NTL GROUP WHICH SHALL BE THE
COMPANY WHOSE SUBSIDIARIES ARE RESPONSIBLE FOR 100% OF CONSUMER REVENUES AND
WHICH HAS THE MOST DIRECT SUPERVISORY OR GOVERNANCE ROLE IN RESPECT OF SUCH
SUBSIDIARIES, REFERENCES TO NTL INCORPORATED IN THIS DEED SHALL BE DEEMED TO
REFER TO SUCH COMPANY, AND SUCH SUBSTITUTE QUARTERLY REPORTS SUBSTITUTE AND
ANNUAL REPORTS SHALL BE DEEMED TO BE QUARTERLY REPORTS AND ANNUAL REPORTS FOR
THE PURPOSES SET FORTH IN THIS DEED.
4.10
IN THE EVENT THAT VEL HAS REASONABLE GROUNDS
TO BELIEVE THAT THERE IS A MATERIAL ERROR IN THE CALCULATION OF THE ROYALTIES,
IT SHALL NOTIFY THE LICENSEE IN WRITING AND THE PARTIES SHALL USE REASONABLE
ENDEAVOURS TO RESOLVE ANY DISCREPANCIES RAISED BY VEL IN GOOD FAITH. ANY
DISPUTES AS TO THE CALCULATION OF ROYALTIES SHALL BE REFERRED TO THE DISPUTE
RESOLUTION PROCEDURE SET OUT IN CLAUSE 14.6. IF SUCH DISPUTE HAS NOT BEEN
RESOLVED AND THE MEDIATOR APPOINTED PURSUANT TO CLAUSE 14.6 DECIDES THAT A
MATERIAL ERROR MAY HAVE BEEN MADE, VEL SHALL BE ENTITLED TO CARRY OUT AN AUDIT
OF THE NTL GROUP'S BOOKS OF ACCOUNTS AS REASONABLY NECESSARY TO DETERMINE
WHETHER THERE HAS BEEN A MATERIAL ERROR IN THE STATEMENTS CERTIFIED UNDER
CLAUSES 4.2 AND 4.5 OR IN THE INFORMATION CERTIFIED UNDER CLAUSE 4.9. ANY SUCH
AUDIT SHALL BE CONDUCTED AS FOLLOWS:
(A)
UPON THE WRITTEN REQUEST OF VEL AND NOT MORE THAN
ONCE IN EACH PERIOD OF
31
TWELVE MONTHS, AND ONLY AFTER NTL INCORPORATED HAS PUBLISHED ITS ACCOUNTS FOR
ANY GIVEN FINANCIAL YEAR, THE LICENSEE SHALL PERMIT ONE OF KPMG AUDIT PLC, ERNST
AND YOUNG LLP, DELOITTE & TOUCHE LLP OR PRICEWATERHOUSECOOPERS LLP, OR THEIR
SUCCESSORS IN TITLE AS APPOINTED BY VEL AND AGREED BY THE LICENSEE (OR, FAILING
AGREEMENT, SUCH OTHER AUDITING FIRM OF INTERNATIONAL REPUTE AS IS AGREED), TO
HAVE ACCESS DURING NORMAL BUSINESS HOURS TO SUCH RECORDS OF THE NTL GROUP AS ARE
REASONABLY NECESSARY TO DETERMINE WHETHER THERE HAS BEEN ANY MATERIAL ERROR IN
CALCULATING THE ROYALTIES AND WHETHER THERE HAS BEEN AN OVERPAYMENT OR
UNDERPAYMENT OF ROYALTIES PURSUANT TO THIS DEED FOR ANY QUARTER IN SUCH
FINANCIAL YEAR OR FOR THE WHOLE OF THE FINANCIAL YEAR IN QUESTION. IN THE
ABSENCE OF MATERIAL ERROR, SUCH ACCOUNTING FIRM SHALL NOT BE ENTITLED TO
QUESTION THE APPLICATION OF THE NTL GROUP'S JUDGEMENT IN APPLYING THE ACCOUNTING
STANDARDS (OR THAT OF THEIR ACCOUNTANTS AND AUDITORS);
(B)
THE LICENSEE, AT THE COST OF VEL, SHALL AND SHALL
PROCURE THAT RELEVANT MEMBERS OF THE NTL GROUP WILL PROVIDE SUCH ASSISTANCE TO
THE ACCOUNTING FIRM AS IS REASONABLY NECESSARY IN CONNECTION WITH THE AUDIT,
PROVIDED THAT THE LICENSEE HAS RECEIVED REASONABLE ADVANCE NOTICE OF SUCH AUDIT
FROM VEL. SUCH ACCOUNTING FIRM SHALL EXECUTE A CONFIDENTIALITY UNDERTAKING NO
LESS STRICT THAN THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS DEED IN A
FORM REASONABLY ACCEPTABLE TO THE LICENSEE AND SUITABLE FOR THE PURPOSE OF
PERFORMING THE AUDIT UNDER THIS CLAUSE 4.10. SUCH ACCOUNTING FIRM SHALL CARRY
OUT ITS AUDIT WITHIN TWO (2) CALENDAR MONTHS