where the circumstances giving rise to such inaccuracy, if
capable of remedy or change are not remedied or do not change within 30 days of the earlier of the Ultimate
Parent, the Parent or the relevant Obligor becoming aware of such circumstances
and the Facility Agent having notified the Borrower of such misrepresentation
having occurred.


 


27.5                        Cross
Default


 


(a)                                  Any
Financial Indebtedness of any member of the Group is not paid when due and
payable, after taking into account any applicable grace period;


 


(b)                                  any
Financial Indebtedness of any member of the Group is declared (or is capable of
being declared) to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however described),
after taking into account any applicable grace period; or


 


(c)                                  any
commitment for any Financial Indebtedness of any member of the Group is
cancelled or suspended by a creditor of any member of the Group as a result of
an event of default (however described),


 


provided that no Event of Default will occur under this Clause 27.5:


 


(i)                                    if
the aggregate amount of Financial Indebtedness and/or commitment for Financial
Indebtedness falling within paragraphs (a) to (c) above is less than
£35 million (or its equivalent in other currencies);


 


(ii)                                if
the circumstance which would otherwise have caused an Event of Default under
this Clause 27.5 is being contested in good faith by appropriate action;


 


(iii)                            if
the relevant Financial Indebtedness is cash-collateralised and such cash is
available for application in satisfaction of such Financial Indebtedness;


 


(iv)                               if
such Financial Indebtedness is owed by one member of the Group to another
member of the Group; or


 


(v)                                   if
such Event of Default arises solely by reason of the failure of any member of
the Group to  obtain the consent of the
lenders under the Existing Credit Facilities to (i) the execution of the
Finance Documents, (ii) the exercise of any of its rights or the
performance of any of its obligations under the Finance Documents or (iii) any
other matter contemplated by the Finance Documents.


 


27.6                        Insolvency


 


The Ultimate Parent, the Parent, any Borrower, any Obligor that is a
Material Subsidiary or (for the purposes of Clause 3.5 (Vanilla
Certain Funds Period) only) the
Merger Sub, is unable to pay its debts as they fall due, ceases or suspends
generally the payment of its debts or announces an intention to do so, or makes
a general assignment for the benefit of or a composition with its creditors
generally or a general moratorium is declared in respect of the Financial
Indebtedness of the Ultimate Parent, the Parent, such Borrower, such Obligor or
(for the purposes of Clause 3.5 (Vanilla Certain Funds Period) only) the
Merger Sub (as applicable).


 


154

















 


27.7                        Winding-up


 


After the Original Execution Date, the Ultimate Parent, the Parent, any
Borrower, any Obligor that is a Material Subsidiary or (for the purposes of
Clause 3.5 (Vanilla  Certain
Funds Period) only) the Merger Sub, takes any corporate action or
formal legal proceedings are started and served (not being actions or
proceedings which can be demonstrated to the satisfaction of the Facility Agent
by providing an opinion of a leading firm of London solicitors (within 30 days
of any such action or proceedings having commenced) to that effect, as
frivolous, vexatious or an abuse of the process of the court or related to a
claim to which such Person has a good defence and which is being vigorously
contested by such body) for its winding-up, dissolution, administration or re-organisation
or for the appointment of a liquidator, receiver, administrator, administrative
receiver, conservator, custodian, trustee or similar officer of it or of any or
all of its revenues and assets other than where any such legal proceedings in
respect of the Ultimate Parent, the Parent, such Borrower, such Material
Subsidiary or (for the purposes of Clause 3.5 (Vanilla Certain Funds Period) only) the
Merger Sub either (a)(i) do not relate to the appointment of an
administrator and (ii) are stayed or discharged within 30 days from their
commencement or (b) relate to a solvent liquidation or dissolution set
forth under paragraph (d) of Clause 25.8 (Mergers).


 


27.8                        Execution
or Distress


 


Any execution, distress or attachment is levied against, or an
encumbrancer takes possession of, the whole or any part of, the property,
undertaking or assets of the Parent, any Borrower, any Obligor which is a
Material Subsidiary or (for the purposes of Clause 3.5 (Vanilla Certain Funds Period) only) the
Merger Sub, having an aggregate value of more than £35 million (or its equivalent in other currencies) and the same is
not discharged within 30 days.


 


27.9                        Similar
Events


 


Any event occurs which, under the laws of any jurisdiction, has a
similar or analogous effect to any of those events mentioned in
Clause 27.6 (Insolvency), 27.7 (Winding-up) or Clause 27.8 (Execution or
Distress).


 


27.10                 Repudiation


 


The Ultimate Parent, the Parent or any Obligor repudiates any of the
Finance Documents to which it is party.


 


27.11                 Illegality


 


Save as provided in the Reservations, at any time it is or becomes
unlawful for the Ultimate Parent, the Parent or any Obligor to perform or
comply with any or all of its obligations under any of the Finance Documents to
which it is party or any of the obligations of the Ultimate Parent, the Parent
or any Obligor under any of the Finance Documents to which it is party are not
or cease to be legal, valid and binding except as contemplated by the
Reservations and, if capable of remedy, is not remedied within 10 Business Days
of the earlier of the Ultimate Parent, the Parent or such Obligor becoming
aware of the relevant illegality and the Facility Agent having given notice of
the same to the Borrower.


 


27.12                 Intercreditor
Default


 


Any member of the Group which is party to the Group Intercreditor
Agreement or the HYD Intercreditor Agreement fails to comply with its
obligations under it and such failure, if capable of remedy, is not remedied
within 30 days of the earlier of such member of the Group becoming aware of the
relevant failure to comply and the Facility Agent having given notice of the
same to the Parent.


 


155

















 


27.13                 Revocation
of Necessary Authorisations


 


Any Necessary Authorisation is revoked and where such revocation is
reasonably likely to have a Material Adverse Effect, is not replaced within 10 Business Days.


 


27.14                 Material
Adverse Effect


 


Any event or circumstance occurs which would have a Material Adverse
Effect.


 


27.15                 Material
Proceedings


 


Any litigation, arbitration or administrative proceeding of or before
any court, arbitral body, or agency is commenced against any member of the
Group, which is reasonably likely to be adversely determined and which, if
adversely determined, is reasonably likely to have a Material Adverse Effect.


 


27.16                 Change
of Ownership


 


(a)                                  After
consummation of the Merger and implementation of each of Steps 1 and 2 set
out in the page headed “Combination of NTL and
Telewest” of the Steps Paper, the Parent, the Company, TCN or any of
the Obligors are not direct or indirect wholly-owned Subsidiaries of the
Ultimate Parent.


 


(b)                                  After
implementation of each of Steps 3 to 10 set out in the pages headed “Post Combination Restructuring — Second Alternative (Structure 2)”
of the Steps Paper:


 


(i)                                    the
Parent is not a direct or indirect wholly owned subsidiary of the Ultimate
Parent;


 


(ii)                                the
Company ceases to be a direct wholly-owned Subsidiary of the Parent; or


 


(iii)                            any
Obligor (other than the Parent and the Company) ceases to be a direct or
indirect wholly-owned Subsidiary of the Company.


 


27.17                 Acceleration


 


Subject to Clauses 27.19 (Vanilla Clean-up Period) and 27.20 (Baseball Clean-up Period) below, upon the occurrence of an
Event of Default and while the same is continuing at any time thereafter, the
Facility Agent may (and, if so instructed by an Instructing Group, shall)
by written notice to the Company:


 


(a)                                  declare
all or any part of the Outstandings to be immediately due and payable
(whereupon the same shall become so payable together with accrued interest
thereon and any other sums then owed by any Obligor under the Finance
Documents) or declare all or any part of the Outstandings to be due and
payable on demand of the Facility Agent; and/or


 


(b)                                  require
the Borrowers to procure that the Outstanding L/C Amount under each Documentary
Credit is and all Ancillary Facility Outstandings are promptly reduced to zero
and/or provide cash collateral therefor by deposit in such interest bearing
account as the Facility Agent may specify for each Documentary
Credit/Ancillary Facility in an amount specified by the Facility Agent and in
the currency of such Documentary Credit/Ancillary Facility (whereupon the
Borrower shall do so) but no greater than the amount outstanding under such
Documentary Credit/Ancillary Facility; and/or


 


(c)                                  declare
that any unutilised portion of the Facilities shall be cancelled, whereupon the
same shall be cancelled and the corresponding Commitments of each Lender shall
be reduced to


 


156

















 


zero; and/or


 


(d)                                  exercise
or direct the Security Trustee to exercise any rights and remedies (including
any right to demand cash collateral by deposit in such interest-bearing account
as the Facility Agent may specify) to which the Facility Agent, the
Security Trustee or the Lenders may be entitled;


 


provided
that, notwithstanding anything to the contrary contained above in this Clause
27.18, upon the occurrence of any Event of Default listed in Clauses 27.9 (Similar Events) or 27.21 (US Obligors) in relation to any US
Obligor, all or any part of the Outstandings shall be immediately due and
payable (whereupon the same shall become so payable together with accrued
interest thereon and any other sums then owed by any Obligor under the Finance
Documents), any unutilised portion of the Facilities shall be immediately
cancelled and the corresponding Commitments of each Lender shall be reduced to
zero and the Facility Agent may exercise or direct the Security Trustee to
exercise any rights and remedies (including any right to demand cash collateral
by deposit in such interest-bearing account as the Facility Agent may specify)
to which the Facility Agent, the Security Trustee or the Lenders may be
entitled.


 


27.18                 Repayment
on Demand


 


If, pursuant to paragraph (a) of Clause 27.17 (Acceleration), the Facility Agent declares all or any part of
the Outstandings to be due and payable on demand of the Facility Agent, then,
and at any time thereafter, the Facility Agent may (and, if so instructed
by an Instructing Group, shall) by written notice to the Company:


 


(a)                                  require
repayment of all or the relevant part of the Outstandings on such date as
it may specify in such notice (whereupon the same shall become due and
payable on such date together with accrued interest thereon and any other sums
then owed by the Parent or any Obligor under the Finance Documents) or withdraw
its declaration with effect from such date as it may specify in such
notice; and/or


 


(b)                                  select
as the duration of any Interest Period or Term which begins whilst such
declaration remains in effect a period of 6 months or less.


 


27.19                 Vanilla
Clean-Up Period


 


If, during the Vanilla Clean-up Period, any matter or circumstance
exists in respect of any member of the Telewest Group which would, but for the
provisions of this Clause 27.19, constitute a breach of any representation
under Clause 21 (Representations and Warranties),
the breach of any covenant specified in Clauses 
24.10 (Pension Plans),
25.2 (Negative Pledge), 25.3 (Loans and Guarantees), 25.4 (Financial Indebtedness), 25.8 (Mergers), 25.9 (Joint Ventures), 25.10 (Transactions with
Affiliates) and 25.12 (Limitations
on Hedging) or an Event of Default by reason of Clause 27.5 (Cross Default), then such misrepresentation, breach of
covenant or Event of Default shall not give rise to a Default or Event of
Default unless:


 


(a)                                  NTL
or any of its Subsidiaries (excluding for these purposes any member of the
Telewest Group) has procured or specifically approved a breach of such
representations or covenants by a member of the Telewest Group; or


 


(b)                                  the
matter or circumstance constitutes a Material Adverse Effect; or


 


(c)                                  such
matter or circumstance continues to exist after the expiry of the Vanilla
Clean-up Period; or


 


(d)                                  the
breach is capable of remedy and NTL or the relevant member of the Telewest
Group is aware of the relevant circumstances at the time but fails to take
appropriate steps to remedy


 


157

















 


the same,


 


provided that any matter contained in this Clause 27.19 shall be
without prejudice to the rights of the Lender in respect of any breach of
representation, covenant or default which continues to exist or arises after
the expiry of the Vanilla Clean-Up Period.


 


27.20                 Baseball
Clean-Up Period


 


If, during the Baseball Clean-up Period, any matter or circumstance
exists in respect of any member of the Baseball Group which would, but for the
provisions of this Clause 27.20, constitute a breach of any representation
under Clause 21 (Representations and Warranties),
the breach of any covenant specified in Clauses 
24.10 (Pension Plans),
25.2 (Negative Pledge), 25.3 (Loans and Guarantees), 25.4 (Financial Indebtedness), 25.8 (Mergers), 25.9 (Joint Ventures), 25.10 (Transactions with
Affiliates) and 25.12 (Limitations
on Hedging) or an
Event of Default by reason of Clause 27.5 (Cross Default),
then such misrepresentation, breach of covenant or Event of Default shall not
give rise to a Default or Event of Default unless:


 


(a)                                  the
Ultimate Parent or any of its Subsidiaries (excluding for these purposes any
member of the Baseball Group) has procured or specifically approved a breach of
such representations or covenants by a member of the Baseball Group; or


 


(b)                                  the
matter or circumstance constitutes a Material Adverse Effect; or


 


(c)                                  such
matter or circumstance continues to exist after the expiry of the Baseball
Clean-up Period; or


 


(d)                                  the
breach is capable of remedy and the Baseball Bidcos are aware of the relevant
circumstances at the time but fail to take appropriate steps to remedy the
same,


 


provided that any matter contained in this Clause 27.20 shall be
without prejudice to the rights of the Lender in respect of any breach of
representation, covenant or default which continues to exist or arises after
the expiry of the Baseball Clean-Up Period.


 


27.21                 US
Obligors


 


Notwithstanding Clause 27.17 (Acceleration),
if any US Obligor shall commence a voluntary case concerning itself under the
US Bankruptcy Code, or an involuntary case is commenced against any US Obligor
and the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case, or a custodian (as defined in the US
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of any US Obligor, or any order of relief or other order
approving any such case or proceeding is entered, the Facilities shall cease to
be available to such US Obligor, all Advances outstanding to such US Obligor
shall become immediately due and payable and such US Obligor shall be required
to provide cash cover in respect of all Documentary Credits issued for its
account in each case automatically and without any further action by any party
hereto.


 


28.                               DEFAULT INTEREST


 


28.1                        Consequences
of Non-Payment


 


If any sum due and payable by the Parent or any Obligor under this
Agreement is not paid on the due date therefor in accordance with the
provisions of Clause 33 (Payments) or if
any sum due and payable by an Obligor pursuant to a judgment of any court in
connection with this Agreement is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of such
judgment and ending on the Business Day on which the obligation of such Obligor
to pay


 


158

















 


the Unpaid Sum is discharged shall be divided into successive periods,
each of which (other than the first) shall start on the last day of the
preceding such period (which shall be a Business Day) and the duration of each
of which shall (except as otherwise provided in this Clause 28) be selected by
the Facility Agent.


 


28.2                        Default
Rate


 


During each such period relating thereto as is mentioned in Clause 28.1
(Consequences of Non-Payment) an Unpaid
Sum shall bear interest at the rate per annum which is the sum from time to
time of 1%, the Applicable Margin (provided that if any Unpaid Sum is not
directly referable to a particular Facility the Applicable Margin shall be the
Revolving Facility Margin), the Associated Costs Rate at such time and EURIBOR
or LIBOR, as the case may be, on the Quotation Date therefor, provided
that:


 


(a)                                  if,
for any such period, EURIBOR or LIBOR, as the case may be, cannot be
determined, the rate of interest applicable to each Lender’s portion of such
Unpaid Sum shall be the rate per annum which is the sum of 1%, the Applicable
Margin, (as aforesaid), and the Associated Costs Rate at such time and the rate
per annum that shall be notified to the Facility Agent by such Lender as soon
as practicable after the beginning of such period as being that which expresses
as a percentage rate per annum the cost to such Lender of funding from whatever
sources it may reasonably select its portion of such Unpaid Sum during
such period; and


 


(b)                                  if
such Unpaid Sum is all or part of an Advance which became due and payable
on a day other than the last day of an Interest Period or Term relating
thereto, the first Interest Period applicable to it shall be of a duration
equal to the unexpired portion of that Interest Period or Term and the rate of
interest applicable thereto from time to time during such Interest Period shall
be that which exceeds by 1% the rate which would have been applicable to it had
it not so fallen due.


 


28.3                        Maturity
of Default Interest


 


Any interest which shall have accrued under Clause 28.2 (Default Rate) in respect of an Unpaid Sum shall be due and
payable and shall be paid by the Obligor owing such sum at the end of the
period by reference to which it is calculated or on such other dates as the
Facility Agent may specify by written notice to such Obligor.


 


28.4                        Construction
of Unpaid Sum


 


Any Unpaid Sum shall (for the purposes of this Clause 28 (Default Interest), Clause 18 (Increased
Costs), Clause 31 (Borrowers’ Indemnities)
and Schedule 6 (Associated Costs Rate))
be treated as an advance and accordingly in those provisions the term “Advance”
includes any Unpaid Sum and the term “Interest Period” and “Term”, in relation
to an Unpaid Sum, includes each such period relating thereto as is mentioned in
Clause 28.1 (Consequences of Non-Payment).


 


29.                               GUARANTEE AND INDEMNITY


 


29.1                        Guarantee


 


With effect from the Merger Closing Date or if later, the date on which
it accedes to this Agreement in such capacity, subject to Clause 29.9 (Limitation of Telewest Group Guarantees), each Guarantor
irrevocably and unconditionally guarantees, jointly and severally, to each of
the Finance Parties the due and punctual payment by each of the Borrowers of
all sums payable by it under each of the Finance Documents and agrees that
promptly on demand it will pay to the Facility Agent each and every sum of
money which any of the Borrowers is at any time liable to pay to any Finance
Party under or pursuant to any Finance Document and which has become due and
payable but has not been


 


159

















 


paid at the time such demand is made and provided that before any such
demand is made on a Restricted Guarantor, demand for payment of the relevant
sum shall first have been made on the relevant Borrower.


 


29.2                        Indemnity


 


With effect from the Merger Closing Date, or if later, the date upon
which it accedes to this Agreement in such capacity, subject to Clause 29.9 (Limitation of Telewest Group Guarantees), each Guarantor
(other than a Restricted Guarantor) irrevocably and unconditionally agrees,
jointly and severally, as primary obligor and not only as surety, to indemnify
and hold harmless each Finance Party on demand by the Facility Agent from and
against any loss incurred by such Finance Party as a result of any of the
obligations of the Borrowers under or pursuant to any Finance Document being or
becoming void, voidable, unenforceable or ineffective as against any Borrower
for any reason whatsoever (whether or not known to that Finance Party or any
other person) the amount of such loss being the amount which the Finance Party
suffering it would otherwise have been entitled to recover from such Borrower.


 


29.3                        Continuing
and Independent Obligations


 


The obligations of each Guarantor under this Agreement shall constitute
and be continuing obligations which shall not be released or discharged by any
intermediate payment or settlement of all or any of the obligations of each of
the Borrowers under the Finance Documents, shall continue in full force and
effect until the unconditional and irrevocable payment and discharge in full of
all amounts owing by each of the Borrowers under each of the Finance Documents
and are in addition to and independent of, and shall not prejudice or merge
with, any other security (or right of set-off) which any Finance Party may at
any time hold in respect of such obligations or any of them.


 


29.4                        Avoidance
of Payments


 


Where any release, discharge or other arrangement in respect of any
obligation of any Borrower, or any Security held by any Finance Party therefor,
is given or made in reliance on any payment or other disposition which is
avoided or must be repaid (whether in whole or in part) in an insolvency,
liquidation or otherwise and whether or not any Finance Party has conceded or
compromised any claim that any such payment or other disposition will or should
be avoided or repaid (in whole or in part), the provisions of this Clause 29
shall continue as if such release, discharge or other arrangement had not been
given or made.


 


29.5                        Immediate
Recourse


 


None of the Finance Parties shall be obliged, before exercising or enforcing
any of the rights conferred upon them in respect of the Guarantors by this
Agreement or by Law, to seek to recover amounts due from any Borrower or to
exercise or enforce any other rights or Security any of them may have or
hold in respect of any of the obligations of any Borrower under any of the
Finance Documents save that no demand for any payment may be made on any
Restricted Guarantor unless such demand has first been made on the relevant
Borrower.


 


29.6                        Waiver
of Defences


 


Neither the obligations of the Guarantors contained in this Agreement
nor the rights, powers and remedies conferred on the Finance Parties in respect
of the Guarantors by this Agreement or by Law shall be discharged, impaired or
otherwise affected by:


 


(a)                                  the
winding-up, dissolution, administration or re-organisation of any Borrower or
any other person or any change in the status, function, control or ownership of
any Borrower or any such person;


 


160

















 


(b)                                  any
of the obligations of any Borrower or any other person under any Finance
Document or any Security held by any Finance Party therefor being or becoming
illegal, invalid, unenforceable or ineffective in any respect;


 


(c)                                  any
time or other indulgence being granted to or agreed (i) to or with any
Borrower or any other person in respect of its obligations or (ii) in
respect of any security granted under any Finance Documents;


 


(d)                                  unless
otherwise agreed, any amendment to, or any variation, waiver or release of, any
obligation of, or any Security granted by, any Borrower or any other person
under any Finance Document;


 


(e)                                  any
total or partial failure to take, or perfect, any Security proposed to be taken
in respect of the obligations of any Borrower or any other person under the Finance
Documents;


 


(f)                                    any
total or partial failure to realise the value of, or any release, discharge,
exchange or substitution of, any security held by any Finance Party in respect
of any Borrower’s obligations under any Finance Document; or


 


(g)                                 any
other act, event or omission which might operate to discharge, impair or
otherwise affect any of the obligations of any of the Guarantors under this
Agreement or any of the rights, powers or remedies conferred upon the Finance
Parties or any of them by this Agreement or by Law.


 


29.7                        No
Competition


 


Until all amounts which may become payable by the Borrowers under
or in connection with the Finance Documents have been paid in full, any rights
which any Guarantor may at any time have by way of contribution or indemnity
in relation to any of the obligations of the Borrowers under any of the Finance
Documents or to claim or prove as a creditor of any Borrower or any other
person or its estate in competition with the Finance Parties or any of them,
shall be exercised by such Guarantor only if and to the extent that the
Facility Agent so requires and in such manner and upon such terms as the
Facility Agent may specify and each Guarantor shall hold any moneys,
rights or security held or received by it as a result of the exercise of any
such rights on trust for the Facility Agent for application in or towards
payment of any sums at any time owed by the Borrowers under any of the Finance
Documents as if such moneys, rights or security were held or received by the
Facility Agent under this Agreement.


 


29.8                        Appropriation


 


To the extent any Finance Party receives any sum from any Guarantor in
respect of the obligations of any of the other Obligors under any of the
Finance Documents which is insufficient to discharge all sums which are then
due and payable in respect of such obligations of such other Obligors, such
Finance Party shall not be obliged to apply any such sum in or towards payment
of amounts owing by such other Obligor under any of the Finance Documents, and
any such sum may, in the relevant Finance Party’s discretion, be credited to a
suspense or impersonal account and held in such account pending the application
from time to time (as the relevant Finance Party may think fit) of such
sums in or towards the discharge of such liabilities owed to it by such other
Obligor under the Finance Documents as such Finance Party may select
provided that such Finance Party shall promptly make such application upon
receiving sums sufficient to discharge all sums then due and payable to it by
such other Obligor under the Finance Documents.


 


161

















 


29.9                        Limitation
of Telewest Group Guarantees


 


The guarantees and indemnities provided by any member of the Telewest
Group hereunder shall not extend to any sums payable under any of the Finance
Documents relating to the B Facility or any sums payable eminating therefrom,
until the relevant member(s) of the Telewest Group have complied with the
provisions of Sections 151 to 158 of the Act with respect to such B Facility.


 


29.10                 Limitation
of Liabilities of United States Guarantors


 


Each Restricted Guarantor and each of the Finance Parties (by its
acceptance of the benefits of the guarantee under this Clause 29) hereby
confirms its intention that this guarantee should not constitute a fraudulent
transfer or conveyance for the purposes of any bankruptcy, insolvency or
similar law, the United States Uniform Fraudulent Conveyance Act or any
similar Federal, state or foreign law. To effectuate the foregoing intention,
each Restricted Guarantor and each of the Finance Parties (by its acceptance of
the benefits of the guarantee under this Clause 29) hereby irrevocably agrees
that its obligations under this Clause 29 shall be limited to the maximum amount
as will, after giving effect to such maximum amount and all other (contingent
or otherwise) liabilities of such Restricted Guarantor that are relevant under
such laws, and after giving effect to any rights to contribution pursuant to
any agreement providing for an equitable contribution among such Restricted
Guarantor and the other Guarantors, result in the obligations of such
Restricted Guarantor in respect of such maximum amount not constituting a
fraudulent transfer or conveyance.


 


29.11                 Droit de Discussion and Droit de Division


 


(a)                                  Any right which at any time any Guarantor may have
under the existing or future laws of Jersey whether by virtue of the droit de
discussion or otherwise to require that recourse be had to the assets of any
other person before any claim is enforced against such Guarantor in respect of
the obligations assumed by such Guarantor under or in connection with any
Finance Document is hereby waived.


 


(b)                                  Any right which at any time any Guarantor may have
under the existing or future laws of Jersey whether by virtue of the droit de
division or otherwise to require that any liability under any guarantee or
indemnity given in or in connection with any Finance Document be divided or
apportioned with any other person or reduced in any manner whatsoever is hereby
waived.


 


30.                               AGENTS


 


30.1                        Appointment
of the Agents


 


(a)                                  Each
of the other Finance Parties appoints the Facility Agent to act as its agent
under and in connection with the Finance Documents and authorises the Facility
Agent to exercise the rights, powers, authorities and discretions specifically
delegated to it under or in connection with the Finance Documents together with
any other incidental rights, powers, authorities and discretions.


 


(b)                                  Each
of the other Finance Parties appoints the US Paying Agent to act as its agent
under and in connection with the Finance Documents.


 


30.2                        Appointment
of the Administrative Agent


 


Each of the other Finance Parties appoints the Administrative Agent to
act as its agent under and in connection with the Finance Documents.


 


162

















 


30.3                        Duties
of the Facility Agent/US Paying Agent


 


(a)                                  The
Facility Agent and/or the US Paying Agent, as applicable, shall promptly inform each
Lender of the contents of any notice or document received by it in its capacity
as Facility Agent from the Parent or any of the Obligors under the Finance
Documents.


 


(b)                                  The
Facility Agent shall promptly notify the Lenders of the occurrence of any Event
of Default or any default by an Obligor in the due performance of or compliance
with its obligations under any Finance Document upon becoming aware of the
same.


 


(c)                                  If
so instructed by an Instructing Group, the Facility Agent shall refrain from
exercising any power or discretion vested in it as agent under any Finance
Document.


 


(d)                                  The
duties of the Facility Agent and the US Paying Agent, as the case may be,
under the Finance Documents are, save to the extent otherwise expressly
provided, solely mechanical and administrative in nature.


 


30.4                        Role
of the Bookrunners, the Arrangers and the Administrative Agent


 


Except as specifically provided in the Finance Documents, none of the
Bookrunners, the Arrangers, or the Administrative Agent shall have any
obligations of any kind to any other party under or in connection with any
Finance Document.


 


30.5                        No
Fiduciary Duties


 


(a)                                  Nothing
in the Finance Documents constitutes the Agents or any of the Arrangers as a
trustee or fiduciary of any other person.


 


(b)                                  Neither
the Agents nor any of the Arrangers shall be bound to account to any Lender for
any sum or the profit element of any sum received by it for its own account.


 


30.6                        Business
with the Group


 


Any of the Agents and the Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business with any
member of the Group.


 


30.7                        Discretion
of the Agents


 


(a)                                  The
Agents may rely on:


 


(i)                                    any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and


 


(ii)                                any
statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.


 


(b)                                  The
Agents may assume, unless it has received notice to the contrary in its
capacity as agent for the Lenders, that:


 


(i)                                    no
Default has occurred;


 


(ii)                                any
right, power, authority or discretion vested in this Agreement upon any party,
the Lenders or an Instructing Group has not been exercised; and


 


163

















 


(iii)                            any
notice or request made by the Obligors’ Agent is made on behalf of and with the
consent and knowledge of the Parent and all the Obligors.


 


(c)                                  The
Agents may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.


 


(d)                                  The
Agents may act in relation to the Finance Documents through its personnel
and agents.


 


(e)                                  The
Facility Agent may execute on behalf of any L/C Bank any Documentary
Credit issued under this Agreement.


 


30.8                        Instructing
Group’s Instructions


 


(a)                                  Unless
a contrary indication appears in a Finance Document, the Facility Agent (or the
US Paying Agent, as applicable) shall (i) act in accordance with any
instructions given to it by an Instructing Group or Revolving Facility
Instructing Group, as applicable (or, if so instructed by an Instructing Group
or Revolving Facility Instructing Group, as applicable, refrain from acting or
exercising any right, power, authority or discretion vested in it as Facility Agent)
and (ii) shall not be liable to any Finance Party for any act (or
omission) if it acts (or refrains from taking any action) in accordance with
such an instruction of an Instructing Group.


 


(b)                                  Unless
a contrary indication appears in a Finance Document, any instructions given by (i) an
Instructing Group will be binding on all the Finance Parties or (ii) a
Revolving Facility Instructing Group will be binding on all the Lenders under
the Revolving Facility.


 


(c)                                  The
Facility Agent (or the US Paying Agent, as applicable) may refrain from
acting in accordance with the instructions of an Instructing Group, a Revolving
Facility Instructing Group, or, if appropriate, the Lenders until it has
received such security or collateral as it may require for any cost, loss
or liability which it may incur in complying with such instructions.


 


(d)                                  In
the absence of instructions from an Instructing Group, a Revolving Facility
Instructing Group, or, if appropriate, the Lenders, the Facility Agent (or the
US Paying Agent, as applicable) may act (or refrain from taking action) as
it considers to be in the best interests of the Lenders.


 


(e)                                  None
of the Agents shall be authorised to act on behalf of a Lender in any legal or
arbitration proceedings relating to any Finance Document without first
obtaining the Lender’s consent to do so.


 


30.9                        No
Responsibility


 


None of the Agents or the Arrangers shall be:


 


(a)                                  responsible
for the adequacy, accuracy and/or completeness of any information (whether oral
or written) supplied by any Finance Party or an Obligor or any other person in
or in connection with any Finance Document, including the Information
Memoranda, the Agreed Business Plan and any Budget; or


 


(b)                                  responsible
for the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Finance Document.


 


164

















 


30.10                 Exclusion
of Liability


 


(a)                                  Without
limiting paragraph (b) of this Clause, the Agents will not be liable to
any Finance Party for any action taken by it under or in connection with any
Finance Document, unless directly caused by its negligence or wilful
misconduct.


 


(b)                                  Each
of the Lenders agrees that it will not take any proceedings, or assert or seek
to assert any claim, against any officer, employee or agent of either of the
Agents in respect of any claim it might have against the Facility Agent or in
respect of any act or omission of any kind by that officer, employee or agent
in relation to any Finance Document and agrees that any officer, employee or
agent of the Facility Agent may enforce this provision.


 


(c)                                  The
Facility Agent will not be liable for any failure to notify any person of any
matter referred to in Clause 14.8 (Notification)
or any delay (or any related consequences) in crediting an account with an
amount required under the Finance Documents to be paid by it if it has taken
all reasonable steps to comply with Clause 14.8 (Notification) and taken all necessary steps as soon as
reasonably practicable to comply with the regulations or operating procedures
of any recognised clearing or settlement system used by it for that purpose.


 


30.11                 Lender’s
Indemnity


 


Each Lender shall (in its relevant Proportion (as determined at all
times for these purposes in accordance with paragraph (c) of the
definition of “Proportion”) indemnify the Agents from time to time on demand by
the Agents against any cost, loss or liability incurred by such Agent
(otherwise than by reason of its negligence or wilful misconduct) in acting as
an Agent under the Finance Documents (unless it has been reimbursed therefor by
an Obligor pursuant to the terms of the Finance Documents).


 


30.12                 Resignation


 


(a)                                  The
Facility Agent or the US Paying Agent may resign and appoint one of its
Affiliates acting through an office in the United Kingdom (or, in the case of
the US Paying Agent, acting through an office in the State of New York) as
successor Agent by giving notice to the Lenders and the Company.


 


(b)                                  The
Facility Agent or the US Paying Agent may resign without having designated
a successor as agent under paragraph (a) above (and shall do so if so
required by an Instructing Group) by giving notice to the Lenders and the
Company, in which case an Instructing Group may appoint a successor
Facility Agent (acting through an office in the United Kingdom), or a successor
US Paying Agent (acting through an office in the State of New York), approved
by the Company or the US Borrower, acting reasonably. If an Instructing Group
has not appointed a successor Facility Agent or successor US Paying Agent in
accordance with this paragraph (b) within 30 days after notice of
resignation was given, the Facility Agent may appoint a successor Facility
Agent (acting through an office in the United Kingdom) and/or the US Paying
Agent may appoint a successor US Paying Agent (acting through an office in
the State of New York), approved by the Company, acting reasonably.


 


(c)                                  The
retiring Facility Agent or US Paying Agent, as applicable shall, at the
Borrowers’ cost, make available to its successor such documents and records and
provide such assistance as its successor may reasonably request for the
purposes of performing its functions as Facility Agent or US Paying Agent, as
applicable under the Finance Documents.


 


(d)                                  The
resignation notice of the Facility Agent or the US Paying Agent shall only take
effect upon the appointment of a successor Facility Agent or US Paying Agent,
as applicable .


 


165

















 


(e)                                  Upon
the appointment of a successor, the retiring Facility Agent or US Paying Agent,
as applicable shall be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of this Clause 30. The
Facility Agent’s successor or US Paying Agent’s successor, as applicable, and
each of the other parties to this Agreement shall have the same rights and
obligations amongst themselves as they would have had if such successor
Facility Agent or successor US Paying Agent, as applicable had been an original
party as Facility Agent or as US Paying Agent, as the case may be.


 


(f)                                    Unless
otherwise agreed between the Administrative Agent and the Borrower, the
Administrative Agent shall automatically resign (and no successor shall need to
be appointed) on the day upon which it ceases to be a party to this Agreement
in the capacity as a Lender.


 


30.13                 Confidentiality


 


(a)                                  The
Facility Agent (in acting as agent for the Finance Parties), the US Paying
Agent (in acting as US paying agent for the Lenders to the US Borrower) and the
Administrative Agent (in acting as agent for the Lenders) shall be regarded as
acting through its agency division which shall be treated as a separate entity
from any other of its divisions or departments.


 


(b)                                  If
information is received by another division or department of the Facility
Agent, US Paying Agent or the Administrative Agent it may be treated as
confidential to that division or department and the Facility Agent, US Paying
Agent or the Administrative Agent, as the case may be, shall not be deemed
to have notice of it.


 


(c)                                  Notwithstanding
any other provision of any Finance Document to the contrary, the Finance
Parties are not obliged to disclose to any other person (i) any
confidential information or (ii) any other information if the disclosure
would, or might in its reasonable opinion, constitute a breach of any Law.


 


(d)                                  Notwithstanding
any other provision of any Finance Document, the parties (and each employee,
representative or other agent of the parties) may disclose to any and all
persons, without limitation of any kind, the tax treatment and any facts that may be
relevant to the tax structure of the transaction, provided, however, that no
party (and no employee, representative, or other agent thereof) shall disclose
any other information that is not relevant to understanding the tax treatment
and tax structure of the transaction (including the identity of any party and
any information that could lead another to determine the identity of any
party), or any other information to the extent that such disclosure could
reasonably result in a violation of any applicable securities law.


 


30.14                 Facility
Office


 


Each of the Agents may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility Office unless it
has received not less than 5 Business Days’ prior notice from that Lender to
the contrary in accordance with the terms of this Agreement.


 


30.15                 Lenders’
Associated Costs Details


 


To the extent applicable, each Lender shall supply the Facility Agent
and/or the US Paying Agent, as applicable, with any information required by the
Facility Agent in order to calculate the Associated Costs Rate in accordance
with Schedule 6 (Associated Costs Rate).


 


30.16                 Credit
Appraisal by the Lenders


 


Without affecting the responsibility of the Parent or any Obligor for
information supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to each of the Agents, the


 


166

















 


Bookrunners and the Arrangers that it has been, and will continue to
be, solely responsible for making its own independent appraisal and
investigation of all risks arising under or in connection with any Finance
Document including but not limited to:


 


(a)                                  the
financial condition, status and nature of each member of the Group;


 


(b)                                  the
legality, validity, effectiveness, adequacy or enforceability of any Finance Document
and any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance Document;


 


(c)                                  whether
that Lender has recourse, and the nature and extent of that recourse, against
any party or any of its respective assets under or in connection with any
Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document; and


 


(d)                                  the
adequacy, accuracy and/or completeness of the Information Memoranda, the Agreed
Business Plan and each Budget and any other information provided by the Agents,
the Bookrunners, the Arrangers or by any other person under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document.


 


30.17                 Deduction
from Amounts Payable by the Agents


 


If any amount is due and payable by any party to the Facility Agent,
the US Paying Agent or the Administrative Agent under any Finance Document the
Facility Agent, the US Paying Agent or the Administrative Agent, as the case may be,
may, after giving notice to that party, deduct an amount not exceeding that
amount from any payment to that party which the Facility Agent, the US Paying
Agent or the Administrative Agent would otherwise be obliged to make under the
Finance Documents and apply the amount deducted in or towards satisfaction of
the amount owed. For the purposes of the Finance Documents that party shall be
regarded as having received such payment without any such deduction.


 


30.18                 Obligors’
Agent


 


(a)                                  The
Parent and each Obligor (other than the Company and the US Borrower)
irrevocably authorises the Company to act on its behalf as its agent in
relation to the Finance Documents and irrevocably authorises:


 


(i)                                    the
Company on its behalf to supply all information concerning itself, its
financial condition and otherwise to the relevant persons contemplated under
this Agreement and to give all notices and instructions to execute on its
behalf any Finance Document and to enter into any agreement in connection with
the Finance Documents notwithstanding that the same may affect the Parent
or such Obligor, without further reference to or the consent of the Parent or
such Obligor; and


 


(ii)                                each
Finance Party to give any notice, demand or other communication to be given to
or served on the Parent or such Obligor pursuant to the Finance Documents to
the Company on its behalf,


 


and in each such case the
Parent or such Obligor will be bound thereby as though the Parent or such
Obligor itself had supplied such information, given such notice and
instructions, executed such Finance Document and agreement or received any such
notice, demand or other communication.


 


167

















 


(b)                                  Every
act, omission, agreement, undertaking, settlement, waiver, notice or other
communication given or made by the Obligors’ Agent under any Finance Document,
or in connection with this Agreement (whether or not known to the Parent or any
other Obligor, as the case may be, and whether occurring before or after
such person became party to this Agreement), shall be binding for all purposes
on the Parent and all other Obligors (other than the US Borrower) as if the
Parent or the other Obligors (other than the US Borrower) had expressly made,
given or concurred with the same. In the event of any conflict between any
notices or other communications of the Obligors’ Agent and the Parent or any
other Obligor (other than the US Borrower), those of the Obligors’ Agent shall
prevail.


 


30.19                 Co-operation
with the Agents


 


Each Lender and each Obligor will co-operate with each of the Agents to
complete any legal requirements imposed on the Agents in connection with the
performance of its duties under this Agreement and shall supply any information
requested by the Agents in connection with the proper performance of those
duties provided that neither the Parent nor any Obligor shall be under any
obligation to provide any information the supply of which would be contrary to
any confidentiality obligation binding on any member of the Group or prejudice
the retention of legal privilege in such information and provided further that
neither the Parent nor any Obligor shall (and the Company shall procure that no
member of the Bank Group shall) be able to deny the Agents any such information
by reason of it having entered into a 
confidentiality undertaking which would prevent it from disclosing, or
be able to claim any legal privilege in respect of, any financial information
relating to itself or the Group.


 


30.20                 “Know
your client” checks


 


Nothing in this Agreement shall oblige the either of the Agents or the
Arrangers to carry out any “know your client” or other applicable anti-money
laundering checks in relation to the identity of any person on behalf of any
Lender and each Lender confirms to the each of the Agents, the Bookrunners and
the Arrangers that it is solely responsible for any such checks it is required
to carry out and that it may not rely on any statement in relation to such
checks made by any other person.


 


30.21                 US
Paying Agent


 


The Facility Agent shall delegate to any of its affiliates or appoint
one or more agents in the US for the purposes of facilitating any payments
required to be made to the US Borrower under this Agreement (and the US
Borrower has the right to consent to such delegation). Any such delegation or
appointment may be made upon such terms and conditions (including the
power to sub-delegate or appoint any sub-agents) and subject to such
restrictions as the Facility Agent and the US Borrower may think
fit in the interests of the Finance Parties and the Facility Agent shall not be
bound to supervise, or be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of any such delegate,
sub-delegate, agent or sub-agent. The Facility Agent and the US Borrower may agree,
without the prior consent of any other person, such amendments which are of an
administrative or technical nature, as may be necessary for the purposes
of giving effect to any such delegation or appointment and such amendments,
once made, shall be binding on each of Finance Parties.


 


168

















 


31.                               BORROWERS’ INDEMNITIES


 


31.1                        General
Indemnities


 


With effect from the Merger Closing Date, each of the Borrowers
undertake, on a joint and several basis, to indemnify:


 


(a)                                  each
of the Finance Parties against any out-of-pocket cost, claim, loss, expense
(including legal fees) or liability, which any of them may sustain or
incur as a consequence of the occurrence of any Default; and


 


(b)                                  each
Lender against any out-of-pocket loss it may suffer or incur as a result
of (i) its funding or making arrangements to fund its portion of an
Advance or (ii) its issuing or making arrangements to issue a Documentary
Credit or (iii) its funding or making arrangements to fund any Ancillary
Facility made available by it, in each case requested by any Borrower under
this Agreement but not made by reason of the operation of any one or more of
the provisions of this Agreement (save as a result of such Lender’s own gross
negligence or wilful default).


 


31.2                        Break
Costs


 


(a)                                  Each
Borrower shall, within 3 Business Days of demand by a Finance Party, pay to
that Finance Party its Break Costs attributable to all or any part of any
Advance or Unpaid Sum being paid by that Borrower on a day other than the last
day of an Interest Period or Term for that Advance or Unpaid Sum.


 


(b)                                  Each
Lender shall, as soon as reasonably practicable after a demand by the Facility
Agent, provide a certificate confirming the amount of its Break Costs for any
Interest Period or Term in which they accrue.


 


32.                               CURRENCY OF ACCOUNT


 


32.1                        Currency


 


Sterling is the currency of account and payment for each and every sum
at any time due from any Obligor under this Agreement provided that:


 


(a)                                  each
repayment of any Outstandings or Unpaid Sum (or part of it) shall be made
in the currency in which those Outstandings or Unpaid Sum are denominated on
their due date;


 


(b)                                  interest
shall be payable in the currency in which the sum in respect of which such
interest is payable was denominated when that interest accrued;


 


(c)                                  each
payment in respect of costs and expenses shall be made in the currency in which
the same were incurred; and


 


(d)                                  each
payment pursuant to Clause 17.3 (Tax Indemnity)
or Clause 18.1 (Increased Costs) shall be made in
the currency specified by the Finance Party claiming under it, acting
reasonably.


 


32.2                        Currency
Indemnity


 


If any sum due from the Parent or any Obligor under this Agreement or
any order or judgment given or made in relation to this Agreement 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


 


169

















 


Parent or such Obligor, (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, each Borrower agrees, with effect from the
Merger Closing Date, to indemnify and hold harmless each of the persons to whom
such sum is due from and against any loss suffered or incurred as a result of
any discrepancy between (x) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second currency
and (y) the rate or rates of exchange at which such person may in the
ordinary course of business purchase the first currency with the second
currency at the time of receipt of the sum paid to it in satisfaction, in whole
or in part, of any such order, judgment, claim or proof.


 


33.                               PAYMENTS


 


33.1                        Payment
to the Facility Agent and the US Paying Agent


 


On each date on which this Agreement requires an amount to be paid by
the Parent or any Obligor or any of the Lenders under this Agreement, the
Parent or such Obligor or, as the case may be, such Lender shall make the
same available to the Facility Agent or, in the case of payments by the US Borrower,
the US Paying Agent by payment in same day funds (or such other funds as may for
the time being be customary for the settlement of transactions in the relevant
currency) to such account or bank as the Facility Agent or US Paying Agent, as
applicable (acting reasonably) may have specified for this purpose and any
such payment which is made for the account of another person shall be made in
time to enable the Facility Agent or US Paying Agent, as applicable to make
available such person’s portion of it to such other person in accordance with
Clause 33.2 (Same Day Funds).


 


33.2                        Same
Day Funds


 


Save as otherwise provided in this Agreement, each payment received by
the Facility Agent or US Paying Agent, as applicable for the account of another
person shall be made available by the Facility Agent to such other person (in
the case of a Lender, for the account of its Facility Office) for value the
same day by transfer to such account of such person with such bank in a
Participating Member State or London (or for payments in Dollars or any
Optional Currency, in the applicable financial centre) as such person shall
have previously notified to the Facility Agent or US Paying Agent, as
applicable, for this purpose.


 


33.3                        Clear
Payments


 


Any payment required to be made by the Parent or any Obligor under this
Agreement shall be calculated without reference to any set-off or counterclaim
and shall be made free and clear of, and without any deduction for or on
account of, any set-off or counterclaim.


 


33.4                        Partial
Payments


 


If the Facility Agent or US Paying Agent, as applicable, receives a
payment that is insufficient to discharge all the amounts then due and payable
by the Parent or any Obligor under the Finance Documents, the Facility Agent or
US Paying Agent, as applicable, shall, unless otherwise instructed by an
Instructing Group, apply that payment towards the obligations of that Obligor
under the Finance Documents in the following order:


 


(a)                                  first,
in payment in or towards payment pro rata of any
unpaid fees, costs and expenses incurred by the Facility Agent or US Paying
Agent, as applicable, and the L/C Bank under the Finance Documents;


 


(b)                                  secondly,
in or towards payment pro rata of any
accrued interest or commission due but unpaid under any Finance Document;


 


170

















 


(c)                                  thirdly,
in or towards payment pro rata of any
principal due but unpaid under any Finance Document; and


 


(d)                                  fourthly,
in or towards payment pro rata of any
other sum due but unpaid under the Finance Documents,


 


and such application shall override any appropriation made by an
Obligor.


 


33.5                        Indemnity


 


Where a sum is to be paid under the Finance Documents to the Facility
Agent or US Paying Agent, as applicable, for the account of another person, the
Facility Agent or US Paying Agent, as applicable, shall not be obliged to make
the same available to that other person (or to enter into or perform any
exchange contract in connection therewith) until it has been able to establish
to its satisfaction that it has actually received such sum, but if it does so
and it proves to be the case that it had not actually received such sum, then
the person to whom such sum (or the proceeds of such exchange contract) was (or
were) so made available shall on request refund the same to the Facility Agent
or the US Paying Agent, as applicable, together with an amount sufficient to
indemnify and hold harmless the Facility Agent or US Paying Agent, as
applicable, from and against any cost or loss it may have suffered or
incurred by reason of its having paid out such sum (or the proceeds of such
exchange contract) prior to its having received such sum. This indemnity shall
only apply to the Obligors with effect from the Merger Closing Date.


 


33.6                        Notification
of Payment


 


Without prejudice to the liability of each party to this Agreement to
pay each amount owing by it under this Agreement on the due date therefor,
whenever a payment is expected to be made by any of the Finance Parties, the
Facility Agent or the US Paying Agent, as applicable, shall give notice prior
to the expected date for such payment, notify all such Finance Parties of the
amount, currency and timing of such payment.


 


33.7                        Business
Days


 


(a)                                  Any
payment which is due to be made on a day that is not a Business Day shall be
made on the immediately succeeding Business Day in the same calendar month (if
there is one) or the immediately preceding Business Day (if there is not).


 


(b)                                  During
any extension of the due date for payment of any principal or an Unpaid Sum
under this Agreement, interest is payable on such amount at the rate payable on
the original due date.


 


34.                               SET-OFF


 


34.1                        Right
to Set-off


 


With effect from the Merger Closing Date, the Parent and each of the
Obligors authorises each Lender to apply any credit balance to which the Parent
or such Obligor is entitled on any account of the Parent or such Obligor with
that Lender in satisfaction of any sum due and payable from the Parent or such
Obligor to such Lender under this Agreement but unpaid; for this purpose, each
Lender is authorised to purchase with the moneys standing to the credit of any
such account such other currencies as may be necessary to effect such
application.


 


34.2                        No
Obligation


 


No Lender shall be obliged to exercise any right given to it by Clause
34.1 (Right to Set-Off).


 


171

















 


35.                               SHARING AMONG THE FINANCE PARTIES


 


35.1                        Payments
to Finance Parties


 


If a Finance Party (a “Recovering
Finance Party”) receives or recovers any amount from the Parent or
any Obligor other than in accordance with Clause 33 (Payments)
and applies that amount to a payment due under the Finance Documents then:


 


(a)                                  the
Recovering Finance Party shall, within 3 Business Days, notify details of the
receipt or recovery to the Facility Agent;


 


(b)                                  the
Facility Agent shall determine whether the receipt or recovery is in excess of
the amount the Recovering Finance Party would have been paid had the receipt or
recovery been received or made by the Facility Agent and distributed in accordance
with Clause 33.4 (Partial Payments), without taking
account of any tax which would be imposed on the Facility Agent in relation to
the receipt, recovery or distribution; and


 


(c)                                  the
Recovering Finance Party shall, within 3 Business Days of demand by the
Facility Agent, pay to the Facility Agent an amount (the “Sharing Payment”) equal to such receipt or
recovery less any amount which the Facility Agent determines may be
retained by the Recovering Finance Party as its share of any payment to be made,
in accordance with Clause 33.4 (Partial Payments).


 


35.2                        Redistribution
of Payments


 


The Facility Agent shall treat the Sharing Payment as if it had been
paid by the Parent or the relevant Obligor and shall distribute it between the
Finance Parties (other than the Recovering Finance Party) in accordance with
Clause 33.4 (Partial Payments).


 


35.3                        Recovering
Finance Party’s Rights


 


(a)                                  On a
distribution by the Facility Agent under Clause 35.2 (Redistribution
of Payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.


 


(b)                                  If
and to the extent that the Recovering Finance Party is not able to rely on its
rights under paragraph (a) above, the Parent or the relevant Obligor shall
be liable to the Recovering Finance Party for a debt equal to the Sharing
Payment which is immediately due and payable.


 


35.4                        Reversal
of Redistribution


 


If any part of the Sharing Payment received or recovered by a
Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:


 


(a)                                  each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 35.2 (Redistribution of Payments) shall, upon the request of the Facility Agent, pay to the
Facility Agent for account of that Recovering Finance Party an amount equal to
its share of the Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Finance Party for its share of any interest on the
Sharing Payment which that Recovering Finance Party is required to pay); and


 


(b)                                  that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the Parent or the relevant Obligor will be
liable to the reimbursing Finance Party for the amount so reimbursed.


 


172

















 


35.5                        Exceptions


 


(a)                                  This
Clause 35 shall not apply to the extent that the Recovering Finance Party would
not, after making any payment pursuant to this Clause, have a valid and enforceable
claim against the Parent or the relevant Obligor.


 


(b)                                  A
Recovering Finance Party is not obliged to share with any other Finance Party
under this Clause 35, any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration proceedings,
if:


 


(i)                                    it
notified such other Finance Party of the legal or arbitration proceedings; and


 


(ii)                                such
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable
having received notice of it or did not take separate legal or arbitration
proceedings.


 


35.6                        Ancillary
Lenders


 


(a)                                  This
Clause 35 shall not apply to any receipt or recovery by a Lender in its
capacity as an Ancillary Lender at any time prior to service of notice under
Clause 27.17 (Acceleration).


 


(b)                                  Following
service of notice under Clause 27.17 (Acceleration),
this Clause 35 shall apply to all receipts or recoveries by Ancillary Lenders
except to the extent that the receipt or recovery represents a reduction from
the Designated Gross Amount for an Ancillary Facility to its Designated Net
Amount.


 


36.                               CALCULATIONS AND ACCOUNTS


 


36.1                        Day
Count Convention


 


Interest and commitment commission shall accrue from day to day and
shall be calculated on the basis of a year of 365 days (in the case of amounts
denominated in Sterling) or 360 days (in the case of amounts denominated in any
other currency) (as appropriate or, in any case where market practice differs,
in accordance with market practice) and the actual number of days elapsed and
any Tax Deductions required to be made from any payment of interest shall be
computed and paid accordingly.


 


36.2                        Reductions


 


Any repayment of any Advance denominated in an Optional Currency shall
reduce the amount of such Advance by the amount of such Optional Currency
repaid and shall reduce the Sterling Amount of such Advance proportionately.


 


36.3                        Reference
Banks


 


Save as otherwise provided in this Agreement, on any occasion a
Reference Bank or Lender fails to supply the Facility Agent with an interest
rate quotation required of it under the foregoing provisions of this Agreement,
the rate for which such quotation was required shall be determined from those
quotations which are supplied to the Facility Agent.


 


36.4                        Maintain
Accounts


 


Each Lender shall maintain in accordance with its usual practice
accounts evidencing the amounts from time to time lent by and owing to it under
this Agreement.


 


173

















 


36.5                        Control
Accounts


 


The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded:


 


(a)                                  the
amount and the Sterling Amount of any Advance or Unpaid Sum and the face amount
and the Sterling Amount of any Documentary Credit, and each Lender’s share in
it;


 


(b)                                  the
Sterling Amount of the Ancillary Facility Commitment (if any) of each Lender ;


 


(c)                                  the
amount of all principal, interest and other sums due or to become due from each
of the Obligors to any of the Lenders under the Finance Documents and each
Lender’s share in it; and


 


(d)                                  the
amount of any sum received or recovered by the Facility Agent under this
Agreement and each Lender’s share in it.


 


36.6                        Prima
Facie Evidence


 


In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 36.4 (Maintain Accounts) and
Clause 36.5 (Control Accounts) shall, in the
absence of manifest error, be prima  facie evidence of the existence and amounts of the specified
obligations of the Obligors.


 


36.7                        Certificate
of Finance Party


 


A certificate of a Finance Party as to the amount for the time being
required to indemnify it against any Tax Liability pursuant to Clause 17.3 (Tax Indemnity) or any Increased Cost pursuant to Clause 18.1
(Increased Costs) shall, in the absence
of manifest error, be prima facie
evidence of the existence and amounts of the specified obligations of the
Borrowers.


 


36.8                        Certificate
of the Facility Agent


 


A certificate of the Facility Agent as to the amount at any time due
from any Borrower under this Agreement (or the amount which, but for any of the
obligations of any Borrower under this Agreement being or becoming void,
unenforceable or ineffective, at any time, would have been due from such
Borrower under this Agreement) shall, in the absence of manifest error, be prima facie evidence for the purposes of Clause 29 (Guarantee and Indemnity).


 


36.9                        Certificate
of L/C Bank


 


A certificate of an L/C Bank as to the amount paid out or at any time
due in respect of a Documentary Credit shall, absent manifest error, be prima facie evidence of the payment of such amounts or (as
the case may be) of the amounts outstanding in any legal action or
proceedings arising in connection therewith.


 


37.                               ASSIGNMENTS AND TRANSFERS


 


37.1                        Successors
and Assignees


 


This Agreement shall be binding upon and enure to the benefit of each
party to this Agreement and its or any subsequent successors, permitted
assignees and Transferees.


 


174

















 


37.2                        Assignment
or Transfers by Obligors


 


None of the rights, benefits and obligations of an Obligor under this
Agreement shall be capable of being assigned or transferred and each Obligor
undertakes not to seek to assign or transfer any of its rights, benefits and
obligations under this Agreement in each case, other than to another Obligor
and, in each case, provided that no Event of Default is continuing or would
arise as a result of such assignment or transfer.


 


37.3                        Assignments
or Transfers by Lenders


 


(a)                                  Any
Lender may, at any time, assign all or any of its rights and benefits under the
Finance Documents in accordance with Clause 37.4 (Assignments)
or transfer all or any of its rights, benefits and obligations under the
Finance Documents in accordance with Clause 37.5 (Transfer
Deed) provided that:


 


(i)                                    the
prior consultation of the Company shall be required in respect of any
assignment or transfer arising prior to the achievement of Successful
Syndication;


 


(ii)                                the
prior consent of the Company is received in respect of any assignment or
transfer after the achievement of a Successful Syndication, such consent not to
be unreasonably withheld, provided that:


 


(A)                               such
consent shall be deemed to have been given if not declined in writing within 10
Business Days of a written request by any Lender to the Company;


 


(B)                               no
consent shall be required in the case of any assignment or transfer by a Lender
to its Affiliate which is either a Qualifying UK Lender (in the case of a participation
to a UK Borrower) or a US Accession Lender (in the case of a participation to
the US Borrower); and


 


(C)                               no
consent shall be required in the case of any assignment or transfer to any
third party at any time after the occurrence of a Major Event of Default which
is continuing; and


 


(iii)                            the
proposed Transferee makes one of the representations set out in
paragraph 8 of the Transfer Deed and provides the Company with the
information required under paragraph 9 of the Transfer Deed.


 


(b)                                  No
Lender shall be entitled to:


 


(i)                                    effect
any assignment or transfer:


 


(A)                               in
respect of any portion of its Commitment and/or Outstandings under any
individual Facility in an amount of less than £1,000,000, $1,000,000 or
€1,000,000 (in the case of participations in Advances denominated in Sterling,
Dollars or Euro respectively) (or its equivalent as at the date of such
assignment or transfer);


 


(B)                               which
would result in it or the proposed assignee or transferee holding an aggregate
participation of more than zero but less than £5,000,000 (or its equivalent as
at the date of such assignment or transfer) in the Facilities, save that an
assignment or transfer may be made to or by a trust, fund or other
non-bank entity which customarily participates in the institutional market
which would result in such entity holding an aggregate participation of at
least £1,000,000, $1,000,000 or €1,000,000 (in the case of participations in


 


175

















 


Advances denominated in
Sterling, Dollars or Euro respectively) in the Facilities; or


 


(C)                               in
relation to its participation in the Revolving Facility other than to the
extent such transfers and assignments are on a pro rata basis as between the
relevant Lender’s Commitment under and participation in Outstandings under the
Revolving Facility;


 


(ii)                                in
relation to any sub-participation of its rights and obligations under the
Facilities, relinquish some or all of its voting rights in respect of the
Facilities to any person in respect of any such sub-participation other than
voting rights in respect of the matters referred to in paragraphs (b), (c), (d) or
(e) of Clause 43.4 (Consent).


 


(c)                                  Only
a Lender which is a US Accession Lender may lend at any time to the US
Borrower (and only in respect of the B Facility and the B1 Facility) and the
maximum amount of Outstandings lent to such US Borrower at any one time shall
not exceed an amount equal to 20 per cent. of the aggregate Commitments as of
the Original Execution Date.


 


(d)                                  To
the extent that:


 


(i)                                    any
US Accession Lender becomes a Qualifying UK Lender or assigns any of its
interest as Lender to a Qualifying UK Lender; or


 


(ii)                                any
Qualifying UK Lender ceases to be a Qualifying UK Lender or assigns any of its
interest as Lender to any person which is not a Qualifying UK Lender,


 


the Company may require
the relevant Borrower to whom such Lender has made Advances (a “Transferor Borrower”) to novate its obligations under all
Outstandings owed to that Lender to another Borrower (the “Transferee
Borrower”), which shall be entitled to pay interest to that Lender
without any withholding.


 


(e)                                  If:


 


(i)                                    any
sum payable to any Lender by an Obligor is required to be increased under
Clause 17.1 (Tax Gross-up);


 


(ii)                                a
Lender claims indemnification from a Borrower under the provisions of Clause
17.3 (Tax Indemnity) or Clause 18.1 (Increased Costs); or


 


(iii)                            any
Lender becomes a Non-Consenting Lender or a Non-Funding Lender,


 


the Company may within
90 days of such requirement or position being notified to it, request that such
Lender assigns or transfers all of its rights and obligations under this
Agreement at par (including any rights and obligations it may have in its
capacity as a Hedge Counterparty) to any person selected by the Company that
has agreed to accept such assignment or transfer, and such Lender shall effect
such assignment or transfer within 10 Business Days of such request.


 


(f)                                    For
the purposes of satisfying the minimum hold requirement set out in paragraph
(b)(i) of this Clause 37.3, any participations held by funds advised
and/or managed by a common entity may be aggregated.


 


(g)                                 Notwithstanding
any other provision of this Agreement, the consent of the L/C Bank shall be
required (such consent not to be unreasonably withheld or delayed) for any
assignment or transfer of any Lender’s rights and/or obligations under the
Revolving Facility provided that


 


176

















 


in relation to any
assignment or transfer required by the Borrower under paragraph (c), the L/C
Bank may not withhold such consent unless, acting reasonably, the reason
for so doing relates to the creditworthiness of the proposed assignee or
transferee.


 


(h)                                 Notwithstanding
any other provision of this Clause 37.3 (Assignments or Transfers
by Lenders), no assignment or transfer shall be permitted to settle
or otherwise become effective within the period of five Business Days prior to (a) the
end of any Interest Period or (b) any Repayment Date.


 


37.4                        Assignments


 


If any Lender wishes to assign all or any of its rights and benefits
under the Finance Documents, unless and until the relevant assignee has agreed
with the other Finance Parties that it shall be under the same obligations
towards each of them as it would have been under if it had been an original party
to the Finance Documents as a Lender, such assignment shall not become
effective and the other Finance Parties shall not be obliged to recognise such
assignee as having the rights against each of them which it would have had if
it had been such a party to this Agreement.


 


37.5                        Transfer
Deed


 


(a)                                  If
any Lender wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents, such transfer may be effected by
novation through the delivery to the Facility Agent of a duly completed and
duly executed Transfer Deed.


 


(b)                                  The
Facility Agent shall only be obliged to execute a Transfer Deed delivered to it
pursuant to paragraph (a) above, upon its satisfaction with the results of
all “know your client” or other applicable anti-money laundering checks
relating to the identity of any person that it is required to carry out in
relation to such Transferee.


 


(c)                                  Upon
its execution of the Transfer Deed pursuant to paragraph (b) above on the
later of the Transfer Date specified in such Transfer Deed and the fifth
Business Day after (or such earlier Business Day endorsed by the Facility Agent
on such Transfer Deed falling on or after) the date of execution of such
Transfer Deed by the Facility Agent:


 


(i)                                    to
the extent that in such Transfer Deed the Lender party to it seeks to transfer
its rights, benefits and obligations under the Finance Documents, the Ultimate
Parent, the Parent, each of the Obligors and such Lender shall be released from
further obligations towards one another under the Finance Documents to that
extent and their respective rights against one another shall be cancelled to
that extent (such rights and obligations being referred to in this Clause 37.5
as “discharged rights and obligations”);


 


(ii)                                the
Ultimate Parent, the Parent, each of the Obligors and the Transferee party to
it shall assume obligations towards one another and/or acquire rights against
one another which differ from the discharged rights and obligations only
insofar as the Ultimate Parent, the Parent, such Obligor and such Transferee
have assumed and/or acquired the same in place of the Ultimate Parent, the
Parent, such Obligor and such Lender;


 


(iii)                            the
other Finance Parties and the Transferee shall acquire the same rights and
benefits and assume the same obligations between themselves as they would have
acquired and assumed had such Transferee been an original party to the Finance
Documents as a Lender with the rights, benefits and obligations acquired or
assumed by it as a result of such transfer;


 


177

















 


(iv)                               all
payments due hereunder from the Parent or any Obligor shall be due and payable
to such Transferee and not to the transferring Lender; and


 


(d)                                  such
Transferee shall become a party to this Agreement as a Lender.


 


37.6                        Transfer
Fee


 


On the date upon which a transfer takes effect pursuant to
Clause 37.5 (Transfer Deed)
the Transferee in respect of such transfer shall pay to the Facility Agent for
its own account a transfer fee of £1,500 provided that this fee shall not be
payable by any Lender that becomes a party to this Agreement prior to the
Syndication Date.


 


37.7                        Disclosure
of Information


 


(a)                                  Each
of the Agents, the Security Trustee, the Bookrunners, the Arrangers, the
Lenders, the L/C Bank and any Ancillary Facility Lender agrees to maintain the
confidentiality of all information received from the Ultimate Parent or any
member of the Group relating to the Ultimate Parent or any member of the Group
or its business other than any such information that:


 


(i)                                    is
or becomes public knowledge other than as a direct result of any breach of this
Clause; or


 


(ii)                                is
available to the Agents, the Security Trustee, the Bookrunners, the Arrangers,
the Lenders, the L/C Bank or such Ancillary Facility Lender on a non-confidential
basis prior to receipt thereof from the relevant member of the Group; or


 


(iii)                            is
lawfully obtained by any of the Agents, the Security Trustee, the Bookrunners,
the Arrangers, the Lenders, the L/C Bank and any Ancillary Facility Lender
after that date of receipt other than from a source which is connected with the
Group and which, as far as the relevant recipient thereof is aware, has not
been obtained in violation of, and is not otherwise subject to, any obligation
of confidentiality.


 


(b)                                  Notwithstanding
paragraph (a) of this Clause 37.7 any Lender may disclose to any of
its Affiliates, to any actual or potential assignee or Transferee, to any
person who may otherwise enter into contractual relations with such Lender
in relation to this Agreement or any person to whom, and to the extent that,
information is required to be disclosed by any applicable Law, such information
about the Ultimate Parent, the Parent, the Obligors or the Group as a whole as
such Lender shall consider appropriate provided that any such Affiliate, actual
or potential assignee or Transferee or other person who may otherwise
enter into contractual relations in relation to this Agreement shall first have
entered into a confidentiality undertaking on substantially the same terms as
this Clause 37.7.


 


37.8                        No
Increased Obligations


 


If:


 


(a)                                  a
Lender assigns or transfers any of its rights or obligations under the Finance
Documents or changes its Facility Office; and


 


(b)                                  as a
result of circumstances existing at the date of the assignment, transfer or
change of Facility Office, the Parent or an Obligor would be obliged to make a
payment to the assignee, Transferee or the Lender acting through its new
Facility Office under Clause 17.1 (Tax Gross-Up),
17.3 (Tax Indemnity) or Clause 18 (Increased Costs),


 


178

















 


then the assignee, Transferee or the Lender acting through its new
Facility Office shall only be entitled to receive payment under those Clauses
to the same extent as the assignor, transferor or the Lender acting through its
previous Facility Office would have been if the assignment, transfer or change
had not occurred.


 


37.9                        Notification


 


The Facility Agent shall, within 10 Business Days of receiving a
Transfer Deed or a notice relating to an assignment pursuant to Clause 37.4 (Assignments) or a notice from a Lender or the giving by the
Facility Agent of its consent, in each case, relating to a change in such
Lender’s Facility Office, notify the US Paying Agent and the Borrowers of any
such assignment, transfer or change in Facility Office, as the case may be.


 


38.                               COSTS AND EXPENSES


 


38.1                        Transaction
Costs


 


Each Borrower shall, from time to time no later than 10 Business Days
after demand from the Facility Agent (unless the relevant cost or expense is
being queried by a Borrower in good faith), reimburse the Facility Agent, the
Security Trustee and each of the Arrangers for all reasonable out-of-pocket
costs and expenses (including reasonable legal fees and disbursements of legal counsel,
any value added tax thereon and all travel and other reasonable out-of-pocket
expenses) incurred by them in connection with the negotiation, preparation,
execution, perfection, printing and distribution of the Finance Documents and
the completion of the transactions therein contemplated and the syndication of
the Facilities prior to the Syndication Date (including publicity expenses) up
to the levels agreed with the Company.


 


38.2                        Preservation
and Enforcement Costs


 


Each Borrower shall, from time to time on demand of the Facility Agent,
reimburse each Finance Party for all third party costs and expenses (including
legal fees and any value added tax thereon) incurred in or in connection with
the preservation and/or enforcement of any of the rights of such Finance Party
under the Finance Documents provided that any such costs and expenses incurred
in connection with the preservation of such rights are reasonable.


 


38.3                        Stamp
Taxes


 


Each Borrower shall pay all stamp, registration, documentary and other
taxes (including any penalties, additions, fines, surcharges or interest
relating thereto) to which any of the Finance Documents or any judgment given
in connection therewith is or at any time may be subject and shall with
effect from the Merger Closing Date and from time to time thereafter within 10
Business Days of demand from the Facility Agent, indemnify the Finance Parties
against any liabilities, costs, claims and expenses resulting from any failure
to pay or any delay in paying those taxes. The Facility Agent shall be entitled
(but not obliged) to pay those taxes (whether or not they are its primary
responsibility) and to the extent that it does so claim under this Clause 38.3.


 


38.4                        Amendments,
Consents and Waivers


 


If an Obligor requests any amendment, consent or waiver in accordance
with Clause 43 (Amendments), the relevant Obligor
shall, on demand of the Facility Agent, reimburse the Finance Parties for all
third party costs and expenses (including legal fees) incurred by any of the
Finance Parties in responding to or complying with such request.


 


179

















 


38.5                        Lenders’
Indemnity


 


If any Obligor fails to perform any of its obligations under this
Clause 38, each Lender shall indemnify and hold harmless each of the Agents,
the Arrangers and/or the Security Trustee from and against its Proportion (as
determined at all times for these purposes in accordance with paragraph (c) of
the definition of “Proportion”) of any loss incurred by any of them as a result
of such failure and the relevant Obligor shall forthwith reimburse each Lender
for any payment made by it pursuant to this Clause.


 


38.6                        Value
Added Tax


 


(a)                                  All
amounts expressed to be payable under any Finance Document by any Obligor to a
Finance Party shall be exclusive of any VAT. If VAT is chargeable on any supply
made by a Finance Party to any Obligor under any Finance Document (whether that
supply is taxable pursuant to the exercise of an option or otherwise), the
relevant Finance Party shall provide a VAT invoice to the Obligor and that
Obligor shall pay to that Finance Party (in addition to and at the same time as
paying that consideration) the VAT as further consideration.


 


(b)                                  No
payment or other consideration to be made or furnished to any Obligor pursuant
to or in connection with any Finance Document may be increased or added to
by reference to (or as a result of any increase in the rate of) any VAT which
shall be or may become chargeable in respect of any taxable supply.


 


(c)                                  Where
a Finance Document requires any party to reimburse a Finance Party for any
costs or expenses, that party shall also pay any amount of those costs or
expenses incurred referable to VAT chargeable thereon.


 


39.                               REMEDIES AND WAIVERS


 


No failure to exercise, nor any delay in exercising, on the part of
the Finance Parties or any of them, any right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise thereof or the exercise
of any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies provided
by Law.


 


40.                               NOTICES AND DELIVERY OF INFORMATION


 


40.1                        Writing


 


Each communication to be made under this Agreement shall be made in
writing and, unless otherwise stated, shall be made by fax, telex or letter.


 


40.2                        Giving
of Notice


 


Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall in the case of any person other than a
Lender (unless that other person has by 10 Business Days’ written notice
to the Agents specified another address) be made or delivered to that other
person at the address identified with its signature below or, in the case of a Lender,
at the address from time to time designated by it to the Agents for the purpose
of this Agreement (or, in the case of a Transferee at the end of the Transfer
Deed to which it is a party as Transferee) and shall be deemed to have been
made or delivered when despatched (in the case of any communication made by
fax) or (in the case of any communication made by letter) when left at the
address or (as the case may be) 5 Business Days after being deposited in
the post postage prepaid in an envelope addressed to it at that address
provided that any communication or document to be made or delivered to the
Agents shall be effective only when received by the Agents and then only if the
same is expressly marked for


 


180

















 


the attention of the department or officer identified with the Agents’
signature below (or such other department or officer as the relevant Agent
shall from time to time specify by not less than 10 Business Days’ prior
written notice to the Company for this purpose).


 


40.3                        Use
of Websites/E-mail


 


(a)                                  An
Obligor may (and upon request by any of the Agents, shall) satisfy its
obligations under this Agreement to deliver any information in relation to
those Lenders (the “Website Lenders”)
who have not objected to the delivery of information electronically by posting
this information onto an electronic website designated by the Company and the
Facility Agent (the “Designated Website”)
or by e-mailing such information to the Agents, if:


 


(i)                                    the
Agents expressly agree that they will accept communication and delivery of any
documents required to be delivered pursuant to this Agreement by this method;


 


(ii)                                in
the case of posting to the Designated Website, the Company and the Agents are
aware of the address of, and any relevant password specifications for, the
Designated Website; and


 


(iii)                            the
information is in a format previously agreed between the Company and each of
the Agents.


 


(b)                                  If
any Lender (a “Paper Form Lender”)
objects to the delivery of information electronically then the Agents shall
notify the Company accordingly and the Company shall supply the information to
the Agents (in sufficient copies for each Paper Form Lender) in paper
form.


 


(c)                                  The
Facility Agent shall supply each Website Lender with the address of, and any
relevant password specifications for, the Designated Website following
designation of that website by the Company and the Facility Agent.


 


(d)                                  Any
Website Lender may request, through the Facility Agent, one paper copy of
any information required to be provided under this Agreement which is posted
onto the Designated Website. The Company shall comply with any such request
within 10 Business Days.


 


(e)                                  Subject
to the other provisions of this Clause 40.3, any Obligor may discharge its
obligation to supply more than one copy of a document under this Agreement by
posting one copy of such document to the Designated Website or e-mailing one
copy of such document to the Facility Agent.


 


(f)                                    For
the purposes of paragraph (a) above, the Agents hereby expressly agree
that:


 


(i)                                    they
will accept delivery of documents required to be delivered under Clause 22 (Financial Information) by the posting of
such documents to the Designated Website or by email delivery to the Agents;
and


 


(ii)                                they
have agreed to the format of the information required to be delivered under
Clause 22 (Financial Information).


 


40.4                        Electronic
Communication


 


(a)                                  Any
communication to be made between the Agents and any Lender under or in
connection with the Finance Documents may be made by electronic mail or
other electronic means, if the relevant Agent and the relevant Lender:


 


181

















 


(i)                                    agree
that, unless and until notified to the contrary, this is to be an accepted form of
communication;


 


(ii)                                notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means; and


 


(iii)                            notify
each other of any change to their address or any other such information
supplied by them.


 


(b)                                  Any
electronic communication made between the Agents and a Lender will be effective
only when actually received in readable form and in the case of any
electronic communication made by a Lender to an Agent only if it is addressed
in such a manner as the Facility Agent shall specify for this purpose.


 


40.5                        Certificates
of Officers


 


All certificates of officers of any company hereunder may be given
on behalf of the relevant company and in no event shall personal liability attach
to such an officer.


 


40.6                        Patriot
Act


 


Each Lender subject to the USA Patriot Act (Title 111 of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”)
hereby notifies the Ultimate Parent and the Company that pursuant to the
requirements of the Act, it is required to obtain, verify and record
information that identifies the Ultimate Parent, the Parent, the Company and
the other Obligors and other information that will allow such Lender to
identify Parent, the Company and the other Obligors in accordance with the Act.


 


41.                               ENGLISH LANGUAGE


 


Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation of it into English certified (by an officer of the
person making or delivering the same) as being a true and accurate translation
of it.


 


42.                               PARTIAL INVALIDITY


 


If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the Law of any jurisdiction, such
illegality, invalidity or unenforceability shall not affect:


 


(a)                                  the
legality, validity or enforceability of the remaining provisions of this
Agreement; or


 


(b)                                  the
legality, validity or enforceability of such provision under the Law of any other
jurisdiction.


 


43.                               AMENDMENTS


 


43.1                        Amendments
Generally


 


Except as otherwise provided in this Agreement, the Facility Agent, if
it has the prior written consent of an Instructing Group, and the Obligors
affected thereby, may from time to time agree in writing to amend any
Finance Document or to consent to or waive, prospectively or retrospectively,
any of the requirements of any Finance Document and any amendments, consents or
waivers so agreed shall be binding on all the Finance Parties and the Obligors.
For the avoidance of doubt, any amendments


 


182

















 


relating to this Agreement shall only be made in accordance with the
provisions of this Agreement and any amendments relating to a Hedging Agreement
shall only be made in accordance with the provisions of such Hedging Agreement,
in each case notwithstanding any other provisions of the Finance Documents.


 


43.2                        Amendments
relating to Baseball


 


Except as provided in Clause 43.4 (Consents), 43.5
(Technical Amendments), 43.6 (Guarantees and Security) and 43.7 (Release of
Guarantees and Security), the Facility Agent, if it has the prior
written consent of a Baseball Instructing Group (for this purpose, within the
meaning of paragraph (a) of that definition) and the Obligors affected
thereby, may agree in writing to amend or waive, or to consent to, any of
the following provisions with respect to the A1 Facility and B1 Facility:


 


(a)                                  the
definitions of “Baseball Acquisition”, “Baseball Bidcos”,  “Baseball Cash Bidco”, “Baseball Certain
Funds Period”, “Baseball Clean-Up Period”, “Baseball Drawstop Default”, “Baseball
Effective Date”, “Baseball Group”, “Baseball Implementation Agreement”, “Baseball
Press Release”, “Baseball Resolutions”, “Baseball Scheme”, “Baseball Scheme
Circular”, “Baseball Scheme Document”, “Baseball Shares”, “Baseball Stock Bidco”
and “Total Baseball Debt”.


 


(b)                                  paragraphs
(b) and (c) of Clause 2.1 (The Facilities);


 


(c)                                  paragraph
(b) of Clause 2.3 (Purpose);


 


(d)                                  Clause
3.2 (Baseball Conditions Precedent);


 


(e)                                  Clause
3.4 (Baseball Conditions Subsequent);


 


(f)                                    Clause
3.6 (Baseball Certain Funds Period);


 


(g)                                 Clause
27.20 (Baseball Clean-Up Period);


 


(h)                                 any
matter listed in Part 2 of Schedule 4 (Conditions
Precedent to First Baseball Utilisation) and Part 7 of Schedule 4
(Baseball Conditions Subsequent); and


 


(i)                                    any
other provision of this Agreement where the prior consent of a Baseball
Instructing Group is expressly required,


 


in each case, except to the extent that such amendment, waiver or consent
relates to Security. Any such amendments, consents or waivers so agreed shall
be binding on all the Finance Parties and the Obligors.


 


43.3                        Amendments
relating to Alternative Baseball Financing


 


The Facility Agent, if it has the prior written consent of all of the
Baseball Lenders (for this purpose, falling within the meaning of paragraph (b) of
that definition) and the Obligors affected thereby, may agree in writing
to any change to this Agreement, for the purposes of giving effect to a
commitment provided by such Baseball Lenders relating to any Alternative
Baseball Financing and the new facilities to be provided thereunder and the
associated Alternative Baseball Acquisition, which amends or replaces or is
intended to amend or replace the provisions set out in:


 


(a)                                  paragraphs
(b) and (c) of Clause 2.1 (The Facilities);


 


(b)                                  paragraph
(b) of Clause 2.3 (Purpose);


 


(c)                                  Clause
3.2 (Baseball Conditions Precedent);


 


183

















 


(d)                                  Clause
3.4 (Baseball Conditions Subsequent);


 


(e)                                  Clause
3.6 (Baseball Certain Funds Period);


 


(f)                                    Clause
27.20 (Baseball Clean-Up Period);


 


(g)                                 Clause
9 (Repayment of Term Facility Outstandings)
to the extent that such changes amend or replace provisions relating to the A1
Facility and B1 Facility, except where such changes provide for a final
maturity date in respect of the Alternative Baseball Facility which is earlier
than the Final Maturity Date in respect of the A Facility or in the case of
amortising debt, where the average life of such Alternative Bridge Facility
would be shorter than the average life of the A Facility;


 


(h)                                 Clause
11 (Voluntary Prepayment) and Clause 12 (Mandatory Prepayment and Cancellation) to the extent that
such changes amend or replace provisions relating to the A1 Facility and B1
Facility, and provided that such changes do not have the effect of altering the
timing or amount of payments payable to any Lender in respect of the A
Facility, B Facility or Revolving Credit Facility;


 


(i)                                    Clause
14 (Interest as Term Facility Advances) to
the extent that such changes amend or replace provisions relating to the A1
Facility or B1 Facility;


 


(j)                                    Clause
17.1 (Tax Gross Up) to the extent that such
changes relate to the Relevant Tax Jurisdiction of the relevant borrower of the
Alternative Baseball Financing;


 


(k)                                Clause
21 (Representations and Warranties) in
relation to the representations and warranties to be given to the Baseball
Lenders (for this purpose, falling within the definition of paragraph (b) of
such definition);


 


(l)                                    Clause
37 (Assignment or Transfers by Lenders) to
the extent that such changes relate to the assignment or transfer of any
commitments or outstandings under the Alternative Baseball Financing;


 


(m)                              Clause
43.2 (Amendments relating to Baseball);


 


(n)                                 Part 1
of Schedule 1 (Lenders and Commitments)
and Part 2 of Schedule 1 (Lenders Tax Status)
to the extent such changes amend or replace the then existing Lenders to
include the Baseball Lenders;


 


(o)                                  Part 2
of Schedule 4 (Conditions Precedent to
First Baseball Utilisation) and Part 7 of Schedule 4 (Baseball Conditions Subsequent) for the purposes of amending
and replacing the list of required documentary conditions precedent to the
Alternative Baseball Financing;


 


(p)                                  any
of the definitions contained in Clause 1.1 (Definitions)
for the purposes of removing all references to and all derivatives of the A1
Facility and the B1 Facility and incorporating such definitions as may be
necessary for the purposes of giving effect to the changes described in this
Clause 43.3, and


 


(q)                                  such
other amendments to or replacements of the provisions of this Agreement, which
are of a technical or mechanical nature provided that such amendments or
replacements do not prejudice the interests of the Lenders under the A
Facility, B Facility or Revolving Credit Facility.


 


184

















 


in each case, except to the extent that such amendment, waiver or
consent relates to Security. Any such amendments, consents or waivers so agreed
shall be binding on all the Finance Parties and the Obligors.


 


43.4                        Consents


 


An amendment, consent or waiver relating to the following matters may be
made with the prior written consent of each Lender affected thereby:


 


(a)                                  any
increase in the principal amount of any Commitment of such Lender;


 


(b)                                  a
reduction in the proportion of any amount received or recovered (whether by way
of set-off, combination of accounts or otherwise) in respect of any amount due
from the Parent or any Obligor under this Agreement to which such Lender is
entitled;


 


(c)                                  a
decrease in any Applicable Margin for, or the principal amount of, any Advance,
any Documentary Credit or any interest payment, fees or other amounts due under
this Agreement to such Lender from the Parent or any Obligor or any other party
to this Agreement;


 


(d)                                  any
change in the currency of account (other than a change resulting from the
United Kingdom becoming a Participating Member State);


 


(e)                                  unless
otherwise specified the deferral of the date for payment of any principal, interest,
fee or any other amount due under this Agreement to such Lender from the Parent
or any Obligor or any other party to this Agreement;


 


(f)                                    the
deferral of any Termination Date;


 


(g)                                 any
reduction to the percentage set forth in the definition of Instructing Group or
Baseball Instructing Group; or


 


(h)                                 a
change to any provision which contemplates the need for the consent or approval
of all the Lenders.


 


43.5                        Technical
Amendments


 


Notwithstanding any other provision of this Clause 43, the Facility
Agent may at any time without the consent or sanctions of the Lenders,
concur with the Company in making any modifications to any Finance Document,
which in the opinion of the Facility Agent would be proper to make provided
that the Facility Agent is of the opinion that such modification would not be
prejudicial to the position of any Lender and in the opinion of the Facility
Agent such modification is of a formal, minor or technical nature or is to
correct a manifest error. Any such modification shall be made on such terms as
the Facility Agent may determine, shall be binding upon the Lenders, and
shall be notified by the Company to the Lenders as soon as practicable
thereafter.


 


43.6                        Guarantees
and Security


 


A waiver of issuance or the release of any Guarantor from any of its
obligations under Clause 29 (Guarantee and Indemnity)
or a release of any Security under the Security Documents, in each case, other
than in accordance with the terms of any Finance Document shall require the
prior written consent of affected Lenders whose Available Commitments plus
Outstandings amount in aggregate to more than 90 per cent. of the Available
Facilities plus aggregate Outstandings.


 


185

















 


43.7                        Release
of Guarantees and Security


 


(a)                                  Subject
to paragraph (b) below, at the time of completion of any disposal by the
Parent or any Obligor of any shares, assets or revenues the Security Trustee
shall (and it is hereby authorised by the other Finance Parties to) at the
request of and cost of the relevant Obligor, execute such documents as may be
required to:


 


(i)                                    release
those shares, assets or revenues from Security constituted by any relevant
Security Document or certify that any floating charge constituted by any
relevant Security Documents over such assets, revenues or rights has not
crystallised; and


 


(ii)                                release
any person which as a result of that disposal, ceases to be the Parent or any
Obligor, from any guarantee, indemnity or Security Document to which it is a
party and its other obligations under any other Finance Document.


 


(b)                                  The
Security Trustee shall only be required under paragraph (a) above to grant
the release of any Security or to deliver a certificate of non-crystallisation
on account of a disposal as described in that paragraph described in that
paragraph if:


 


(i)                                    the
disposal is permitted under Clause 25.6 (Disposals) or
otherwise with the consent of an Instructing Group;


 


(ii)                                (to
the extent that any proceeds of that disposal are to be applied in repayment of
the Facilities) the Facility Agent has received (or is satisfied, acting
reasonably, that it will receive immediately following the disposal) the
appropriate amount of those proceeds; and


 


(iii)                            (to
the extent that the disposal is to be in exchange for replacement assets) the
Security Trustee has either received (or is satisfied, acting reasonably, that
it will receive immediately following the disposal) one or more duly executed
Security Documents granting Security over those replacement assets or is
satisfied, acting reasonably, that the replacement assets will be subject to
Security pursuant to any existing Security Documents.


 


(c)                                  If
at any time, a Compliance Certificate delivered pursuant to Clause 22.5(a) (Compliance Certificates) shows that the Obligors under this
Agreement at the relevant time represent a percentage which is greater than
that required to satisfy the 80% Security Test and the Company is able, at such
time, to demonstrate to the satisfaction of the Facility Agent (acting
reasonably) that upon the release of one or more specified Obligors from its
obligations under this Agreement the 80% Security Test would continue to be
satisfied, the Security Trustee shall (and it is hereby authorised by the other
Finance Parties to) at the request and cost of the Company, execute such
documents as may be required to release such specified Obligors from any
guarantees, indemnities and Security Documents to which it is a party and to
release it from its other obligations under any Finance Document.


 


(d)                                  Notwithstanding
the foregoing provisions of this Clause 43.7, in the event that the Company
elects to raise or incur any Stand Alone Baseball Financing in accordance with
the provisions of this Agreement, and immediately prior to such raising or
incurrence, any member of the Baseball Group has granted any guarantee and/or
security in respect of the Facilities, such member of the Baseball Group shall
be released from any such guarantee and/or security immediately prior to such
raising or incurrence, or in the event that the proceeds of such Stand Alone
Baseball Financing are being used to prepay A1 Facility Outstandings and B1
Facility Outstandings in accordance with Clause 11.1 (Voluntary
Prepayment), simultaneously with such prepayment.


 


186

















 


43.8                        Amendments
affecting the Facility Agent


 


Notwithstanding any other provision of this Agreement, the Facility
Agent shall not be obliged to agree to any amendment, consent  or waiver if the same would:


 


(a)                                  amend
or waive any provision of Clauses 30 (Agents), Clause
38 (Costs and Expenses) or this Clause 43;
or


 


(b)                                  otherwise
amend or waive any of the Facility Agent’s rights under this Agreement or
subject the Facility Agent to any additional obligations under this Agreement.


 


43.9                        Calculation
of Consent


 


Where a request for a waiver of, or an amendment to, any provision of
any Finance Document has been sent by the Facility Agent to the Lenders at the
request of an Obligor, each Lender that does not respond to such request for
waiver or amendment within 30 days after receipt by it of such request (or
within such other period as the Facility Agent and the Company shall specify),
shall be excluded from the calculation in determining whether the requisite
level of consent to such waiver or amendment was granted.


 


43.10                 Effect
of Baseball Acquisition


 


It is hereby agreed that upon closing of the Baseball Acquisition
(other than where the Baseball Acquisition is financed or refinanced through a
Stand Alone Baseball Financing) or the Alternative Baseball Acquisition, each
of the thresholds or baskets set out in the following provisions of this
Agreement shall be deemed to be increased to the amounts as set out below, in
each case, with immediate effect and without further consent or notice to the
Finance Parties or any other person:


 


(a)                                  the
threshold contained in paragraph (a)(i) of Clause 12.2 (Repayment from Net Proceeds) shall be increased from £30
million to £35 million;


 


(b)                                  the
general basket contained in paragraph (o) of Clause 25.2 (Negative
Pledge) shall be increased from £300 million to £330 million and the
sub-basket relating thereto shall be increased from £250 million to £275
million;


 


(c)                                  the
general basket contained in paragraph (s) of Clause 25.3 (Loans and
Guarantees) shall be increased from £75 million to £85 million;


 


(d)                                  the
basket contained in paragraph (g)(ii) of Clause 25.4 (Financial
Indebtedness) shall be increased from £75 million to £85 million;


 


(e)                                  the
basket contained in paragraph (k) of Clause 25.4 (Financial Indebtedness)
shall be increased from £150 million to £165 million;


 


(f)                                    the
general basket contained in paragraph (n) of Clause 25.4 (Financial
Indebtedness) shall be increased from £300 million to £330 million;
and


 


(g)                                 the
basket contained in paragraph (i) of Clause 25.6 (Disposals)
shall be increased from £300 million to £330 million.


 


43.11                 Division
of Tranches


 


The Facility Agent, at the request of the Bookunners, may at any
time after Successful Syndication, divide the B Facility and/or B1 Facility into
such number of tranches as they may deem necessary to reflect the relevant
currencies in which the B Facility and/or B1 Facility are drawn, and may make


 


187

















 


such amendments to this Agreement as are necessary to give effect to
such division, without the prior consent of any other party.


 


44.                               THIRD PARTY RIGHTS


 


(a)                                  A
person which is not a party to this Agreement (a “third party”) shall have no right to enforce any of its
provisions except that:


 


(i)                                    a
third party shall have those rights it would have had if the Contracts (Rights
of Third Parties) Act 1999 had not come into effect; and


 


(ii)                                each
of Clause 5.9 (Exclusion of Liability), Clause
17.3 (Tax Indemnity), Clause 18 (Increased Costs) and Clause 30.10 (Exclusion of
Liability) shall be enforceable by any third party referred to in
such clause as if such third party were a party to this Agreement.


 


(b)                                  The
parties to this Agreement may without the consent of any third party vary
or rescind this Agreement.


 


45.                               COUNTERPARTS


 


This Agreement may be executed in any number of counterparts and
all of such counterparts taken together shall be deemed to constitute one and
the same instrument.


 


46.                               GOVERNING LAW


 


46.1                        Governing
Law of Agreement


 


This Agreement shall be governed by, and construed in accordance with,
English Law.


 


46.2                        Governing
Law of Claims Against the US Borrower


 


Notwithstanding the provisions of Clause 46.1 (Governing Law of Agreement), any
proceedings in relation to a debt claim against the US Borrower shall be
governed by the internal laws of the state of New York, provided always that no
other Obligor may rely upon, or otherwise challenge any right of any
Finance Party on the basis of this Clause 46.2.


 


47.                               JURISDICTION


 


47.1                        Courts


 


(a)                                  The
US Borrower and each of the other parties to this Agreement irrevocably agrees
for the benefit of the Finance Parties that the courts of the State of New York
and/or the federal courts of the United States of America sitting in the State
of New York in diversity jurisdiction shall have exclusive jurisdiction to hear
and determine any suit, action or proceedings, and to settle any disputes which
may arise out of or in connection with the rights or obligations of the US
Borrower under the Finance Documents and, for such purposes, irrevocably
submits to the jurisdiction of such courts.


 


(b)                                  Each
of the parties to this Agreement irrevocably agrees for the benefit of each of
the Finance Parties that, except as set forth in paragraph (a) above, the
courts of England shall have exclusive jurisdiction to hear and determine any
suit, action or proceedings, and to settle any disputes, which may arise
out of or in connection with this Agreement (respectively “Proceedings” and “Disputes”) and, for such purposes,
irrevocably submits to the jurisdiction of such courts.


 


188

















 


47.2                        Waiver


 


Each of the Obligors other than the US Borrower irrevocably waives any
objection which it might now or hereafter have to Proceedings being brought or
Disputes settled in the courts of England and agrees not to claim that any such
court is an inconvenient or inappropriate forum. The US Borrower and each of
the Finance Parties irrevocably waives any objection which it might now or
hereafter have to Proceedings being brought by or against the US Borrower or
Disputes with the US Borrower being settled in the courts of the State of New
York.


 


47.3                        Service
of Process


 


Each of the Obligors (other than the US Borrower) which is not
incorporated in England agrees that the process by which any Proceedings are
begun may be served on it by being delivered in connection with any
Proceedings in England, to the Company at its registered office for the time
being and the Company, by its signature to this Agreement, accepts its
appointment as such in respect of each such Obligor. If the appointment of the
person mentioned in this Clause ceases to be effective in respect of any of the
Obligors the relevant Obligor shall immediately appoint a further person in
England to accept service of process on its behalf in England and, failing such
appointment within 15 days, the Facility Agent shall be entitled to
appoint such person by notice to the relevant Obligor. Nothing contained in
this Agreement shall affect the right to serve process in any other manner
permitted by Law.


 


47.4                        Proceedings
in Other Jurisdictions


 


Nothing in Clause 47.1(b) (Courts) shall
(and shall not be construed so as to) limit the right of the Finance Parties or
any of them to take Proceedings against any of the Obligors other than the US
Borrower in any other court of competent jurisdiction nor shall the taking of
Proceedings in any one or more jurisdictions preclude the taking of Proceedings
in any other jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable Law.


 


47.5                        General
Consent


 


Each of the Obligors consents generally in respect of any Proceedings
to the giving of any relief or the issue of any process in connection with such
Proceedings including the making, enforcement or execution against any property
whatsoever (irrespective of its use or intended use) of any order or judgment
which may be made or given in such Proceedings.


 


47.6                        Waiver
of Immunity


 


To the extent that any Obligor may in any jurisdiction claim for
itself or its assets or revenues immunity from suit, execution, attachment
(whether in aid of execution, before judgment or otherwise) or other legal
process and to the extent that in any such jurisdiction there may be
attributed to itself, its assets or revenues such immunity (whether or not
claimed), such Obligor irrevocably agrees not to claim, and irrevocably waives,
such immunity to the full extent permitted by the laws of such jurisdiction.


 


This Agreement has been entered into on the date
stated at the beginning of this Agreement.


 


189