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England and Wales
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001-35961
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98-1112770
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer
Identification #)
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Redemption Price
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Year
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Dollar Notes
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2022
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102.750%
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2023
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101.375%
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2024
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100.688%
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2025 and thereafter
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100.000%
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Redemption Price
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Year
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Euro Notes
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2022
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101.750%
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2023
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100.875%
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2024
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100.438%
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2025 and thereafter
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100.000%
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Exhibit No.
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Name
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4.1
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4.2
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4.3
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4.4
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4.5
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4.6
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LIBERTY GLOBAL PLC
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By:
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/s/ RANDY L. LAZZELL
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Randy L. Lazzell
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Vice President
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Section 1.01
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Definitions 1
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Section 1.02
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Other Definitions 21
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Section 1.03
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References to Senior Credit Facility 22
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Section 1.04
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Rules of Construction 22
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Section 2.01
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Form and Dating 23
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Section 2.03
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Registrar and Paying Agent 26
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Section 2.04
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Holders to Be Treated as Owners; Payments of Interest 27
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Section 2.05
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Paying Agent to Hold Money 27
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Section 2.06
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Holder Lists 28
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Section 2.07
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Transfer and Exchange 28
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Section 2.08
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Replacement Notes 37
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Section 2.09
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Outstanding Notes 37
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Section 2.10
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Treasury Notes 37
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Section 2.11
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Temporary Notes 38
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Section 2.12
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Cancellation 38
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Section 2.13
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Defaulted Interest 38
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Section 2.14
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Common Code or ISIN Number 38
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Section 2.15
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Deposit of Moneys 39
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Section 3.01
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Notices to Trustee 39
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Section 3.02
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Selection of Notes to Be Redeemed or Purchased 39
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Section 3.03
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Notice of Redemption 40
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Section 3.04
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Effect of Notice of Redemption 41
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Section 3.05
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Deposit of Redemption or Purchase Price 41
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Section 3.06
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Notes Redeemed or Repurchased in Part 42
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Section 3.07
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Optional Redemption 42
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Section 3.08
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[Reserved] 45
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Section 3.09
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Redemption for Changes in Withholding Taxes 45
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Section 3.10
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Offer to Purchase by Application of Available Disposal Proceeds 46
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Section 3.11
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[Reserved] 48
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Section 3.12
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Open Market Purchases of Telenet Loans 48
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Section 3.13
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Optional Redemption upon Certain Tender Offers 49
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Section 4.01
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Payment of Notes 50
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Section 4.02
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Maintenance of Office or Agency 50
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Section 4.03
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Information 50
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Section 4.04
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Compliance Certificate 51
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Section 4.05
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Taxes 52
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Section 4.06
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Stay, Extension and Usury Laws 52
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Section 4.07
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Limitations with Respect to Business Activities of the Issuer 52
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Section 4.08
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Impairment of Liens 54
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Section 4.09
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Application of Available Disposal Proceeds 55
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Section 4.10
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Maintenance of the Existence of the Issuer 55
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Section 4.11
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Redemption Upon a Change of Control 56
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Section 4.12
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Minimum Period for Consents under Loan Documents 56
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Section 4.13
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Payments for Consent 56
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Section 4.14
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Amendments to Loan Documents to be applied equally to all Telenet
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Section 4.15
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Additional Amounts 57
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Section 4.16
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Additional Collateral Sharing Agreement 60
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Section 4.17
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Further Instruments and Acts 61
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Section 4.18
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Listing 61
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Section 5.01
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The Finco Loans 62
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Section 5.02
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Limited Recourse Obligations 62
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Section 6.01
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Events of Default 63
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Section 6.02
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Acceleration 65
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Section 6.03
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Other Remedies 65
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Section 6.04
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Waiver of Past Defaults 66
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Section 6.05
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Control by Majority 66
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Section 6.06
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Limitation on Suits 66
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Section 6.07
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Rights of Holders of Notes to Receive Payment 67
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Section 6.08
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[Reserved] 67
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Section 6.09
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Collection Suit by Trustee 67
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Section 6.10
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Trustee May File Proofs of Claim 67
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Section 6.11
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Priorities 68
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Section 6.12
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Undertaking for Costs 68
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Section 6.13
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Non Petition 68
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Section 7.01
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Duties of Trustee 69
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Section 7.02
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Rights of Trustee 70
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Section 7.03
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Individual Rights of Trustee 72
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Section 7.04
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Trustee’s Disclaimer 72
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Section 7.05
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Notice of Defaults 72
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Section 7.06
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Reports by Trustee to Holders of the Notes 73
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Section 7.07
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Compensation and Indemnity 73
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Section 7.08
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Replacement of Trustee or Security Trustee 74
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Section 7.09
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Successor Trustee by Merger, etc. 75
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Section 7.10
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Eligibility; Disqualification 75
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Section 7.11
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Preferential Collection of Claims Against Issuer 76
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Section 7.12
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Contractual Recognition of Bail-In Powers 76
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Section 7.13
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Tax Matters 77
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Section 8.01
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Belgian Issuer Accession 78
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Section 8.02
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Conditions of the Belgian Issuer Accession 78
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Section 8.03
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Miscellaneous 79
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Section 8.04
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Finco Loans Borrower Exchange. 80
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Section 9.01
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To the Senior Credit Facility, the 2017 Finco Accession Agreements or the New Finco Accession Agreements 81
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Section 9.02
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To this Indenture and the Notes Without Consent of Holders of Notes 83
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Section 9.03
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To this Indenture and the Notes With Consent of Holders of Notes 85
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Section 9.04
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Revocation and Effect of Consents 88
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Section 9.05
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Notation on or Exchange of Notes 88
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Section 9.06
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Trustee to Sign Amendments, etc. 88
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Section 10.01
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Notes Security Documents 88
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Section 10.02
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Release of Note Collateral 89
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Section 10.03
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Authorization of Actions to Be Taken by the Security Trustee 90
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Section 10.04
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Authorization of Receipt of Funds by the Security Trustee Under the Notes Security Documents 90
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Section 10.05
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Waiver of subrogation 90
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Section 10.06
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Termination of Security Interest 90
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Section 10.07
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Security Trustee 91
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Section 10.08
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Liability 91
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Section 10.09
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Indemnity 91
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Section 10.10
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Defaults 92
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Section 10.11
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Communications 92
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Section 10.12
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Professional Advisers 92
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Section 10.13
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Own Participation 92
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Section 10.14
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[Reserved] 93
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Section 10.15
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[Reserved] 93
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Section 10.16
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Enforcement Costs 93
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Section 10.17
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Further Action 93
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Section 10.18
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Luxembourg Provisions 93
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Section 11.01
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Satisfaction and Discharge 94
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Section 11.02
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Application of Trust Money 95
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Section 12.01
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Notices 95
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Section 12.02
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Communication by Holders of Notes with Other Holders of Notes 97
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Section 12.03
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Certificate and Opinion as to Conditions Precedent 97
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Section 12.04
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Statements Required in Certificate or Opinion 98
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Section 12.05
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Rules by Trustee and Agents 98
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Section 12.06
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No Personal Liability of Directors, Officers, Employees and Stockholders 98
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Section 12.07
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Judgment Currency 98
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Section 12.08
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Governing Law 99
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Section 12.09
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Submission to Jurisdiction; Appointment of Agent for Service 99
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Section 12.10
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No Adverse Interpretation of Other Agreements 99
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Section 12.11
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Successors 100
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Section 12.12
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Severability 100
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Section 12.13
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Counterpart Originals 100
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Section 12.14
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Table of Contents, Headings, etc. 100
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Section 12.15
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Prescription 100
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Section 12.16
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USA PATRIOT Act 100
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Section 1.01
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Definitions
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(1)
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“
Comparable German Bund Issue
” means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such Redemption Date to December 1, 2022 and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Euro Notes and of a maturity most nearly equal to December 1, 2022; provided, however, that, if the period from such Redemption Date to December 1, 2022 is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer, the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the period from such Redemption Date to December 1, 2022, is less than one year, a fixed maturity of one year shall be used;
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(2)
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“
Comparable German Bund Price
” means, with respect to any Redemption Date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations;
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(3)
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“
Reference German Bund Dealer
” means any dealer of German
Bundesanleihe
securities appointed by the Issuer in good faith; and
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(4)
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“
Reference German Bund Dealer Quotations
” means, with respect to each Reference German Bund Dealer and any Redemption Date, the average as determined by the Issuer in good faith of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt am Main, Germany, time on a day no earlier than the third Business Day preceding the date of the delivery of the redemption notice in respect of such Redemption Date.
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(1)
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securities or obligations, insured or unconditionally guaranteed by the United States government, the government of the United Kingdom, the relevant member state of the European Union as of January 1, 2004 (each a “
Qualified Country
”) or any agency or instrumentality thereof, in each case, having maturities of not more than 24 months from the date of acquisition thereof;
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(2)
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securities or obligations issued by any Qualified Country or any political subdivision of any such Qualified Country, or any public instrumentality thereof, having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either S&P or Moody’s (or if at any time neither S&P nor Moody’s shall be rating such obligations, then from another nationally recognized rating service in any Qualified Country);
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(3)
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commercial paper issued by any lender party to a Credit Facility or any bank holding company owning any lender party to a Credit Facility;
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(4)
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commercial paper maturing no more than 12 months after the date of acquisition thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service in any Qualified Country);
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(5)
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time deposits, eurodollar time deposits, bank deposits, certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any lender party to a Credit Facility or any other bank or trust company (x) having combined capital and surplus of not less than $250.0 million in the case of U.S. banks and $100.0 million (or the U.S. Dollar equivalent thereof) in the case of non-U.S. banks or (y) the long-term debt of which is rated at the time of acquisition thereof at least “A-” or the equivalent thereof by S&P, or “A-” or the equivalent thereof by Moody’s (or if at the time
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(6)
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auction rate securities rated at least Aa3 by Moody’s and AA- by S&P (or, if at any time either S&P or Moody’s shall not be rating such obligations, an equivalent rating from another nationally recognized rating service in any Qualified Country);
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(7)
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repurchase agreements or obligations with a term of not more than 30 days for underlying securities of the types described in clauses (1), (2) and (5) above entered into with any bank meeting the qualifications specified in clause (5) above or securities dealers of recognized national standing;
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(8)
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marketable short-term money market and similar funds (x) either having assets in excess of $250.0 million (or U.S. Dollar equivalent thereof) or (y) having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service in any Qualified Country);
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(9)
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interests in investment companies or money market funds, 95% the investments of which are one or more of the types of assets or instruments described in clauses (1) through (8) above; and
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(10)
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in the case of investments by the Issuer or any of its Subsidiaries (if any) organized or located in a jurisdiction other than the United States or a member state of the European Union (or any political subdivision or territory thereof), or in the case of investments made in a country outside the United States, other customarily utilized high-quality investments in the country where such Subsidiary is organized or located or in which such Investment is made, all as conclusively determined in good faith by the Issuer .
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(1)
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matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
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(2)
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is convertible or exchangeable for Financial Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of Telenet Group BVBA, the Initial Telenet Borrower or a Subsidiary of Telenet Group BVBA); or
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(3)
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is redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of the date (a) of the Stated Maturity of the Notes or (b) on which there are no Notes outstanding, provided that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require Telenet Group BVBA to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (each defined in a substantially identical manner to the corresponding definitions in the Senior Credit Facility) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that Telenet Group BVBA may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such
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(1)
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Liens for taxes, assessments or government charges or levies on the assets of the Issuer if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith by appropriate proceedings;
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(2)
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Liens arising out of judgments, decrees, orders or awards so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree, order or award have not been finally terminated or the period within which such proceedings may be initiated has not expired;
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(3)
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Liens created for the benefit of (or to secure) the Notes, including any Additional Notes (including any Liens granted pursuant to the Notes Security Documents);
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(4)
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Liens on the Note Collateral to secure Additional Notes and/or any Additional Debt;
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(5)
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Liens granted to the Trustee and/or the Security Trustee for its compensation and indemnities pursuant to this Indenture;
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(6)
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Liens arising solely by virtue of any statutory or common law provisions or customary business provisions relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution; and
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(7)
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Liens on Escrowed Proceeds for the benefit of the related holders of debt securities or other Financial Indebtedness (or the underwriters or arrangers thereof) or on cash set aside at the time of the incurrence of any Financial Indebtedness or government securities purchased with such cash, in either case to the extent such cash or government securities prefund the payment of interest on such Financial Indebtedness and are held in escrow accounts or similar arrangements to be applied for such purpose.
|
Section 1.02
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Other Definitions.
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Defined in
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Term
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Section
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“
Accession Agreement
”
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8.01
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“
Additional Amounts
”
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4.15
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“
Additional Collateral Sharing Agreement
”
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4.16
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“
Asset Sale Offer
”
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4.09
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“
Asset Sale Offer Amount
”
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3.10
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“
Asset Sale Offer Period
”
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3.10
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“
Asset Sale Purchase Date
”
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3.10
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“
Authentication Order
”
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2.02
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“
Authorized Agent
”
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12.09
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“
Belgian Issuer Accession Notice
”
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8.01
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“
Belgian Issuer Accession
”
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8.01
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“
Belgian Issuer Accession Date
”
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8.03
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“
Called Notes
”
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11.01
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“
Change of Control
”
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4.11
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“
Commitments
”
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9.01
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“
CSA Enforcement Event
”
|
6.03
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“
Dollar Called Notes
”
|
11.01
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“
Dollar Notes
”
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Preamble
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“Equity Offering Early Redemption Proceeds”
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3.07
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“Euro Called Notes
”
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11.01
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“Euro Notes
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Preamble
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“
Event of Default
”
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6.01
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“Excess Early Redemption Proceeds”
|
3.07
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“
Finco Loans Borrower Exchange
”
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8.04
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“
ICA Accession
”
|
8.01
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“
Initial Reporting Standard”
|
4.03
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“
International Stock Exchange
”
|
4.18
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“
Issuer Tax Event
”
|
4.15
|
“
Judgment Currency
”
|
12.07
|
“
Luxembourg Paying Agent
”
|
2.03
|
“
New Reporting Standard
”
|
4.03
|
“
Noteholder Consent
”
|
9.01
|
“
Paying Agent
”
|
2.03
|
“
Payor
”
|
4.15
|
“
Register
”
|
2.03
|
“
Registrar
”
|
2.03
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“
Regular Record Date
”
|
2.04
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“
Relevant Tax Jurisdiction
”
|
4.15
|
“
Required Currency
”
|
12.07
|
“
Senior Credit Facility Decision
”
|
9.01
|
|
Defined in
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“
Taxes
”
|
4.15
|
“
Tax Redemption Date
”
|
3.09
|
“
Telenet Event of Default
”
|
6.01
|
“
Transfer Agent
”
|
2.03
|
“
Transfer Agreement
”
|
8.01
|
Section 1.03
|
References to Senior Credit Facility
|
Section 1.04
|
Rules of Construction
|
(1)
|
a term has the meaning assigned to it;
|
(2)
|
an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS;
|
(3)
|
“
or
” is not exclusive;
|
(4)
|
words in the singular include the plural, and in the plural include the singular;
|
(5)
|
“
will
” shall be interpreted to express a command;
|
(6)
|
provisions apply to successive events and transactions; and
|
(7)
|
references to Sections of or rules under the U.S. Securities Act will be deemed to include substitute, replacement of successor Sections or rules adopted by the SEC from time to time.
|
(1)
|
a winding-up, administration or dissolution includes, without limitation, bankruptcy (
faillite
), insolvency, voluntary or judicial liquidation (
liquidation volontaire ou judiciaire
), composition with creditors (
concordat préventif de la faillite
), reprieve from payment (
sursis de paiement
), controlled management (
gestion contrôlée
), fraudulent conveyance (
action pauliana
), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally;
|
(2)
|
a receiver, administrative receiver, administrator or the like includes without limitation, a
juge délégué, commissaire, juge-commissaire, liquidateur
or
curateur
;
|
(3)
|
a security interest includes any
hypothèque, nantissement, gage, privilege, sûreté réelle, droit de rétention
and any type of real security or agreement or
|
(4)
|
a person being unable to pay its debts includes that person being in a state of cessation of payments (
cessation de paiements
).
|
Section 2.01
|
Form and Dating
|
Section 2.02
|
Execution and Authentication
|
Section 2.03
|
Registrar and Paying Agent
|
Section 2.04
|
Holders to Be Treated as Owners; Payments of Interest
|
Section 2.05
|
Paying Agent to Hold Money
|
Section 2.06
|
Holder Lists
|
Section 2.07
|
Transfer and Exchange
|
Section 2.08
|
Replacement Notes
|
Section 2.09
|
Outstanding Notes
|
Section 2.10
|
Treasury Notes
|
Section 2.11
|
Temporary Notes
|
Section 2.12
|
Cancellation
|
Section 2.13
|
Defaulted Interest
|
Section 2.14
|
Common Code or ISIN Number
|
Section 2.15
|
Deposit of Moneys
|
Section 3.01
|
Notices to Trustee
|
Section 3.02
|
Selection of Notes to Be Redeemed or Purchased
|
Section 3.03
|
Notice of Redemption
|
(1)
|
the Redemption Date and the record date;
|
(2)
|
the redemption price;
|
(3)
|
the Common Code and/or ISIN number(s), if any;
|
(4)
|
if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
|
(5)
|
the name and address of the Paying Agent or the Paying and Domiciliary Agent, as applicable;
|
(6)
|
that Notes called for redemption must be surrendered to the Paying Agent or the Paying and Domiciliary Agent, as applicable, to collect the redemption price;
|
(7)
|
that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
|
(8)
|
the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and
|
(9)
|
that no representation is made as to the correctness or accuracy of the Common Code and/or ISIN number, if any, listed in such notice or printed on the Notes.
|
Section 3.04
|
Effect of Notice of Redemption
|
Section 3.05
|
Deposit of Redemption or Purchase Price
|
Section 3.06
|
Notes Redeemed or Repurchased in Part
|
Section 3.07
|
Optional Redemption
|
Year
|
Redemption Price
|
|
2022
|
102.750
|
%
|
2023
|
101.375
|
%
|
2024
|
100.688
|
%
|
2025 and thereafter
|
100.000
|
%
|
Year
|
Redemption Price
|
|
2022
|
101.750
|
%
|
2023
|
100.875
|
%
|
2024
|
100.438
|
%
|
2025 and thereafter
|
100.000
|
%
|
Section 3.08
|
[Reserved]
|
Section 3.09
|
Redemption for Changes in Withholding Taxes
|
Section 3.10
|
Offer to Purchase by Application of Available Disposal Proceeds
|
(1)
|
that the Asset Sale Offer is being made pursuant to this Section 3.10 and Section 4.09(a) and the length of time the Asset Sale Offer will remain open;
|
(2)
|
the Asset Sale Offer Amount, the purchase price and the Asset Sale Purchase Date;
|
(3)
|
that any Note not tendered or accepted for payment will continue to accrue interest;
|
(4)
|
that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Asset Sale Purchase Date;
|
(5)
|
that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have (i) Euro Notes purchased in denominations of €100,000 and in integral multiples of €100,000 in excess thereof, and (ii) Dollar Notes purchased in denominations of $200,000 principal amount and integral multiples of $200,000 in excess thereof;
|
(6)
|
that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book‑entry transfer, to the Issuer, Euroclear, Clearstream or another a depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
|
(7)
|
that Holders will be entitled to withdraw their election if the Issuer, Euroclear, Clearstream or another a depositary appointed by the Issuer or the Paying Agent, as the case may be, receives, not later than the expiration of the Asset Sale Offer Period, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
|
(8)
|
that, if the aggregate principal amount of Notes surrendered by Holders thereof exceeds the Asset Sale Offer Amount, the Trustee will select the Notes to be purchased on a
pro rata
basis (or, in the case of Notes issued in global form, based on a method that most nearly approximates a
pro rata
selection in accordance with the rules of the X/N Clearing System, Euroclear and/or Clearstream, as applicable), based on the amounts of the each series of Notes tendered (with such adjustments as may be deemed appropriate by the Trustee so that only (i) Euro Notes in denominations of €100,000 and in integral multiples of €100,000 in excess thereof, and (ii) Dollar Notes in denominations of $200,000 principal amount and integral multiples of $200,000 in excess thereof will be purchased); and
|
(9)
|
that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book‑entry transfer).
|
Section 3.11
|
[Reserved]
|
Section 3.12
|
Open Market Purchases of Telenet Loans
|
Section 3.13
|
Optional Redemption upon Certain Tender Offers
|
Section 4.01
|
Payment of Notes
|
Section 4.02
|
Maintenance of Office or Agency
|
Section 4.03
|
Information
|
Section 4.04
|
Compliance Certificate
|
Section 4.05
|
Taxes
|
Section 4.06
|
Stay, Extension and Usury Laws
|
Section 4.07
|
Limitations with Respect to Business Activities of the Issuer
|
Section 4.08
|
Impairment of Liens
|
Section 4.09
|
Application of Available Disposal Proceeds
|
Section 4.10
|
Maintenance of the Existence of the Issuer
|
Section 4.11
|
Redemption Upon a Change of Control
|
Section 4.12
|
Minimum Period for Consents under Loan Documents
|
Section 4.13
|
Payments for Consent
|
Section 4.14
|
Amendments to Loan Documents to be applied equally to all Telenet Lenders
|
Section 4.15
|
Additional Amounts
|
(1)
|
Luxembourg or any political subdivision or governmental authority thereof or therein having power to tax;
|
(2)
|
Belgium or any political subdivision or governmental authority thereof or therein having power to tax, in the event of the Belgian Issuer Accession;
|
(3)
|
any jurisdiction from or through which payment on the Notes is made, or any political subdivision or governmental authority thereof or therein having the power to tax; or
|
(4)
|
any other jurisdiction in which a Payor is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1), (2), (3) and (4), a “
Relevant Tax Jurisdiction
”),
|
(a)
|
any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner and the Relevant Tax Jurisdiction imposing such Taxes (other than the mere ownership or holding of such Note or enforcement of rights thereunder or under this Indenture or the receipt of payments in respect thereof);
|
(b)
|
any Taxes that would not have been so imposed but for the failure of the Holder or beneficial owner of such Note to make a declaration of non-residence or any other claim or filing for exemption to which it is entitled,
provided
that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the Relevant Tax Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Tax Jurisdiction, the relevant Holder at that time has been notified (in accordance with the procedures set forth in this Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made;
|
(c)
|
any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30-day period);
|
(d)
|
any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on the Notes;
|
(e)
|
any estate, inheritance, gift, sale, transfer, personal property, capital gains or similar tax, assessment or other governmental charge;
|
(f)
|
[Reserved];
|
(g)
|
all United States backup withholding taxes;
|
(h)
|
any withholding or deduction imposed pursuant to (a) Sections 1471 through 1474 of the United States Internal Revenue Code of 1986 (as amended), as of the date of this Indenture (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, (b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of (a) above or (c) any agreement pursuant to the implementation of (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction;
|
(i)
|
[Reserved];
|
(j)
|
to a Holder of Notes, who at the time of acquisition of the Notes, was not an X/N Eligible Investor or to a Holder of Notes who was an X/N Eligible Investor at the time of acquisition of the Notes but, for reasons within the Holder’s control, either ceased to be an X/N Eligible Investor or, at any relevant time on or after the acquisition of the Notes, otherwise failed to meet any other condition for the exemption of Belgian withholding tax pursuant to the law of 6 August 1993 relating to certain securities, or is an X/N Eligible Investor but is not holding the Note in the X/N Clearing System;
|
(k)
|
to a Holder of Notes who is liable to such Taxes because the Notes were upon its request converted into Definitive Registered Notes and could no longer be cleared through the X/N Clearing System; or
|
(l)
|
any combination of items (a) through (k) above.
|
Section 4.16
|
Additional Collateral Sharing Agreement
|
(1)
|
appointed and authorized the Trustee and the Security Trustee from time to time to give effect to such provisions;
|
(2)
|
authorized each of the Trustee and the Security Trustee from time to time to become a party to any Additional Collateral Sharing Agreement;
|
(3)
|
agreed to be bound by such provisions and the provisions of any Additional Collateral Sharing Agreement; and
|
(4)
|
irrevocably appointed the Trustee and the Security Trustee to act on its behalf from time to time to enter into and comply with such provisions and the
|
Section 4.17
|
Further Instruments and Acts
|
Section 4.18
|
Listing
|
Section 5.01
|
The Finco Loans
|
Section 5.02
|
Limited Recourse Obligations
|
Section 6.01
|
Events of Default
|
(A)
|
there shall have been the entry by a court of competent jurisdiction of (i) a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Bankruptcy Law or (ii) a decree or order adjudging the Issuer bankrupt or insolvent, or seeking moratorium, reorganization, arrangement, adjustment or composition of or in respect of the Issuer under any applicable Bankruptcy Law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or of any substantial part of its respective properties, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief shall continue to be in effect, or any such other decree or order shall be unstayed and in effect, for a period of 60 consecutive days;
|
(B)
|
the Issuer commences a voluntary case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent, or files for or has been granted a moratorium on payment of its debts or files for bankruptcy or is declared bankrupt;
|
(C)
|
the Issuer consents to the entry of a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency or proceeding against it;
|
(D)
|
the Issuer files a petition or answer or consent seeking reorganization or relief under any applicable Bankruptcy Law (other than a solvent reorganization for purposes of transferring assets among the Issuer),
|
(E)
|
the Issuer (i) consents to the filing of such petition or the appointment of, or taking possession by, an administrator, custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Issuer or of any substantial part of its properties, (ii) makes an assignment for the benefit of creditors or (iii) admits in writing its inability to pay its debts generally as they become due,
|
(F)
|
the whole or any substantial part of the assets of the Issuer has been placed under administration, or
|
(G)
|
the Issuer takes any corporate action in furtherance or any such actions in sub-clauses (B) through (F) of this Section 6.01(a)(6); or
|
Section 6.02
|
Acceleration
|
Section 6.03
|
Other Remedies
|
Section 6.04
|
Waiver of Past Defaults
|
Section 6.05
|
Control by Majority
|
Section 6.06
|
Limitation on Suits
|
(1)
|
such Holder has previously given the Trustee written notice that an Event of Default is continuing;
|
(2)
|
Holders of at least 50% in aggregate principal amount of the then outstanding Notes have requested the Trustee and/or the Security Trustee to pursue the remedy;
|
(3)
|
such Holders have offered the Trustee and/or Security Trustee reasonable security or indemnity satisfactory to it against any loss, liability or expense;
|
(4)
|
the Trustee and/or Security Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
|
(5)
|
the Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee and/or Security Trustee a direction inconsistent with such request within such 60‑day period.
|
Section 6.07
|
Rights of Holders of Notes to Receive Payment
|
Section 6.08
|
[Reserved]
|
Section 6.09
|
Collection Suit by Trustee
|
Section 6.10
|
Trustee May File Proofs of Claim
|
Section 6.11
|
Priorities
|
Section 6.12
|
Undertaking for Costs
|
Section 6.13
|
Non Petition
|
Section 7.01
|
Duties of Trustee
|
Section 7.02
|
Rights of Trustee
|
Section 7.03
|
Individual Rights of Trustee
|
Section 7.04
|
Trustee’s Disclaimer
|
Section 7.05
|
Notice of Defaults
|
Section 7.06
|
Reports by Trustee to Holders of the Notes
|
Section 7.07
|
Compensation and Indemnity
|
Section 7.08
|
Replacement of Trustee or Security Trustee
|
Section 7.09
|
Successor Trustee by Merger, etc.
|
Section 7.10
|
Eligibility; Disqualification
|
Section 7.11
|
Preferential Collection of Claims Against Issuer
|
Section 7.12
|
Contractual Recognition of Bail-In Powers
|
Section 7.13
|
Tax Matters
|
(a)
|
Information Covenants. Each of the Issuer, the Paying and Domiciliary Agent and the Trustee (or any Agent) shall, within ten Business Days of a written request by the other party, supply to that other party such forms, documentation and other information relating to it, its operations, or the Notes as that other party reasonably requests for the purposes of that other party's compliance with Applicable Law and shall notify the relevant other party reasonably promptly in the event that it becomes aware that any of the forms, documentation or other information provided by such party is (or becomes) inaccurate in any material respect; provided, however, that no party shall be required to provide any forms, documentation or other information pursuant to this Section 7.13 to the extent that: (i) any such form, documentation or other information (or the information required to be provided on such form or documentation) is not reasonably available to such party and cannot be obtained by such party using reasonable efforts; or (ii) doing so would or might in the reasonable opinion of such party constitute a breach of any: (a) Applicable Law; (b) fiduciary duty; or (c) duty of confidentiality. For purposes of this Section 7.13, “Applicable Law” means applicable tax laws (inclusive of any current and future laws, rules, regulations, intergovernmental agreements and interpretations thereof promulgated by competent authorities) related to this Indenture in effect from time to time.
|
(b)
|
Notice of Withholding or Deduction. If the Issuer is, in respect of any payment in respect of the Notes, compelled to withhold or deduct any amount for or on account of any Taxes as contemplated by Section 4.15 or any undertaking given in addition to or in substitution for Section 4.15 pursuant to this Indenture, the Issuer shall give notice to the Trustee as soon as it becomes aware of the requirement to make the withholding or deduction and shall give to the Trustee such information as it or any Agent (including any Paying Agent) shall require to enable each of them to comply with the requirement.
|
(c)
|
Entitlement to Withhold or Deduct. Notwithstanding any other provision of this Indenture, the Trustee or any Agent (including any Paying Agent) shall be entitled to make a deduction or withholding from any payment which it makes under the Notes for or on account of any Taxes, if and only to the extent so required by Applicable Law or by virtue of the relevant holder failing to satisfy any certification or other requirements in respect of the Notes, in which event the Trustee or any Agent shall make such payment after such deduction or withholding has been made and shall account to the relevant regulatory or governmental authority within the time allowed for the amount so deducted or withheld or, at its option, shall reasonably promptly after making such payment return to the Issuer the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant regulatory or governmental authority for such amount. In each case, the Trustee and each Agent shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such taxes, duties or charges.
|
Section 8.01
|
Belgian Issuer Accession
|
Section 8.02
|
Conditions of the Belgian Issuer Accession
|
(i)
|
the Initial Telenet Borrower will be required to deliver (or cause to be delivered) to the Trustee: (A) an audited opening balance sheet or audited balance sheet as of the most recent fiscal year end of the Belgian Issuer, (B) if the Belgian Issuer has been incorporated for longer than 6 months prior to the Belgian Issuer Accession Date, a statement of cash flows (or similar) for the period from the date of incorporation through to the date of the Belgian Issuer’s most recently completed financial quarter and (C) all documents reasonably required for the Trustee to complete its customary client identification processes on the Belgian Issuer; provided,
|
(ii)
|
immediately after giving effect to the Belgian Issuer Accession, the Notes (A) will be the general obligations of the Belgian Issuer, (B) will rank pari passu in right of payment with any Financial Indebtedness of the Belgian Issuer that is not subordinated in right of payment to the Notes, (C) will rank senior in right of payment to any existing and future debt of the Belgian Issuer that is subordinated in right of payment to the Notes and (D) with respect to the obligations owed by the Belgian Issuer only, will not be subject to any enforcement standstill or payment block; and
|
(iii)
|
the Issuer shall deliver to the Trustee and the Security Trustee an Opinion of Counsel and an Officer’s Certificate stating (A) that all conditions precedent to the Belgian Issuer Accession have been satisfied and (B) this Indenture (as amended by the Accession Agreement), the Intercreditor Agreement (as amended by the ICA Accession), the Collateral Sharing Agreement (as amended by the CSA Accession) and the relevant Security Documents (or any new Security Documents) creating security in respect of the Note Collateral are enforceable against the Belgian Issuer or the relevant grantor thereof, it being acknowledged that any Opinion of Counsel may be subject to exceptions, limitations and exclusions that are customary for a transaction by this type of entity and are determined by counsel to be necessary or appropriate including in light of applicable law.
|
Section 8.03
|
Miscellaneous
|
Section 8.04
|
Finco Loans Borrower Exchange.
|
Section 9.01
|
To the Senior Credit Facility, the 2017 Finco Accession Agreements or the New Finco Accession Agreements
|
(OLC + BC + ABC + OBC)
OL |
= Threshold Amount
|
(1)
|
reduce the stated rate of or extend the stated time for payment of interest under the relevant 2017 Finco Loan or the relevant New Finco Loan, as applicable;
|
(2)
|
reduce any amounts payable in respect of any prepayment of the relevant 2017 Finco Loan or the relevant New Finco Loan, as applicable;
|
(3)
|
reduce the principal of or extend the Stated Maturity of the relevant 2017 Finco Loan or the relevant New Finco Loan, as applicable;
|
(4)
|
make the relevant 2017 Finco Loan or the relevant New Finco Loan, as applicable, payable in currency other than that stated in the relevant 2017 Finco Accession Agreement or the relevant New Finco Accession Agreement, as applicable (except to the extent that the currency stated in such 2017 Finco Accession Agreement or such New Finco Accession Agreement, as applicable, has been succeeded or replaced pursuant to applicable law); or
|
(5)
|
modify the payment terms of the relevant 2017 Finco Accession Agreement or the relevant New Finco Accession Agreement, as applicable.
|
Section 9.02
|
To this Indenture and the Notes Without Consent of Holders of Notes
|
Section 9.03
|
To this Indenture and the Notes With Consent of Holders of Notes
|
(1)
|
reduce the principal amount of the Notes whose Holders must consent to an amendment, waiver or other determination;
|
(2)
|
reduce the stated rate of or extend the stated time for payment of interest or Additional Amounts on any Note ;
|
(3)
|
reduce the principal of or extend the Stated Maturity of any Note or alter the provisions with respect to the redemption of the Notes;
|
(4)
|
make any Note payable in a currency other than that stated in the Note (except to the extent that the currency stated in the Notes has been succeeded or replaced pursuant to applicable law);
|
(5)
|
impair the right of any Holder of Notes to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes; or
|
(6)
|
make any change to this Section 9.03.
|
Section 9.04
|
Revocation and Effect of Consents
|
Section 9.05
|
Notation on or Exchange of Notes
|
Section 9.06
|
Trustee to Sign Amendments, etc.
|
Section 10.01
|
Notes Security Documents
|
Section 10.02
|
Release of Note Collateral
|
(1)
|
upon the full and final payment and performance of all obligations of the Issuer under this Indenture and the Notes;
|
(2)
|
to release and/or re-take a lien on the Note Collateral to the extent otherwise permitted by the terms of the Indenture (including, without limitation, as may be permitted by the covenants described under Section 4.08);
|
(3)
|
with the consent of Holders of at least seventy-five percent (75%) in aggregate principal amount of the Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes);
|
(4)
|
following an Event of Default under this Indenture or a default under other Financial Indebtedness secured by the Note Collateral, pursuant to an enforcement in accordance with the Collateral Sharing Agreement;
|
(5)
|
upon satisfaction and discharge of the Notes as provided below under Article 11; and
|
(6)
|
with respect to Liens on the Initial Note Collateral, in connection with or to consummate the Belgian Issuer Accession and/or the Finco Loans Borrower Exchange;
provided that
upon release of Liens on the Initial Note Collateral, Liens on the New Note Collateral are substantially concurrently granted to the Security Trustee on behalf of itself, the Trustee and the Holders of the Notes.
|
Section 10.03
|
Authorization of Actions to Be Taken by the Security Trustee
|
(1)
|
enforce any of the terms of the Notes Security Documents, in accordance with the terms of the Collateral Sharing Agreement; and
|
(2)
|
collect and receive any and all amounts payable in respect of the obligations of the Issuer hereunder.
|
Section 10.04
|
Authorization of Receipt of Funds by the Security Trustee Under the Notes Security Documents
|
Section 10.05
|
Waiver of subrogation
|
Section 10.06
|
Termination of Security Interest
|
Section 10.07
|
Security Trustee
|
Section 10.08
|
Liability
|
Section 10.09
|
Indemnity
|
Section 10.10
|
Defaults
|
Section 10.11
|
Communications
|
Section 10.12
|
Professional Advisers
|
Section 10.13
|
Own Participation
|
Section 10.14
|
[Reserved]
|
Section 10.15
|
[Reserved]
|
Section 10.16
|
Enforcement Costs
|
Section 10.17
|
Further Action
|
Section 10.18
|
Luxembourg Provisions
|
Section 11.01
|
Satisfaction and Discharge
|
(A)
|
all Notes (or all Euro Notes or Dollar Notes, as applicable) that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Issuer, have been delivered to the Trustee or relevant Paying and Domiciliary Agent or Paying Agent or Registrar for cancellation; or
|
(B)
|
(i) all Notes (or all Euro Notes or Dollar Notes, as applicable) that have not been delivered to the Trustee or relevant Paying and Domiciliary Agent or Paying Agent or Registrar for cancellation (A) have become due and payable by reason of the mailing or delivery of a notice of redemption or otherwise or (B) will become due and payable within one year and (ii) the Issuer or a third party acting on behalf of the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders with respect to the Dollar Notes, cash, Cash Equivalents, U.S. Government Obligations or a combination thereof, in each case, denominated in U.S. dollars and with respect to the Euro Notes, cash, Cash Equivalents, European Government Obligations or a combination thereof, in each case, denominated in euro, in amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Financial Indebtedness on the Notes not delivered to the Trustee or relevant Paying and Domiciliary Agent or Paying Agent or Registrar for cancellation for principal, premium and Additional Amounts (if any) and accrued interest to the date of maturity or redemption;
|
Section 11.02
|
Application of Trust Money
|
Section 12.01
|
Notices
|
Section 12.02
|
Communication by Holders of Notes with Other Holders of Notes
|
Section 12.03
|
Certificate and Opinion as to Conditions Precedent
|
(1)
|
an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.04) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
|
(2)
|
an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.04) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
|
Section 12.04
|
Statements Required in Certificate or Opinion
|
(1)
|
a statement that the Person making such certificate or opinion has read such covenant or condition;
|
(2)
|
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
|
(3)
|
a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
|
(4)
|
a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
|
Section 12.05
|
Rules by Trustee and Agents
|
Section 12.06
|
No Personal Liability of Directors, Officers, Employees and Stockholders
|
Section 12.07
|
Judgment Currency
|
Section 12.08
|
Governing Law
|
Section 12.09
|
Submission to Jurisdiction; Appointment of Agent for Service
|
Section 12.10
|
No Adverse Interpretation of Other Agreements
|
Section 12.11
|
Successors
|
Section 12.12
|
Severability
|
Section 12.13
|
Counterpart Originals
|
Section 12.14
|
Table of Contents, Headings, etc.
|
Section 12.15
|
Prescription
|
Section 12.16
|
USA PATRIOT Act
|
TELENET FINANCE LUXEMBOURG NOTES S.À R.L.,
AS ISSUER
|
By:
Name: Authorized Signatory Title: Manager |
|
THE BANK OF NEW YORK MELLON, LONDON BRANCH
as Trustee and Security Trustee |
By:
Name: Authorized Signatory Title: Vice President |
|
THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH,
as Transfer Agent and Registrar
By:
Name: Authorized Signatory Title: Vice President |
ING BELGIUM SA/NV,
as Paying and Domiciliary Agent
By:
Name: Authorized Signatory Title: Head of Operational Services Investment
By:
Name: Authorized Signatory Title: Head of Product and Operations Investment and Securities |
|
|
|
(a)
|
This Note is subject to redemption, and may be the subject of an Asset Sale Offer, as further described in the Indenture. There is no sinking fund applicable to this Note.
|
(b)
|
If the Issuer deposits with the Trustee cash, Cash Equivalents or European Government Obligations or U.S. Government Obligations, as applicable, or a combination thereof, in each case, denominated in euros or U.S. dollars, as applicable, in amounts sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes to redemption or maturity, the Issuer may in certain circumstances be discharged from the Indenture and the Notes or may be discharged from certain of their obligations under certain provisions of the Indenture.
|
*
|
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
|
*
|
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
|
Date of Exchange
|
Amount of decrease in Principal Amount
of this Global Note |
Amount of increase in Principal Amount
of this Global Note |
Principal Amount
of this Global Note following such decrease (or increase) |
Signature of authorized officer of Paying and Domiciliary Agent
|
|
|
|
|
|
(a)
|
This Note is subject to redemption, and may be the subject of an Asset Sale Offer, as further described in the Indenture. There is no sinking fund applicable to this Note.
|
(b)
|
If the Issuer deposits with the Trustee cash, Cash Equivalents or European Government Obligations or U.S. Government Obligations, as applicable, or a
|
*
|
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
|
*
|
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
|
To:
|
The Bank of Nova Scotia as Facility Agent and KBC Bank NV as Security Agent
|
From:
|
The Telenet Additional Facility AJ Lender
|
1.
|
In this Agreement:
|
2.
|
Unless otherwise defined in this Agreement, terms defined in the Credit Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the Credit Agreement. The principles of construction set out in Clause 1.2 (
Construction
) of the Credit Agreement apply to this Agreement as though they were set out in full in this Agreement.
|
3.
|
We refer to Clause 2.2 (
Telenet Additional Facility
) of the Credit Agreement. This is a Finance Document.
|
4.
|
This Agreement will take effect on the date on which the Facility Agent notifies the Borrower and the Telenet Additional Facility AJ Lender that it has received the documents and evidence set out in Schedule 2 to this Agreement, in each case in form and substance satisfactory to it (acting reasonably) or, as the case may be, the requirement to provide any of such documents or evidence has been waived by the Facility Agent (acting on the instructions of the Telenet Additional Facility AJ Lender) (the “
Effective Date
”). The Facility Agent must give this notification to the Borrower and the Telenet Additional Facility AJ Lender promptly upon being so satisfied.
|
5.
|
The Telenet Additional Facility AJ Lender agrees:
|
(a)
|
to become party to and to be bound by the terms of the Credit Agreement as a Lender in accordance with Clause 2.2 (
Telenet Additional Facility
) of the Credit Agreement; and
|
(b)
|
to become party to the Intercreditor Agreement as a Senior Lender for the purposes of the Intercreditor Agreement and confirm that, as from the date of this Agreement, it intends to be party to the Intercreditor Agreement as a Senior Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
6.
|
The Telenet Additional Facility Commitment in relation to the Telenet Additional Facility AJ Lender (for the purpose of the definition of Telenet Additional Facility Commitment in Clause 1.1 (
Definitions
) of the Credit Agreement) is its Term Loan AJ Facility Commitment.
|
7.
|
The Facility Agent will, for the purposes of any determination to be made under the Credit Agreement or this Agreement (other than in respect of the Proposed Amendments in respect of which consent has been given in accordance with Clause 27 and 28 hereof), apply the votes of the Telenet Additional Facility AJ Lender in accordance with a written direction to be provided by the Telenet Additional Facility AJ Lender. The Telenet Additional Facility AJ Lender agrees that it will give any such direction in accordance with the provisions of Section 9.01 of the Indenture. For the avoidance of doubt, the Facility Agent may rely on any such directions received and shall have no duty to enquire or monitor as to whether such direction complies with Section 9.01 of the Indenture.
|
8.
|
The Term Loan AJ Facility may be drawn by one Advance (subject to the provisions of Clause 9 below) on the Effective Date and such date will constitute the Availability Period for the Term Loan AJ Facility. No more than one Request may be made in respect of the Term Loan AJ Facility under the Credit Agreement, and such Request may only be in a principal amount of the Telenet Additional Facility Commitment in relation to the Term Loan AJ Facility as set out in Clause 6 above.
|
(b)
|
For the purposes of this Clause 9 (unless otherwise specified), references to the Term Loan AJ Facility shall include Advances made under any such further Telenet Additional Facility AJ Accession Agreement.
|
(c)
|
Where any Term Loan AJ Facility Loan has not already been consolidated with any other Term Loan AJ Facility Loan, on the last day of any Term for such Term Loan AJ Facility Loan, that Term Loan AJ Facility Loan shall be consolidated with any other Term Loan AJ Facility Loan which has a Term ending on the same day as that Term Loan AJ Facility Loan and all such Term Loan AJ Facility Loans will then be treated as one Advance.
|
10.
|
The Final Maturity Date in respect of the Term Loan AJ Facility is 1 March 2028. Any outstanding Advance under the Term Loan AJ Facility shall be repaid in full on the Final Maturity Date.
|
11.
|
The interest rate in relation to the Term Loan AJ Facility will be a fixed rate of 5.500 per cent. per annum. Such interest rate will be calculated in accordance with Clause 11.1 (
Calculation of Interest
) of the Credit Agreement as being the sum of LIBOR and the applicable Margin, where in order to achieve the fixed rate referred to above, the applicable Margin will be:
|
(a)
|
5.500 per cent. per annum, calculated on the basis of a 360 day year comprised of twelve 30 day months; minus
|
(b)
|
LIBOR.
|
12.
|
The first Term to apply to the Term Loan AJ Facility Loan will be a period equal to the period running from the Effective Date up to and excluding 15 January 2018. The Borrower agrees that each subsequent Term under the Term Loan AJ Facility will be 6 months.
|
13.
|
Upon the occurrence of a mandatory prepayment of the Term Loan AJ Facility following a Change of Control, as defined under Clause 10.2 (
Mandatory Prepayment – Change of Control
) of the Credit Agreement, the Borrower under the Term Loan AJ Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) an amount equal to 1 per cent. of the principal amount of the Term Loan AJ Facility, plus accrued and unpaid interest to the due date of mandatory prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) under the Term Loan AJ Facility on the actual date of such mandatory prepayment.
|
14.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of any of the Term Loan AJ Facility by the Borrower under Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement (other than a voluntary prepayment complying with Clauses 17, 18 or 20 below) in an amount not to exceed 10% of the original principal amount of the Term Loan AJ Facility during each twelve-month period commencing on the date of this Agreement, the Borrower under the Term Loan AJ Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) an amount equal to 3.0% of the principal amount of the Term Loan AJ Facility being prepaid, plus accrued and unpaid interest then due on the amount of the Term Loan AJ Facility Loan prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower under the Term Loan AJ Facility to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) on the actual date of such prepayment. Prior to 1 December 2022, to the extent that during any twelve-month period commencing on the date of this Agreement, the principal amount of the Term Loan AJ Facility prepaid in any one or more voluntary prepayments is greater than an amount equal to 10% of the original principal amount of the Term Loan AJ Facility (any such amount, the “
Excess Early Redemption Proceeds
”), the Borrower will apply the Excess Early Redemption Proceeds to a voluntary prepayment of the Term Loan AJ Facility as described in Clause 15 below.
|
15.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of any or all of the Term Loan AJ Facility by the Borrower under the Term Loan AJ Facility under Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement with any Excess Early Redemption Proceeds (other than a voluntary prepayment complying with Clauses 17, 18 or 20 below), the Borrower under the Term Loan AJ Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) an amount equal to the Additional Amount (as defined below) (calculated as of a date no more than three Business Days prior to the date of the relevant prepayment notice), plus accrued and unpaid interest on the amount of the Term Loan AJ Facility Loan prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower under the Term Loan AJ Facility to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) on the actual date of such prepayment.
|
(i)
|
the present value at such prepayment date of (i) the amount that would be payable in accordance with Clause 16 below in respect of the principal amount of the Term Loan AJ Facility being prepaid if such amount were prepaid on 1 December 2022 pursuant to Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement, plus (ii) the principal amount of the Term Loan AJ Facility being prepaid plus (iii) all required interest payments due on the principal amount of the Term Loan AJ Facility being prepaid through 1 December 2022 (excluding accrued but unpaid interest to the prepayment date and assuming such interest payments are calculated at the rate of interest on the Term Loan AJ Facility in effect on such prepayment date), computed using a discount rate equal to the Treasury Rate plus 50 basis points; over
|
(ii)
|
the principal amount of the Term Loan AJ Facility being prepaid.
|
16.
|
On or after 1 December 2022 upon the occurrence of a voluntary prepayment of any or all of the Term Loan AJ Facility by the Borrower under the Term Loan AJ Facility under Clause 10.5 (
Voluntary prepayment
) of the Credit Agreement (other than a voluntary prepayment complying with Clause 17, 18, 19 and 21 below), the Borrower under the Term Loan AJ Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) an amount equal to the relevant percentages of the principal amount of the Term Loan AJ Facility being prepaid as set forth in the table below on, plus accrued and unpaid interest then due on the amount of the Term Loan AJ Facility prepaid to, the due date of prepayment, if prepaid during the twelve-month period beginning on 1 December of the years indicated below:
|
Year
|
Prepayment Price expressed as a percentage of the principal amount of the Term Loan AJ Facility
|
2022
|
2.750%
|
2023
|
1.375%
|
2024
|
0.688%
|
2025 and thereafter
|
0.000%
|
17.
|
Notwithstanding Clauses 14, 15 and 16:
|
(a)
|
if the Telenet Additional Facility AJ Lender purchases any Notes in connection with any tender offer or other offer to purchase for the Notes (a “
Tender Offer
”), the Borrower will prepay an aggregate principal amount of the Term Loan AJ Facility, pro rata based on the aggregate principal amount of Notes tendered in such Tender Offer and at a prepayment price of par plus any premium paid or less any discount received by the Telenet Additional Facility AJ Lender in connection with the purchase of the Notes in such Tender Offer, plus any accrued and unpaid interest to the due date of such prepayment; and
|
(b)
|
if following any Tender Offer, the Telenet Additional Facility AJ Lender is entitled to, and elects to, redeem any remaining Notes at a price equal to the price paid to each other holder in such Tender Offer, then the Borrower will prepay the remaining principal amount of the Term Loan AJ Facility at a prepayment price of par plus any premium paid or less any discount received by the Telenet Additional Facility AJ Lender in connection with the purchase of the Notes in such Tender Offer, plus any accrued and unpaid interest to the date that any interest accrues under the Notes in connection with such redemption.
|
18.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of the Term Loan AJ Facility by the Borrower pursuant to Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement with the Net Cash Proceeds of one of more Equity Offerings (the “
Equity Offering Early Redemption Proceeds
”) in an amount of up to 40% of the Term Loan AJ Facility Loan, the Borrower shall upon not less than 10 days nor more than 60 days’ notice make a payment to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) in an amount (the “
Equity Claw Prepayment Premium
”) equal to 5.500 per cent. of the principal amount of the Term Loan AJ Facility prepaid, together with any amounts due to the Telenet Additional Facility AJ Lender in respect of a Tax Deduction plus accrued interest then due on the amount of the Term Loan AJ Facility prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Telenet Additional Facility AJ Lender) under the Term Loan AJ Facility on the actual date of such prepayment provided that:
|
(a)
|
at least 50% of the principal amount of the Term Loan AJ Facility remains outstanding immediately after any such prepayment; and
|
(b)
|
such prepayment is made not more than 180 days after the consummation of any Equity Offering.
|
(b)
|
is convertible or exchangeable for Financial Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of Telenet Group BVBA, the Borrower or a Subsidiary of Telenet Group BVBA); or
|
(c)
|
is redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of the date (a) of the stated maturity of the Term Loan AJ Facility or (b) on which there are no amounts under the Term Loan AJ Facility outstanding,
provided
that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock;
provided, further
that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require Telenet Group BVBA to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (each defined in a substantially identical manner to the corresponding definitions in the Credit Agreement) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that Telenet Group BVBA may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by Telenet Group BVBA with any provisions of the Credit Agreement.
|
19.
|
In consideration for the Telenet Additional Facility AJ-B Lender assuming the Telenet Additional Facility AJ Lender’s obligations under the Indenture and provided that any corresponding conditions to such assumption set out in the Indenture have been satisfied substantially concurrently, the Telenet Additional Facility AJ Lender agrees that upon receipt of not less than 8 Business Days’ written notice from the Borrower in relation to the Term Loan AJ Facility and subject to satisfaction, substantially concurrently, of the other requirements of the Finance Documents it shall promptly on the transfer date (as agreed by the Facility Agent, the Telenet Additional Facility AJ-B Lender and the Borrower) transfer its rights, title and obligations under the Term Loan AJ Facility by executing a Transfer Certificate substantially in the form of Schedule 3 of this Telenet Additional Facility AJ Accession Agreement in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement (and the Company shall procure the execution by the Telenet Additional Facility AJ-B Lender of such Transfer Certificate) and deliver such Transfer Certificate to the Facility Agent (the “
Facility AJ Loan Transfer
”). The Borrower shall have the right, but not the obligation, to deliver any such notice and to effect the Facility AJ Loan Transfer. A copy of the written notice from the Borrower to the Telenet Additional Facility AJ Lender shall also be provided to the Facility Agent on or around the date on which it is delivered to the Telenet Additional Facility AJ Lender in accordance with this Clause 19.
|
20.
|
In accordance with the Telenet Additional Facility AJ-B Accession Agreement, on the Effective Date (as defined therein) the Telenet Additional Facility AJ-B Lender will make or be deemed to have made, as applicable to the Telenet Additional Facility AJ-B Borrower a Term Loan AJ-B Facility Loan in an amount equal to its commitment under the Term Loan AJ-B Facility (which shall be an amount equal to the then outstanding principal amount of the Term Loan AJ Facility Loan) by, at the election of the Company, one or more of the following (the “
Belgian Issuer Rollover
”):
|
(a)
|
transferring all of its rights, title and obligations under the Term Loan AJ Facility to the Telenet Additional Facility AJ-B Borrower pursuant to a transfer certificate to be executed by each of the Telenet Additional Facility AJ-B Lender, the Telenet Additional Facility AJ-B Borrower and the Facility Agent in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement;
|
(b)
|
cash settling with (or netting against) proceeds received (or payable) in respect of the voluntary prepayment and cancellation of the Term Loan AJ Facility Loan; and/or
|
(c)
|
any other means that may be permitted under the Finance Documents and applicable law provided that the Telenet Additional Facility AJ Lender shall cease to have any rights or obligations under the Telenet Additional Facility AJ Accession Agreement following the entry into the Telenet Additional Facility AJ-B Accession Agreement.
|
21.
|
On the Effective Date (as defined in the Telenet Additional Facility AJ-B Accession Agreement), accrued and unpaid interest in respect of the Term Loan AJ Facility Loan shall be rolled over and deemed to be interest accrued in respect of the Term Loan AJ-B Facility Loan. Such interest shall be due and payable, together with any additional accrued and unpaid interest on the Term Loan AJ-B Facility Loan, on the first interest period payment date under the Term Loan AJ-B Facility which shall correspond with the end of the Term selected in the relevant Request for the Term Loan AJ Facility Loan under the Credit Agreement.
|
22.
|
The Borrower agrees that it will not request or require the transfer of all of the rights and obligations of the Telenet Additional Facility AJ Lender (or cancel or reduce any of such Lender’s Commitments or repay or prepay the Term Loan AJ Facility Loan) pursuant to Clause 10.8 (
Right of Repayment and Cancellation of a Single Lender
), Clause 10.9 (
Right of Cancellation in relation to a Defaulting Lender
) or Clause 28.3 (
Non-Consenting Lenders
) of the Credit Agreement.
|
23.
|
On the first Utilisation Date in respect of the Term Loan AJ Facility, the Borrower confirms, on behalf of itself and the Company confirms on behalf of itself and each other Obligor, that the representations and warranties set out in Clause 18 (
Representations and Warranties
) of the Credit Agreement (except for Clauses 18.5 (
Non –conflict
), 18.6 (
No Event of Default
), 18.7 (
Authorisations
), 18.9 (
No Material Adverse Change
), 18.10 (
Litigation and Insolvency Proceedings
), 18.11 (
Tax Liabilities
), 18.12 (
Security Interests
), 18.13 (
Intellectual Property Rights
), 18.14 (
Environmental Laws
), 18.15 (
Ownership of Assets
), 18.16 (
ERISA
), 18.17 (
United States Regulations
) and 18.18 (
Anti-Terrorism Laws
)) are true and correct in all material respects as if made at the first Utilisation Date in respect of the Term Loan AJ Facility with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement.
|
24.
|
Each of the Guarantors confirms that its obligations under Clause 17 (
Guarantee and Indemnity
) of the Credit Agreement, and each of the Existing Security Providers confirms that the Security Interests created pursuant to the Security Documents and its obligations under the Finance Documents, shall continue unaffected and that such obligations extend to the Total Commitments as increased by the addition of the Term Loan AJ Facility and that such obligations shall be owed to each Finance Party including the Telenet Additional Facility AJ Lender.
|
25.
|
The Telenet Additional Facility AJ Lender confirms to each Finance Party (unless such Finance Party is also an Obligor) that:
|
(a)
|
it has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Credit Agreement and has not relied on any information provided to it by a Finance Party in connection with any Finance Document; and
|
(b)
|
it will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Credit Agreement or any Telenet Additional Facility Commitment is in force.
|
26.
|
The Term Loan AJ Facility will be used for (i) the Refinancing, (ii) to service certain payments to the Telenet Additional Facility AJ Lender under the Related Agreements and/or (iii) for general corporate purposes of the Group, which may include loans, distributions or other payments to the Company and its direct and indirect shareholders, share buybacks or a refinancing of outstanding debt.
|
27.
|
Subject to Clause 28 below and the provisions of the Indenture, for the purposes of any amendment or waiver, consent or other modification (including, with respect to any existing Default or Event of Default) that may be sought by the Company under the Credit Agreement or any other Finance Document on or after the date of this Agreement, the Telenet Additional Facility AJ Lender hereby consents to:
|
(a)
|
any and all of the items set out in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement; and
|
(b)
|
any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made either to implement the changes envisaged in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications)
to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement or to conform any Finance Document to Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement; and/or
|
(c)
|
any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made to conform any Finance Document to any Liberty Global Reference Agreement (provided that any amendment, waiver, consent or modification to conform the Credit Agreement or any other Finance Document to any Liberty Global Reference Agreement referred to at paragraphs (vi) to (xi), (xiii) and (xiv) and in respect of the schedules in relation to covenants, events of default or definitions in the Liberty Global Reference Agreements referred to at paragraphs (ii), (iii) and (v) of that definition, shall be limited to those that are mechanical in nature unless specifically referenced in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement and, in each case, any consequential amendments, waivers, consents or modifications),
|
28.
|
Following receipt of an amendment request from the Company and/or the Facility Agent in connection with all or any of the proposed amendments set out under Clause 27 above (the “
Requested Amendments
”
)
the Telenet Additional Facility AJ Lender shall confirm whether, having regard to the relevant provisions of the Indenture, it is required to consent to the Requested Amendments. If the Telenet Additional Facility AJ Lender is required to give such consent, it hereby acknowledges and agrees that the Facility Agent and/or the Security Agent may, but shall not be required to, send to the Telenet Additional Facility AJ Lender any further formal amendment request in connection with all, or any of the Requested Amendments and the Facility Agent and/or the Security Agent shall be authorised to consent on behalf of the Telenet Additional Facility AJ Lender, as a Lender under one or more Telenet Additional Facilities, to any such Requested Amendments (and the Facility Agent and/or the Security Agent shall be authorised to enter into any necessary documentation in connection with the same) and such consent shall be taken into account in calculating whether the Majority Lenders, or the relevant requisite Lenders, have consented to the relevant amendment, waiver or other modification to the Finance Documents in accordance with Clause 28 (
Amendments and Waivers
) of the Credit Agreement and Clause 28 (
Consents, Amendments and Override
) of the Intercreditor Agreement (as applicable), and any clause relating to amendments in any other Finance Document.
|
29.
|
The Telenet Additional Facility AJ Lender hereby waives receipt of any fee in connection with the consent in Clause 28 above, notwithstanding that other consenting Lenders under the Credit Agreement may be paid a fee in consideration of such Lenders’ consent to any or all of the foregoing amendments, waivers or other modifications.
|
30.
|
The Telenet Additional Facility AJ Lender and the Facility Agent agree to waive the notice period in respect of drawdown requests under Clause 5.1 (
Delivery of Requests
) of the Credit Agreement in respect of this Term Loan AJ Facility.
|
31.
|
The Borrower and the Company agree that, notwithstanding the provisions of Clause 12 (
Taxes)
of the Credit Agreement, in connection with any payment required to be made by an Obligor to the Telenet Additional Facility AJ Lender:
|
32.
|
The Telenet Additional Facility AJ Lender, the Borrower and the Facility Agent acknowledge and agree that (a) the Term Loan AJ Facility Loan shall be made by the Telenet Additional Facility AJ Lender directly to the Borrower to an account notified by the Borrower to the Telenet Additional Facility AJ Lender, rather than through the Facility Agent, and (b) in respect of any other payments of principal, interest or other amounts due under the Term Loan AJ Facility, (i) the Borrower shall make payments payable by it to the Telenet Additional Facility AJ Lender directly to the Telenet Additional Facility AJ Lender (or to such account as the Telenet Additional Facility AJ Lender may specify), and (ii) the Telenet Additional Facility AJ Lender shall make payments payable by it to the Borrower directly to the Borrower (or to such account as the Borrower may specify). The Telenet Additional Facility AJ Lender agrees that it shall promptly notify the Facility Agent if the Borrower fails to make any payment under subclause (b)(i) of this Clause 32 when due, and the Borrower agrees that it shall promptly notify the Facility Agent if the Telenet Additional Facility AJ Lender fails to make any payment under subclause (b)(ii) of this Clause 32 when due.
|
33.
|
The Telenet Additional Facility AJ Lender agrees that without prejudice to Clause 29.4 (
Procedure for Transfer by way of Novation
) of the Credit Agreement, each New Lender (as defined in the Transfer Certificate referred to below) shall become, by the execution by the Facility Agent of a Transfer Certificate substantially in the form of Schedule 3 (
Transfer Certificate
(
Cash
)) to this Agreement,
|
34.
|
The Facility Office and address for notices of the Telenet Additional Facility AJ Lender for the purposes of Clause 36.2 (
Contact details
) of the Credit Agreement will be that notified by the Telenet Additional Facility AJ Lender to the Facility Agent.
|
35.
|
For the purposes of the Term Loan AJ Facility and any Term Loan AJ Facility Loan, and notwithstanding any provision of a Finance Document to the contrary:
|
(a)
|
The following defined terms shall have the following meanings in the Finance Documents:
|
(b)
|
Where they relate to a Luxembourg company, references in the Finance Documents to:
|
(c)
|
Any guarantee given by any Luxembourg Guarantor does not constitute a suretyship (cautionnement) in the sense of articles 2011 and subsequent of the Luxembourg civil code.
|
(d)
|
The maximum liability of any Luxembourg Guarantor under the Finance Documents shall be limited so that the maximum amount payable by the relevant Luxembourg Guarantor for the obligations of any Obligor, which is not a direct or indirect Subsidiary of such Luxembourg Guarantor, hereunder shall at no time exceed the Maximum Amount.
|
(e)
|
Telenet International Finance S.à r.l. hereby expressly accepts and confirms, for the purposes of Articles 1278 and 1281 of the Luxembourg Civil Code, that notwithstanding any assignment, transfer and/or novation permitted under, and made in accordance with the provisions of this Agreement or the Finance Documents, the guarantee given by it guarantees all obligations of each Luxembourg Obligor (including without limitation, all obligations with respect to all rights and/or obligations so assigned, transferred or novated) and any security created under this Agreement or the Finance Documents shall be preserved for the benefit of any New Lender and each Luxembourg Obligor hereby accepts and confirms the aforementioned.
|
(f)
|
Qualifying Lender
means, in the case of a Luxembourg Borrower, a Lender which is entitled to receive interest payments free of withholding tax levied pursuant to the Luxembourg law of 23 December 2005, as amended, introducing a withholding tax of 20% on payments of interest or similar income made or ascribed by a paying agent established in Luxembourg to
|
36.
|
Each Existing Security Provider (other than the Company) irrevocably appoints the Company to act as its agent:
|
(a)
|
to give and receive all communications under the Finance Documents;
|
(b)
|
to supply all information concerning itself to any Finance Party; and
|
(c)
|
to sign all documents under or in connection with the Finance Documents.
|
37.
|
If a term of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect:
|
(a)
|
the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or
|
(b)
|
the legality, validity or enforceability in other jurisdictions of that or any other term of this Agreement.
|
38.
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
39.
|
Clause 39.1 (
Jurisdiction
) of the Credit Agreement is incorporated into this Agreement as if set out in full and as if references in that clause to “the Finance Documents” is to this Agreement.
|
40.
|
This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement.
|
41.
|
This Agreement is a Creditor Accession Undertaking as defined in the Intercreditor Agreement.
|
42.
|
The Borrower under the Term Loan AJ Facility hereby agrees that the Telenet Additional Facility AJ Lender may disclose confidential information supplied to it by or on behalf of any Obligor in connection with the Finance Documents to the extent such disclosure is required by the terms of the Notes.
|
43.
|
For the purposes of any assignment, transfer or novation of rights and/or obligations (in whole or in part) by the Telenet Additional Facility AJ Lender under Clause 29.3 (
Transfers by Lenders
) of the Credit Agreement, each of the Borrower and the Company hereby irrevocably consents to any assignment, transfer or novation made by the Telenet Additional Facility AJ Lender (i) by way of security in favour of The Bank of New York Mellon, London Branch (as security trustee under the Indenture) and (ii) following an Event of Default under and as defined in the Indenture. The Telenet Additional Facility AJ Lender may only deliver to the Facility Agent a completed Transfer Certificate if at that
|
44.
|
The parties acknowledge that this Agreement is a Finance Document.
|
Telenet Additional Facility AJ Lender
|
Term Loan AJ Facility Commitment
($)
|
Telenet Finance Luxembourg Notes S.à r.l.
|
1,000,000,000
|
|
|
Total
|
1,000,000,000
|
|
|
1.
|
Obligors
|
(a)
|
A copy of the articles of association or equivalent constitutional documents of each Obligor and each Existing Security Provider.
|
(b)
|
A copy of a resolution of the board of directors or equivalent of each Obligor and each Existing Security Provider approving the terms of, and the transactions contemplated by, this Agreement and any other Finance Documents to which it is, or will become, a party.
|
(c)
|
A specimen of the signature of each person authorised on behalf of each Obligor and each Existing Security Provider to execute or witness the execution of this Agreement and any other Finance Document or to sign or send any document or notice in connection with this Agreement and any other Finance Document.
|
(d)
|
An up-to-date extract from the Luxembourg Trade and Companies Register in respect of each Obligor and each Existing Security Provider incorporated in Luxembourg or, to the extent such Obligor or Existing Security Provider is not registered with the Luxembourg Trade and Companies Register, a certificate from a notary residing in Luxembourg.
|
(e)
|
An up-to-date negative certificate (
certificat de non-inscription d’une decision judiciaire
) issued by the Luxembourg Trade and Companies register in respect of each Obligor and each Existing Security Provider incorporated in Luxembourg or, to the extent such Obligor or Existing Security Provider is not registered with the Luxembourg Trade and Companies Register, a certificate on solvency of an authorised signatory of the relevant Obligor or Existing Security Provider (as applicable).
|
(f)
|
A copy of the minutes of the shareholders’ meeting of each Belgian Obligor and each Belgian Existing Security Provider in the form of a limited liability company (
naamloze vennootschap
) (except for Telenet Group Holding NV):
|
(i)
|
approving for the purposes of article 556 of the Belgian Companies Act, the terms of and transactions contemplated by this Agreement; and
|
(ii)
|
authorising named persons to fulfil the formalities with the Registry of the Commercial Court of the registered office of such Obligor or Existing Security Provider following the decision taken in accordance with the above.
|
(g)
|
A certificate of an authorised signatory of the Company:
|
(i)
|
confirming that utilising the Total Commitments (including the Term Loan AJ Facility Commitments) in full would not breach any limit binding on any Obligor or Existing Security Provider; and
|
(ii)
|
certifying that each copy document specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2.
|
Legal opinions
|
(a)
|
A legal opinion of Allen & Overy LLP, English legal advisers to the Facility Agent, addressed to the Finance Parties and the initial purchasers under the Purchase Agreement executed in respect of the Notes.
|
(b)
|
A legal opinion of Allen & Overy (Belgium) LLP, Belgian legal advisers to the Facility Agent, addressed to the Finance Parties and the initial purchasers under the Purchase Agreement executed in respect of the Notes.
|
(c)
|
A legal opinion of Allen & Overy,
société en commandite simple
(Luxembourg)
,
Luxembourg legal advisers to the Facility Agent, addressed to the Finance Parties and the initial purchasers under the Purchase Agreement executed in respect of the Notes.
|
(d)
|
A legal opinion of Ropes & Gray LLP, Delaware legal advisers to the Obligors and Existing Security Providers, addressed to the Finance Parties.
|
3.
|
Other Documents
|
(a)
|
Evidence that the agent of the Borrower under the Finance Documents for service of process in England has accepted its appointment.
|
(b)
|
A duly executed copy of the Fee Letter.
|
From:
|
[THE EXISTING LENDER] and [THE NEW LENDER]
|
(a)
|
Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement;
|
(b)
|
Clause 22.3 (
Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders
) of the Intercreditor Agreement; and
|
(c)
|
the Telenet Additional Facility Accession Agreement dated 13 December 2017, pursuant to which a $1,000,000,000 term loan facility is made available to the Borrower as a Telenet Additional Facility (
Term Loan AJ Facility
) under the Credit Agreement (the
Telenet Additional Facility AJ Accession Agreement
).
|
1.
|
We, [ ] (the
Existing Lender
) agree to novate and we, [ ] (the
New Lender
) agree to accept novation of all the Existing Lender's rights and obligations referred to in the Schedule on and from the Effective Date in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement and Clause 22.3 (
Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders
) of the Intercreditor Agreement.
|
2.
|
The New Lender confirms that it is bound by the terms of the Telenet Additional Facility AJ Accession Agreement from the Effective Date as if it were an original party thereto as a Telenet Additional Facility AJ Lender and shall acquire the same rights, grant the same consents and assume the same obligations towards the other parties to the Telenet Additional Facility AJ Accession Agreement as would have been acquired, granted and assumed had the New Lender been an original party to the Telenet Additional Facility AJ Accession Agreement as a Telenet Additional Facility AJ Lender.
|
3.
|
For the purposes of Articles 1278 and 1281 of the Luxembourg Civil Code and Article 1278 of the Belgian Civil Code, each of the Existing Lender, the Facility Agent and the New Lender agree and each of the Existing Security Providers and Guarantors acknowledge and accept that the Security Documents will be preserved for the benefit of the New Lender in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement.
|
4.
|
The New Lender represents on the date of this Transfer Certificate that:
|
(a)
|
it is a Qualifying Lender; and
|
(b)
|
it is not a Lender that has met the conditions described in any of paragraphs (a) to (c) of Clause 12.6 (
U.S. Taxes
) of the Credit Agreement.
|
5.
|
This Transfer Certificate shall take effect on the date of this Transfer Certificate.
|
6.
|
For the purposes of this Transfer Certificate, “
Effective Date
” means the date specified under the Facility Agent's name in the relevant signature page to this Transfer Certificate.
|
7.
|
Each party to this document agrees, the Facility Agent agrees on behalf of each Finance Party, and Telenet BVBA agrees on behalf of each Obligor, that this document is a Transfer Certificate notwithstanding that its form is different to that required by the Credit Agreement.
|
8.
|
The New Lender, agrees to become party to the Intercreditor Agreement as a Senior Lender for the purposes of the Intercreditor Agreement and confirm that, as from the date of this Transfer Certificate, it intends to be party to the Intercreditor Agreement as a Senior Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
9.
|
This Transfer Certificate is a Finance Document.
|
10.
|
This Transfer Certificate may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Transfer Certificate by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Transfer Certificate.
|
11.
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
Facility Office
|
[ ]
|
1.
|
Majority Lenders:
amend Clause 1.1 (
Definitions
) of the Credit Agreement to reduce the fractions specified in the definitions of Majority Lenders, from two thirds or more (for any or all purposes under the Credit Agreement or any other Finance Document (including for the purposes of any Telenet Additional Facility)) to more than 50.00% and to exclude the available commitments of defaulting lenders for the purposes of amendments or waivers.
|
2.
|
Super Majority Lenders
: amend Credit Agreement to provide for a definition of Super Majority Lenders so that amendments and waivers in respect of the release of any guarantee or security only requires the consent of Lenders representing 90.00% of Commitments.
|
3.
|
Tax
: amend Clause 12 (
Taxes
) to include any provisions (which are not materially adverse to the interests of the Lenders) required to accommodate an acceding Additional Borrower incorporated in a jurisdiction other than Belgium, the Netherlands, Luxembourg and the United States.
|
4.
|
Market Disruption
: amend the Credit Agreement to include market disruption provisions and the provision of alternative interest rates in accordance with recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market.
|
5.
|
Geographic restrictions
: amend Clause 29.9 (
Additional Borrowers
) to provide that, in addition to the existing ability for an Additional Borrower incorporated in Benelux and the US to accede (without requiring any Lender consent), to provide an ability to accede Additional Borrowers incorporated in any other jurisdictions with the consent of the Majority Lenders.
|
6.
|
Holding Companies
: amend Clause 21.9(b)(iii) to expressly permit a merger of Telenet Group Holding NV, Telenet BVBA or Telenet Vlaanderen NV or any of their intermediate holding companies subject to compliance with the merger regime in recent Liberty precedents.
|
7.
|
Changes to Thresholds:
in the definition of Permitted Security Interest, permit the Company to secure Financial Indebtedness on a
pari passu
or junior ranking basis provided that (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) the Net Total Debt to Consolidated Annualised EBITDA ratio on a pro forma basis would not be greater than 5.50:1.00 and provided that such Financial Indebtedness is subject to an intercreditor agreement on terms which are satisfactory to the Security Agent (acting on the instructions of the Majority Lenders) and where (in the case of such Financial Indebtedness being secured on a junior ranking basis) the rights of the holders of such Financial Indebtedness in respect of any payment will be contractually subordinated to the rights of the Lenders on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt, as referred to in recent Liberty precedent.
|
8.
|
Security and Guarantee Release
: amend the relevant provisions of the Credit Agreement (in particular Clauses 21.17 (
Share Security
) and 29.11 (
Resignation of an Obligor(other than the Company)
)) to provide that, subject to certain thresholds being met no Obligor nor any other member of the Group is required to provide any Security or guarantee other than Security over the shares that it holds in any Obligor, Security required under the terms of the Credit Agreement in respect of Subordinated Shareholder Loans and a guarantee from the Obligors under the terms of the Credit Agreement and include a provision to authorise the Security Agent to release any other Security or guarantees other than the aforementioned and to release Security in respect of Permitted Disposals and to permit relevant Security to be released if a Guarantor resigns in accordance with Clause 29.11 (
Resignation of an Obligor (other than the Compan
y)) provided that the guarantor coverage test would still be met notwithstanding such release.
|
9.
|
Defaulting Lender
: include standard defaulting lender provisions used in recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market so as the commitments of a defaulting lender may be cancelled and it will have no rights to vote in respect of such cancelled commitments. Clarify that no commitment fee will be payable to a defaulting lender.
|
10.
|
Assignments/Transfers of Lenders:
clarify that the Company should have the right to withhold consent in respect of an assignment/transfer of the Revolving Facility to an entity which is not a lender under a revolving facility to the wider Liberty group (subject to no consent being required in the case of transfers to other Lenders or affiliates of Lenders or following an event of default which is continuing). There should be no unreasonableness qualifier on this right (in respect of the Revolving Facility only). Remove requirement of deemed consent within 10 Business Days in respect of each Revolving Facility.
|
11.
|
Assignments/Transfers of Obligors
: amend Clause 29.2 (
Assignment or Transfer by Obligors
) so that any Benelux Borrower may assign or transfer any of its rights and obligations under the Revolving Facility or the Term Loans to another Benelux Borrower and so that any US Borrower may do the same to another US Borrower, in each case, without the prior consent of the Lenders provided that a solvency opinion and legal opinion are provided, if requested, in accordance with recent Liberty precedents in respect of an equivalent provision.
|
12.
|
Amendments
:
|
(a)
|
amend Clause 28 (
Amendments and waivers
) to introduce a class exception, whereby any amendment or waiver that relates only to the rights or obligations of a particular Utilisation or Facility and does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations or Facilities only requires the consent of the relevant proportion of Lenders participating in such Utilisation or Facility;
|
(b)
|
amend Clause 28.2 (
Exceptions
) to require the consent of affected Lenders only and not all Lenders (and make any consequential changes by amending for example, all references to matters requiring all Lender consent to only requiring affected Lender consent); and
|
(c)
|
include a new paragraph (d) to Clause 28.2 (
Exceptions
), to permit the Facility Agent to make technical, minor, operational and OID amendments without consent from any Lenders, on terms consistent with recent Liberty precedent as at the date of implementation of the amendments.
|
13.
|
Joint Ventures and solvent reorganisations
: amend the Credit Agreement to permit Telenet BVBA to contribute freely pledged loan and guarantee receivables to the Permitted Joint Venture’s share capital without requiring a release from the Security Agent (subject to confirmation or re-taking of security over such pledged loan and guarantee receivables).
|
14.
|
Accession Agreements:
amend each Accession Agreement to remove the restriction which prevents:
|
(a)
|
Telenet BVBA from arranging an Additional Facility if after giving effect to a utilisation thereunder, the ratio of Net Total Senior Debt to Consolidated Annualised EBITDA would be greater than 4.50:1; and
|
(b)
|
the Company from requesting the transfer of an Additional Facility pursuant to Clause 28.3 (
Non-Consenting Lenders
).
|
15.
|
Non-Consenting Lenders
: remove the timing window of 90 days during which the Company may effect the provisions set out in Clause 28.3 (
Non-Consenting Lenders
).
|
1.
|
Super Majority Lenders
: delete paragraph (a)(vii) of Clause 28.2 (
Exceptions
).
|
2.
|
Market Disruption:
amend the Credit Agreement to include provisions for the protection of reference banks and their officers in accordance with recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market.
|
3.
|
Amendments
:
|
(a)
|
include a new clause such that 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
|
(b)
|
delete paragraph (a)(vi) of Clause 28.2 (
Exceptions
) and provide that guarantees and security can be released with the consent of the Lenders representing 90% of Commitments.
|
4.
|
Additional Borrowers
: Additional Borrowers may be incorporated in the Kingdom of Belgium, Netherlands, Luxembourg or, in relation to any new Additional Facilities, in the United Kingdom.
|
5.
|
Mandatory Costs
: delete all references in each Additional Facility Accession Agreement to Mandatory Costs and any related provisions.
|
6.
|
Permitted Disposals
:
|
(a)
|
amend the definition of Permitted Disposal to include in addition to the existing “Permitted Disposals”:
|
(i)
|
disposals by one member of the Group to another member of the Group provided that, if such assets subject to the disposal are subject to existing security, the Borrower within 15 Business Days of such disposal ensures that the assets remain subject to security; and
|
(ii)
|
disposals of shares or other interests in project companies, entities excluded from the Group which are subsidiaries of the Company or joint venture companies (each as defined in recent Liberty precedent) or the assignment of any Financial Indebtedness owed to a member of the Group by any project companies, entities excluded from the Group which are subsidiaries of the Company or a joint venture company.
|
1.
|
Ancillary Facilities
: amend the Credit Agreement to provide that (i) a date specified in a conversion notice as the effective date for an ancillary facility commitment may be a date not less than 3 Business Days after the date such conversion notice is received by the Facility Agent, (ii) any proposed increase or reduction or extension of the ancillary facility commitment shall only take effect from a date not less than 3 Business Days after the date the Facility Agent has received notice of the relevant modification or variation or extension and (iii) an ancillary facility lender may demand repayment or prepayment of any amounts under its ancillary facility if the ancillary facility outstandings under that ancillary facility can be repaid by a revolving facility advance (and not less than 7 Business Days notice (or such shorter period as agreed to by the Company) is given to the relevant Borrower before payment becomes due).
|
2.
|
Defaulting Lender
: amend the Credit Agreement to include the right to replace a Lender (in whole and at par) if that Lender becomes a Defaulting Lender.
|
1.
|
Transfers
: amend clause 29.3 (
Transfers by Lenders
) of the Credit Agreement to provide that the consent of the Company is not required for any assignment or transfer by a Lender if an Event of Default is outstanding pursuant to any of clauses 22.2 (
Non-payment
), 22.6 (
Insolvency
), 22.7 (
Insolvency Proceedings
), 22.8 (
Creditors’ Process
) or 22.9 (
Similar Proceedings
) only (rather than if any Event of Default is outstanding).
|
2.
|
New RCF Maintenance Covenant
: amend the Credit Agreement to provide that amendments and waivers of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) to 20.4 (
Cure provisions
) and the new acceleration clause at (d) above shall only be made with the consent of the Company and the Composite Revolving Facility Instructing Group and shall not require the consent of any other Finance Party.
|
1.
|
Lender Assignments
: amend Clause 29 (
Changes to Parties
) of the Credit Agreement to provide that Lenders may transfer their rights and obligations under the Credit Agreement by way of assignment (subject to equivalent conditionality (including as set out in Clause 29.3 (
Transfers by Lenders of the Credit Agreement
)) as applies to the regime for transfers by Lenders of their rights and obligations by way of novation under the Credit Agreement and otherwise in accordance with recent Liberty precedent).
|
1.
|
Solvent Liquidation:
Amend the Credit Agreement to provide for releases of Security as a result of, and in connection with, any solvent liquidation or dissolution that complies with Clause 21.24 (
Internal Reorganisations
) of the Credit Agreement.
|
2.
|
Non-Consenting Lenders:
Remove the timing window of 90 days during which the Company may exercise its rights as set out in Clause 28.3 (
Non Consenting Lenders
) such that the Company may exercise such rights at any time.
|
3.
|
Waivers
: Add a new limb to Clause 28.1 (
Procedure
) as follows:
|
4.
|
Transfers
: Delete paragraph (b) of Clause 29.3 (
Transfers by Lenders
) in its entirety and replace it with the following:
|
1.
|
Agent’s Spot Rate of Exchange:
delete the definition of Agent’s Spot Rate of Exchange and replace it with the following:
|
2.
|
Ancillary Facility Lender:
delete the definition of Ancillary Facility Lender and replace it with the following:
|
3.
|
Consolidated EBITDA:
amend the definition of Consolidated EBITDA to:
|
(a)
|
amend limb (l) to move the words “any Holding Company Expenses paid to the extent that they were permitted to be paid under this Agreement for such Measurement Period” to a new paragraph (m) and to delete the word “and” before “any Holding Company Expenses”; and
|
(b)
|
amend limb (n) to include the words “or transfer of assets” after the words “sale of assets”.
|
4.
|
Distribution Business:
include the following new definition:
|
(a)
|
the business of upgrading, constructing, creating, developing, acquiring, operating, owning, leasing and maintaining cable television networks (including for the avoidance of doubt master antenna television, satellite master antenna television, single and multi-channel microwave single or multi-point distribution systems and direct-to-home satellite systems) for the transmission, reception and/or delivery of multi-channel television and radio programming, telephony and internet and/or data services to the residential markets; or
|
(b)
|
any business which is incidental to or related to and, in either case, material to such business.”
|
5.
|
Excess Capacity Network Service:
include the following new definition:
|
6.
|
Financial Indebtedness:
amend the definition of Financial Indebtedness to:
|
(a)
|
delete limb (e); and
|
(b)
|
delete limb (d) and replace it with the following:
|
7.
|
Guarantor:
delete the definition of Guarantor and replace it with the following:
|
8.
|
Impaired Agent:
amend limb (c) of the definition of Impaired Agent to include the words “or (c)” before the words “of the definition of “
Defaulting Lender
”” and to replace the word “or” between the words “paragraph (a)” and “(b)”with a comma.
|
9.
|
Majority Lenders:
delete the final proviso paragraph of the definition of Majority Lenders and provide that it is subject to the snooze and lose provision to be included pursuant to paragraph 21 of Schedule 5 and Clause 10.7(d).
|
10.
|
Permitted Acquisition:
amend the definition of Permitted Acquisition to:
|
(a)
|
include an additional limb as follows:
|
(b)
|
amend limb (m) to include the words “, within 60 days of the date of such conversion,” after the words “ensure that the Security Agent is”;
|
(c)
|
delete the proviso at the end of the definition after paragraph (u); and
|
(d)
|
include an additional limb as follows:
|
11.
|
Permitted Disposal
: amend the definition of Permitted Disposal to:
|
(a)
|
amend limb (t) to delete “€50,000,000” and replace it with “€150,000,000” and to delete “1%” and replace it with “three per cent.”;
|
(b)
|
amend limb (t) to add the following to the end of limb (t) of the definition of Permitted Disposal:
|
(c)
|
amend limb (hh) to delete each reference to “€50,000,000” and replace it with “€150,000,000”;
|
(d)
|
amend limb (ii) to:
|
(i)
|
include, at the end of the limb, the words “and any disposal of assets pursuant to sale and leaseback transactions constituting Financial Indebtedness to the extent such Financial Indebtedness is permitted under this Agreement” after “in any financial year”;
|
(ii)
|
delete “2%” and replace it with “3%”; and
|
(iii)
|
delete “€100,000,000” and replace it with “€150,000,000”;
|
(e)
|
include an additional limb as follows:
|
(A)
|
undertakings, assets, rights and revenues comprising interests in the share capital of any person engaged solely in the competitive local exchange carrier (CLEC) business, including without limitation, the business of providing traditional voice and data services and services based on Transmission Control Protocol/Internet Protocol (RCP/IP) technology and other undertakings, assets, rights or revenues constituting a part of such businesses; and
|
(B)
|
undertakings, assets, rights and revenues comprising interests in the share capital of any person engaged solely in the business of television and radio programming, including without limitation, the business or creating and distributing special interest television channels, radio programmes, pay per view programmes and near video on demand services and other undertakings, assets, rights or revenues constituting a part of such businesses;”; and
|
(f)
|
delete limb (ww)(iii).
|
12.
|
Permitted Financial Indebtedness:
amend the definition of Permitted Financial Indebtedness to:
|
(a)
|
include an additional limb as follows:
|
(b)
|
include an additional limb as follows:
|
(A)
|
the extent of such recourse to such member of the Group is limited solely to the amount of any recoveries made on any such enforcement;
|
(B)
|
such person or persons are not entitled, pursuant to the terms of any agreement evidencing any right or claim arising out of or in connection with such Financial Indebtedness, to commence proceedings for the winding up, dissolution or administration of any member of the Group (or proceedings having an equivalent effect) or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of any member of the Group or any of its assets (save only for the Non-Distribution Business Assets the subject of that Security Interest) until after the Commitments have been reduced to zero and all amounts outstanding under the Finance Documents have been repaid or paid in full; and
|
(C)
|
the aggregate outstanding amount of all such Financial Indebtedness of all members of the Group does not exceed €100,000,000 (or its equivalent in other currencies);”
|
(c)
|
amend limb (i) to delete the words “under paragraph (jj), (kk) and (ll) of that definition”; and
|
(d)
|
amend limb (r) to delete the words “no Default or”.
|
13.
|
Permitted Joint Venture:
delete the words “provided that no Event of Default has occurred and is continuing at the time of such proposed acquisition”.
|
14.
|
Construction
:
|
(a)
|
Add a new limb to Clause 1.2 (
Construction
) as follows:
|
15.
|
Permitted Payments
:
|
(a)
|
Amend Clause 21.11 (
Restricted Payments
) to include an additional limb (c) as follows:
|
“(c)
|
The restriction contained in paragraph (a) on the payment by any member of the Group of Management Fees shall cease to apply during such period as the applicable ratio for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) is 3.50:1 (or less), provided that no Management Fees may be paid by any member of the Group at any time after a Relevant Event has occurred or if a Relevant Event would result from such payment.”
|
(b)
|
Include the following new definition:
|
(c)
|
Include the following additional limb to the definition of Permitted Payment:
|
(d)
|
Amend limb (j) of the definition of Permitted Payment to delete the words “paragraph (s)” and replace them with “paragraph (jj)”.
|
(e)
|
Amend limb (cc) of the definition of Permitted Payment to delete “€10,000,000” and replace it with “€50,000,000”.
|
(f)
|
Delete limb (ll) of the definition of Permitted Payment and replace it with the following:
|
(g)
|
Delete “2%” and replace it with “3%” at limb (kk) of the definition of Permitted Payment.
|
(h)
|
Amend limb (r)(i) of the definition of Permitted Payment to replace the words “three days” with the words “three Business Days”.
|
16.
|
Signing Date:
amend all references to “the date of this Agreement” to “the Signing Date”.
|
17.
|
Wider Group:
amend paragraph (b) of the definition of Wider Group to add the words “(other than a member of the Group)” at the end.
|
18.
|
Spin-Off
: delete the existing definition of Spin-Off at Clause 10.2(c)(xi) (
Mandatory Prepayment - Change of Control
) and replace it with the following:
|
19.
|
Borrower
: delete the existing definition of Borrower and replace it with the following:
|
20.
|
Sub-participations
:
|
(a)
|
Include a new definition of Sub-participation as follows:
|
(b)
|
Amend Clause 29.3 (
Transfers by Lenders
) in order that this clause includes a restriction on Sub-participations of rights and obligations and is subject to the same consent regime as for assignments and transfers in accordance with recent Liberty precedent.
|
(c)
|
Add a new clause as follows:
|
(a)
|
such Lender remains a Lender under this Agreement with all rights and obligations pertaining thereto and remains liable under the Finance Documents for any such obligation;
|
(b)
|
such Lender retains exclusive control over all rights and obligations in relation to the participations and Commitments that are the subject of the relevant agreement or arrangement, including all voting rights (for the avoidance of doubt, free of any agreement or understanding pursuant to which it is required to or will consult with any other person in relation to the exercise of any such rights and/or obligations), unless:
|
(i)
|
the proposed sub-participant is a person to whom the relevant rights and obligations could have been assigned or transferred in accordance with the terms of this Clause 29; and
|
(ii)
|
prior to entering into the relevant agreement or arrangement, the relevant Lender provides the Company with full details of that proposed sub-participant and any voting, consultation or other rights to be granted to the sub-participant;
|
(c)
|
the relationship between the Lender and the proposed sub-participant is that of a contractual debtor and creditor (including in the bankruptcy or similar event of the Lender or an Obligor);
|
(d)
|
the proposed sub-participant will have no proprietary interest in the benefit of this Agreement or any of the Finance Documents or in any monies received by the relevant Lender under or in relation to this Agreement or any of the Finance Documents (in its capacity as sub-participant under that arrangement); and
|
(e)
|
the proposed sub-participant will under no circumstances: (i) be subrogated to, or be substituted in respect of, the relevant Lender’s claims under this Agreement or any of the Finance Documents; or (ii) otherwise have any contractual relationship with, or rights against, the Obligors under or in relation to this Agreement or any of the Finance Documents (in its capacity as sub-participant under that arrangement).”
|
(d)
|
Include the additional provision as follows:
|
“(a)
|
In the case of a Sub-participation (in each case, other than any non-voting derivatives (which are not participations) which would otherwise be caught by the definition of “Sub-participation”), the person granting the Sub-participation (or similar right) shall, acting solely for these purposes as non-fiduciary agent for the Company, maintain a register (a “
Sub-Participant Register
”) on which it enters the name and address of each sub-participant (or person holding the similar right) and the Commitment and obligations (including principal and stated interest) in which each sub-participant (or other person) has an interest or obligation.
|
(b)
|
Notwithstanding anything to the contrary hereunder, including without limitation Clause 24 (
Evidence and Calculations
), the entries in the Sub- Participant Register shall be conclusive absent manifest error, and such person maintaining the Sub-Participant Register shall treat each person whose name is recorded in the Sub-Participant Register as the owner of such Sub-participation (or similar right) for all purposes of a Finance Document notwithstanding any notice to the contrary.
|
(c)
|
Without prejudice to the other provisions of this Clause 29, no Lender shall have any obligation to disclose all or any portion of the Sub-Participant Register to any person (including the identity of any sub-participant or any
|
(e)
|
Amend Clause [23.14 (
Relationship with Lenders
)] to include an additional sub-paragraph as follows:
|
21.
|
Additional Facilities:
|
(a)
|
Add a new paragraph (i) to Clause 2.2 (
Telenet Additional Facility
) as follows:
|
(b)
|
Amend the Additional Facilities Cap as defined in Clause 2.2(g) (
Telenet Additional Facility
) such that:
|
(i)
|
it includes an additional limb for the aggregate amount of any voluntary prepayments of (A) Term Facility Advances that are secured on a
pari passu
basis with the other Facilities or (B) Advances under Revolving Facilities (to the extent accompanied by a corresponding permanent cancellation of the relevant Revolving Facility Commitments), in each case, to the extent the relevant prepayment or cancellation is not funded or effected with any long-term Financial Indebtedness (including Financial Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced with long-term Financial Indebtedness); and
|
(ii)
|
the Company shall have the ability to classify such amounts of Financial Indebtedness on the date of their incurrence and shall only be required to include the amount and type of such Financial Indebtedness in one of such sub-paragraphs and will be permitted on the date of such incurrence to divide and classify an item of such Financial Indebtedness in more than one of the types of Financial Indebtedness described in such paragraphs, and, from time to time, may reclassify all or a portion of such Financial Indebtedness, in any manner.
|
22.
|
Consolidated EBITDA
: amend the definition of Consolidated EBITDA under the Credit Agreement to provide that any adjustments to reduce the impact of the cumulative effect
|
23.
|
Additional Obligors
: Amend the Credit Agreement to provide that any Affiliate of the Company may accede to the Credit Agreement as a Guarantor in accordance with Clause 29.10 (
Additional Guarantors
) (provided that Security has been granted in form and substance satisfactory to the Facility Agent (acting reasonably) in favour of the Security Agent over 100% of its shares and all rights in relations to loans from members of the Wider Group to it) and that such Affiliate shall be a member of the Group and an Additional Guarantor. Add a new definition of “Affiliate Subsidiary” to Clause 1.1 (
Definitions
) such that it means any Affiliate of the Company that accedes to the Credit Agreement as a Guarantor pursuant to the amendments described in this paragraph and provided that it has not resigned as a Guarantor in accordance with the terms of the Credit Agreement.
|
24.
|
Right of Repayment and Cancellation in Relation to a Single Lender:
delete Clause 10.8(c)(i) and replace it with the following:
|
25.
|
Alternative Benchmarks
:
|
(a)
|
Add the following new definitions to Clause 1.1 (
Definitions
) as follows:
|
(b)
|
Replace the definition of “Screen Rate” in Clause 1.1 (
Definitions
) with the following:
|
(i)
|
at any time prior to an Alternative Benchmark Commencement Date in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
|
(ii)
|
at any time on or following an Alternative Benchmark Commencement Date in relation to LIBOR, the Alternative Benchmark Rate for the relevant currency and period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date; and
|
(i)
|
at any time prior to an Alternative Benchmark Commencement Date in relation to EURIBOR, the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
|
(ii)
|
at any time on or following an Alternative Benchmark Commencement Date in relation to EURIBOR, the Alternative Benchmark Rate for Euro for the relevant period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date,
|
26.
|
ERISA
:
|
(a)
|
Replace the definition of “ERISA Affiliate” in Clause 1.1 (
Definitions
) with the following:
|
(b)
|
Replace the definition of “Plan” in Clause 1.1 (
Definitions
) with the following:
|
(a)
|
maintained by any Obligor or any ERISA Affiliate; or
|
(b)
|
to which any Obligor or any ERISA Affiliate is required to make any payment or contribution.
|
(c)
|
Replace the definition of “Reportable Event” in Clause 1.1 (
Definitions
) with the following:
|
(a)
|
an event specified as such in section 4043 of ERISA or any regulation, other than an event in relation to which the requirement to give notice of that event is waived by any regulation; or
|
(b)
|
a failure to meet the minimum funding standard under section 412 or 430 of the Code or section 302 of ERISA, whether or not waived.
|
(d)
|
Amend Clause 18.16 (
ERISA
) to delete the words “member of the Group or”.
|
(e)
|
Delete paragraph (c) of Clause 19.6 (
Notification of Default
).
|
(f)
|
Delete Clause 21.19 (
ERISA
) and replace it with the following:
|
(a)
|
Each Obligor must as soon as reasonably practicable upon becoming aware of it notify the Facility Agent of:
|
(ii)
|
the termination of or withdrawal from, or any circumstances reasonably likely to result in the termination of or withdrawal from, any Plan; and
|
(iii)
|
any material non-compliance with any law or regulation relating to any Plan which is or is reasonably likely to have a Material Adverse Effect.
|
(b)
|
Each Obligor and its ERISA Affiliates must be, and remain, in compliance in all material respects with all laws and regulations relating to each of its Plans.
|
(c)
|
Each of the Obligors and its ERISA Affiliates must ensure that no event or condition exists at any time in relation to a Plan which is reasonably likely to result in the imposition of a lien or other encumbrance on any of its assets or which is reasonably likely to have a Material Adverse Effect.”
|
(g)
|
Delete Clause 22.15 (
ERISA
).
|
27.
|
Limited Condition Transaction
: amend the definition of “Limited Condition Transaction” in Clause 1.1 (
Definitions
) to include a third sub-paragraph as follows:
|
28.
|
Rollover
: Add a new definition of “Rollover Loan” in Clause 1.1 (
Definitions
) as follows:
|
(a)
|
“
Rollover Loan
” means:
|
(a)
|
a Rollover Advance that is for an amount which is equal to or less than the Maturing Advance in respect of which that Rollover Advance is being drawn to refinance; and
|
(b)
|
an Advance in relation to a Revolving Facility:
|
(i)
|
made or to be made on the same day that a demand by the Facility Agent pursuant to a drawing in respect of a Documentary Credit is due to be met;
|
(ii)
|
the aggregate amount of which is equal to or less than the amount of the relevant claim in respect of that Documentary Credit;
|
(iii)
|
in the same currency as the relevant claim in respect of that Documentary Credit; and
|
(iii)
|
made or to be made for the purpose of satisfying the relevant claim in respect of that Documentary Credit.
|
(b)
|
Amend paragraph (a) of Clause 4.2 (
Further Conditions Precedent
) to delete the reference to “Rollover Advance” and replace it with a reference to “Rollover Loan”.
|
(c)
|
Amend paragraph (c) of Clause 4.2 (
Further Conditions Precedent
), to delete the following words “Rollover Advance provided that the amount of the Maturing Advance is equal to or greater than the amount of that Rollover Advance” and
|
(d)
|
Amend Clause 8.2(a) (
Unavailability of Optional Currency
) to delete the reference to “Rollover Advance” and replace it with a reference to “Rollover Loan”.
|
(e)
|
Amend the title to Clause 9.2 (
Rollover Advances
) (and all other references in the Credit Agreement to that title) to refer to “(
Rollover
)” and further amend it so that the words “and in an amount which is equal to or less than” on the 6
th
line are deleted.
|
29.
|
Cost of Funds
:
|
(a)
|
Amend paragraph (b) of Clause 13.4 (
Cost of Funds
) such that it also applies if LIBOR or EURIBOR is to be determined by reference to a Reference Bank Rate or an Alternative Reference Bank Rate and to provide that, in entering into negotiations with the Company with a view to agreeing a substitute basis for determining the rate of interest, the Facility Agent may act in its sole discretion and will not be required to consult with or seek any consent or instruction from the Lenders or any other Finance Party.
|
(b)
|
Delete paragraph (c) of Clause 13.4 (
Cost of Funds
) and replace it with the following:
|
(c)
|
Amend paragraph (e) of Clause 13.4 (
Cost of Funds
) to provide that if a Lender does not supply a quotation by the given time period in paragraph (a)(ii), the rate of interest for that Lender will be the weighted average of the quotations notified to the Facility Agent by the other Lenders.
|
30.
|
US Regulations
:
|
(a)
|
Add a new definition of Regulation U in Clause 1.1 (
Definitions
) as follows:
|
(b)
|
Replace Clause 18.17 (
United States Regulation
) with the following:
|
(c)
|
Delete Clause 18.19 (
Margin stock
) and replace it with the following:
|
31.
|
Amendments and Waivers
:
|
32.
|
Guarantees
: amend Clause 21.13 (
Loans and Guarantees
) to:
|
(a)
|
add the words “in respect of Financial Indebtedness only” after the words “no member of the Group will make any loans, grant any credit or give any guarantee”;
|
(b)
|
add a new paragraph as a carve out as follows:
|
(c)
|
delete “€100,000,000” and replace it with “€150,000,000” and delete “2%” and replace it with “3%” at Clause 21.13(bb) (
Loans and Guarantees
);
|
(d)
|
amend paragraph (g) to include an additional limb (v) as follows:
|
“(v)
|
by an Obligor in respect of the liabilities of any other member of the Group which is not an Obligor provided that that other member of the Group must become an Additional Guarantor in accordance with Clause 29.10 (
Additional Guarantors
) within 30 days of the granting of the guarantee made pursuant to this paragraph (v);”
|
(e)
|
amend paragraph (z) to delete “€10,000,000” and replace it with “€25,000,000”; and
|
(f)
|
to include additional limbs as follows:
|
(i)
|
“any loans or guarantees relating to Excess Capacity Network Services provided that the price payable to 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 Group in providing such Excess Capacity Network Services;”; and
|
(ii)
|
“any guarantees or similar undertakings granted by any member of the Group in favour of any tax authority in respect of any obligations of a member of the Group in respect of tax in order to facilitate the winding up of any member of the Group provided that the Facility Agent shall have first received confirmation from the Company that based on discussions with such tax authority and the Company’s reasonable assumptions, the Company does not believe that the liability under such guarantee will exceed €15,000,000 (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);”
|
33.
|
Spin Parent
: delete the following sentence in paragraph (b) of Clause 10.2 (
Mandatory Prepayment – Change of Control
):
|
34.
|
Reporting
:
|
(a)
|
Delete the definition of GAAP in Clause 1.1 (
Definitions
) and replace it with the following:
|
(b)
|
Delete the definition of IFRS in Clause 1.1 (
Definitions
) and replace it with the following:
|
(c)
|
Delete Clause 19.5 (
Change in Accounting Principles
) in its entirety and replace it with the following:
|
“(a)
|
Except as otherwise expressly provided below or in this Agreement, all ratios and calculations based on IFRS contained in this Agreement shall be computed in conformity with IFRS.
|
(b)
|
At any time after the OFS Date, the Company may elect to apply for all purposes of this Agreement, in lieu of IFRS, GAAP and, upon such election, references to IFRS herein will be construed to mean GAAP;
provided
that:
|
(i)
|
all financial statements and reports to be provided, after such election, pursuant to this Agreement shall be prepared on the basis of GAAP as in effect from time to time (including that, upon first reporting its financial year results under GAAP, the financial statements of the Reporting Entity shall be restated on the basis of GAAP for the year ending immediately prior to the first financial year for which financial statements have been prepared on the basis of GAAP); and
|
(ii)
|
from and after such election, all ratios, computations and other determinations based on GAAP contained in this Agreement shall, at the Company’s option:
|
(A)
|
continue to be computed in conformity with GAAP (
provided
that, following such election, the annual and quarterly information required by paragraphs (a)(i) and (a)(ii) of Clause 19.1 (
Financial Statements
) shall include a reconciliation, either in the footnotes thereto or in a separate report delivered therewith, of such GAAP presentation to the corresponding GAAP presentation of such financial information); or
|
(B)
|
be computed in conformity with GAAP with retroactive effect being given thereto assuming that such election had been made on the OFS Date, subject to any further election in accordance with the definition of GAAP.
|
(d)
|
Amend paragraphs (a)(i) and (a)(ii) of Clause 19.1 (
Financial Statements
) to provide that the relevant financial statements or accounts (as applicable) shall be prepared in accordance with IFRS.
|
35.
|
Business Division Transactions and Joint Ventures
:
|
(a)
|
In Clause 1.1 (
Definitions
):
|
(i)
|
amend the definition of “Business Division Transaction” to delete the words “, in each case, where such transaction has the prior approval of the Majority Lenders”; and
|
(ii)
|
add the following new definitions:
|
(b)
|
Amend the definition of Permitted Payments and Clause 21.13 (
Loans and Guarantees
) to include the following additional carve outs in each such clause:
|
(i)
|
“in relation to any Permitted Business Division Transaction; and
|
(ii)
|
in relation to any Acceptable Joint Venture.”
|
(c)
|
Amend paragraph (m) of the definition of Permitted Disposal and paragraph (s)(iv) of the definition of Permitted Payment such that the word “Permitted” is added before the words “Business Division Transaction”.
|
36.
|
Permitted Security Interest
: amend the definition of “Permitted Security Interest” in Clause 1.1 (
Definitions
):
|
(a)
|
to include in addition to the existing “Permitted Security Interests”:
|
(b)
|
include the following additional limb:
|
37.
|
Permitted Acquisitions and Permitted Joint Ventures
: delete sub-paragraph (e)(iii) of the definition of Permitted Acquisition in Clause 1.1 (
Definitions
) and delete sub-paragraph (b)(ii) of the definition of Permitted Joint Venture in Clause 1.1 (
Definitions
).
|
38.
|
Auditors
: delete the definition of “Auditors” in Clause 1.1 (
Definitions
) and replace it with the following:
|
39.
|
Additional Facilities
: amend paragraph (g) and sub-paragraph (g)(i) of Clause 2.2 (
Telenet Additional Facility
) to read as follows:
|
“(g)
|
Subject to paragraph (h) below, the aggregate principal amount of any proposed Telenet Additional Facility shall not, at the election of the Company acting in its sole discretion (x) on the date that the Telenet Additional Facility becomes effective (giving pro forma effect to the intended use of proceeds of such Telenet Additional Facility and assuming that the entire amount of that Telenet Additional Facility is drawn on such date, and provided that an election that this sub-paragraph (x) shall apply may not be made in relation to that Telenet Additional Facility if an election that sub-paragraph (y) shall apply has previously been made in relation to that Telenet Additional Facility) or (y) on the date of each Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)) of that Telenet Additional Facility (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that Telenet Additional Facility is drawn) exceed the aggregate of the sum of:
|
(i)
|
an unlimited amount provided that on a pro forma basis Net Senior Debt to Consolidated Annualised EBITDA is equal to or less than 4.50:1;
|
40.
|
Construction
:
|
(a)
|
Amend Clause 1.2(a) (
Construction
) to add the following additional limbs:
|
(i)
|
“
fair market value
” unless otherwise specified, wherever such term is used in this Agreement, may be conclusively established by means of an officer’s certificate or a resolution of the board of directors of the Company, any Permitted Affiliate Parent or any Affiliate Subsidiary setting out such fair market value as determined by such officer or such board of directors in good faith;
|
(ii)
|
any matter being “
permitted
” under this Agreement or any other Finance Document shall include references to such matters not being prohibited or otherwise being approved under this Agreement or any other such Finance Document; and
|
(iii)
|
“
consolidated
” in connection with the financial position of, financial statements of or accounts of or financial definitions in relation to, the Group shall be construed to mean that the accounts of any Affiliate Subsidiary shall be combined for the purpose of determining such financial position, financial statements, accounts or financial definitions.
|
(b)
|
Amend Clause 1.2 (
Construction
) to add the following additional paragraphs:
|
“(x)
|
No personal liability shall attach to any director, officer or employee of any member of the Wider Group or Group for any representation or statement made by that member of the Wider Group or Group (as applicable) in a certificate signed by such director, officer or employee; and
|
(y)
|
No Default, Event of Default or breach of any representation and warranty or undertaking under the Finance Documents shall arise merely as a result of a subsequent change in the Euro equivalent of any relevant amount due to fluctuations in exchange rates.”
|
(c)
|
Amend Clause 1.2 (
Construction
) to include the following wording at the start of sub-paragraph (a)(xvii)(C) of Clause 1.2 (
Construction
):
|
(d)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(e)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(f)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(g)
|
Amend Clause 1.2 (
Construction
) to delete limb (v) of paragraph (a) and replace it with the following:
|
(h)
|
Amend Clause 1.2 (
Construction
) to delete limb (viii) of paragraph (a) and replace it with the following:
|
(i)
|
Amend Clause 1.2 (
Construction
) to include an additional limb of Clause 1.2 as follows:
|
(j)
|
Amend Clause 1.2 (
Construction
) to include an additional limb of Clause 1.2 as follows:
|
“(a)
|
This Agreement is entered into subject to, and with the benefit of, the terms of the Intercreditor Agreement.
|
(b)
|
Notwithstanding anything to the contrary in this Agreement, the terms of the Intercreditor Agreement will prevail if there is a conflict between the terms of this Agreement and the terms of the Intercreditor Agreement.”
|
(k)
|
Where relevant in the Credit Agreement, amend references to “company” or “entity” to “person” in accordance with paragraph (a)(vii) of Clause 1.2 (
Construction
).
|
41.
|
Increase
: amend Clause 2.1 (
Increase
) to:
|
(a)
|
delete sub-paragraphs (a)(i) and (a)(ii); and
|
(b)
|
delete sub-paragraph (a)(iii) and replace it with the following:
|
“(iii)
|
at the election of the Company acting in its sole discretion, it shall be a condition:
|
(A)
|
that the aggregate principal amount of any proposed increase in the Commitments shall not exceed,
mutatis mutandis
, the Additional Facilities Cap on the date that such increase in the Commitments becomes effective (giving pro forma effect to the intended use of proceeds of such increased Commitment and assuming that the entire amount of that increased Commitment is drawn on such date, and provided that an election that this paragraph (A) shall apply may not be made in relation to that increased Commitment if an election that paragraph (B) shall apply has previously been made in relation to that increased Commitment); or
|
(B)
|
to any Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)) of that increased Commitment that the aggregate principal amount of that increased Commitment to be drawn would not exceed,
mutatis mutandis
, the Additional Facilities Cap on the date of that Utilisation (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that increased Commitment is drawn); and”
|
42.
|
Increased Costs
:
|
(a)
|
Amend the first paragraph of Clause 14.1 (
Increased Costs
) to add “within ten Business Days of demand by the Facility Agent,” after “the Company must” in the first line.
|
(b)
|
Delete paragraph (a) of Clause 14.3 (
Claims
) and replace it with the following:
|
“(a)
|
A Finance Party intending to make a claim pursuant to Clause 14.1 (
Increased Costs
) shall, as soon as is reasonably practicable after that Finance Party becomes aware that circumstances have arisen which entitle it to make such claim, notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.”
|
43.
|
Springing Financial Covenant
: amend the covenant set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) so that is reads as follows:
|
“(a)
|
Subject to Clause 22.5 (
Cross-default and Cross-acceleration
), in the event that on the last day of a Measurement Period the aggregate of the Telenet Additional Facility Outstandings under any Revolving Facility (in each case, other than Documentary Credits that are cash collateralised or undrawn) and the net indebtedness outstanding under each Ancillary Facility less Cash of the Group exceeds an amount equal to 40 per cent. of the aggregate of the Revolving Facility Commitments and each Ancillary Facility Commitment (the “
Financial Ratio Test Condition
”), the Company shall procure that the ratio of Net Total Debt to Consolidated Annualised EBITDA on that day (the “
Financial Ratio
”) shall not exceed 6.00:1 unless otherwise agreed in writing by the Composite Revolving Facility Instructing Group and the Company.
|
(b)
|
If the financial covenant set out in paragraph (a) has been breached for a Measurement Period but is complied with on the last day of the next Measurement Period (either because the Financial Ratio Test Condition is not met for that next Measurement Period or because the Financial Ratio does not exceed 6.00:1 for that next Measurement Period), then, the prior breach of such financial covenant or any Event of Default arising therefrom shall not (or shall be deemed to not) directly or indirectly constitute, or result in, a breach of any representation, warranty, undertaking or other term in the Finance Documents or a Default or an Event of Default unless the Facility Agent has taken any action under Clause 22.18 (
Maintenance Covenant Revolving Facility Acceleration
) before the delivery of the certificate referred to at Clause 19.3(a) (
Compliance Certificate
) in respect of that next Measurement Period.”
|
44.
|
Financial Information:
amend paragraph (a) of Clause 19.3 (
Compliance Certificate
) so that it reads as follows:
|
“(a)
|
The Company must supply to the Facility Agent a Compliance Certificate with each set of its financial statements sent to the Facility Agent under this Agreement if, as at the last day of the Measurement Period ending on the date of such financial statements, the Financial Ratio Test Condition is met.”
|
45.
|
Cure Provisions:
delete Clause 20.4 (
Cure Provisions
) and replace it with the following:
|
“
20.4
|
Cure Provisions
|
(a)
|
The Company may cure a breach of the financial ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) by procuring that:
|
(i)
|
additional equity is injected into, and/or additional Subordinated Shareholder Loans is provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been deducted from Net Total Debt for the Measurement Period in respect of which the breach arose, would have avoided the breach; or
|
(ii)
|
additional equity is injected into, and/or additional Subordinated Shareholder Loans is provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been added to Consolidated Annualised EBITDA for the Measurement Period in respect of which the breach arose, would have avoided the breach; or
|
(iii)
|
any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility are prepaid (from any source selected by the Company in its sole discretion) in an amount which if
|
(b)
|
A cure under this Clause 20.4 will not be effective unless:
|
(i)
|
in the case of paragraph (a)(i) or (a)(ii) above, an amount equal to or greater than the required amount of additional equity or the proceeds of any Subordinated Shareholder Loans is received by one or more members of the Group; or
|
(ii)
|
in the case of paragraph (a)(iii) above, the amount of any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility that are required to be prepaid are so prepaid,
|
(c)
|
No cure may be made under this Clause 20.4 (
Cure Provisions
)
|
(i)
|
in respect of more than five Measurement Periods during the life of the Telenet Additional Facilities; or
|
(ii)
|
in respect of consecutive Measurement Periods.
|
(d)
|
The Company shall make an election (at its sole discretion) by notice to the Facility Agent prior to the end of the Cure Period as to whether a breach of the financial ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) shall be cured pursuant to a recalculation as described in either sub-paragraph (a)(i), (a)(ii) or (a)(iii) above.
|
(e)
|
If the Company makes an election for a recalculation as described in sub-paragraphs (a)(i) or (a)(ii) above, it shall be under no obligation to apply the amount of additional equity or the proceeds of any Subordinated Shareholder Loans that are received by one or more members of the Group in prepayment of the Facilities or for any other specific purpose and such amount will be deemed to be deducted from Net Total Debt or added to Consolidated Annualised EBITDA for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) (as applicable) as at the last day of the relevant Measurement Period.
|
(f)
|
If the Company makes an election for a recalculation as described in sub-paragraph (a)(iii) above, the amount of any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility that are prepaid shall be deemed to be deducted in the calculation of the Financial Ratio Test Condition for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) as at the last day of the relevant Measurement Period.
|
(g)
|
For the purpose of ascertaining compliance with Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
), the Financial Ratio Test Condition and the ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) will be tested or retested, as applicable, giving effect to the elections and adjustments referred to in paragraph (d), (e) and (f) above. If, after giving effect to such elections and adjustments, the requirements of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) are met, then the requirements under Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) shall be deemed to have been satisfied as at the relevant original date of determination.
|
(h)
|
Where a cure is exercised under this Clause 20.4 in respect of a breach of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) for any financial quarter and the Company makes an election for a recalculation as described in sub-paragraph (a)(ii) above, the amount of additional equity or the proceeds of any Subordinated Shareholder Loans that are received by one or more members of the Group shall also be added in calculating Consolidated EBITDA for any future Measurement Period that includes such financial quarter. Any adjustments pursuant to this paragraph will not be treated as a separate cure.”
|
46.
|
Permitted Disposal:
amend the definition of Permitted Disposal to add a new limb as follows:
|
47.
|
Permitted Financial Indebtedness
:
|
(a)
|
Amend Clause 21.7 (
Financial Indebtedness
) to add a new paragraph (d) as follows:
|
(b)
|
Amend the definitions of “Senior Debt” and “Total Debt” in Clause 1.1 (
Definitions
) to include an additional limb as follows:
|
48.
|
Related Fund
: amend:
|
(a)
|
Clause 1.1 (
Definitions
) to include a new definition of “Related Fund” as follows:
|
(b)
|
Clause 29.3 (
Transfers by Lenders
) at paragraph (c), to add the words “or, if applicable, a Related Fund” after the words “an Affiliate”.
|
49.
|
Share Capital
:
|
(a)
|
Amend Clause 21.16 (
Share Capital
) to add a new sub-paragraph (i) at the end as follows: “relates to the cancellation of the share capital of any member of the Group or any Obligor”.
|
(b)
|
Amend Clause 21.16 (
Share Capital
) to add the words “or a solvent liquidation under Clause 21.23 (
Internal Reorganisation
)” after the words “Clause 21.9(b)(iii) (
Acquisitions and Mergers
)”.
|
50.
|
Stamp Taxes
: delete Clause 12.7 (
Stamp Taxes
) in its entirety and replace it with the following:
|
(a)
|
any such Tax liabilities payable in connection with any Transfer Certificate or other document relating to the assignment or transfer by any Lender of any of its rights and/or obligations under any Finance Document; or
|
(b)
|
any registration duties and any Tax liability payable due to a registration, submission or filing by a Finance Party of any Finance Document where such registration, submission or filing is or was not required to maintain or preserve the rights of that Finance Party under the applicable Finance Documents.”
|
51.
|
Increased Costs
: Amend Clause 14.2 (
Exceptions
) to include the following additional limbs:
|
“(i)
|
attributable to a change (whether of basis, timing or otherwise) in the Tax liability on the overall net income of the Finance Party (or any Affiliate of it) or of the branch or office through which it lends any Advance;
|
(j)
|
attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority upon the Finance Party (or any Affiliate of it) by virtue of its having exceeded any country or sector borrowing limits or breached any directives imposed upon it;
|
(k)
|
attributable to a breach of a Finance Document by the Finance Party claiming such Increased Cost.”
|
52.
|
Representations
:
|
(a)
|
Delete Clause 18.12 (
Security Interests
) in its entirety.
|
(b)
|
Delete paragraph (b) of Clause 18.6 (
No Event of Default
).
|
(c)
|
Amend paragraph (a) of Clause 18.7 (
Authorisations
) to include the words “(other than the Licences)” after the word “licenses”.
|
(d)
|
Amend paragraph (b) of Clause 18.10 (
Litigation and Insolvency Proceedings
) to replace the words “member of the Group” with the words “Obligor or Material Subsidiary”.
|
(e)
|
Amend Clause 18.18 (
Anti-Terrorism Laws
) to delete the words “It and each of its Affiliates have taken commercially reasonable measures to ensure compliance with the Anti-Terrorism Laws” and to replace them with “It has taken commercially reasonable measures to ensure compliance with the Anti-Terrorism Laws.”
|
53.
|
Defaulting Lender Disenfranchisement
: in addition to paragraph 10 of Schedule 4, provide in the Credit Agreement as follows:
|
54.
|
Consolidated EBITDA
:
|
(a)
|
Amend paragraph (y) of the definition of Consolidated EBITDA in order that the following words are deleted:
|
(i)
|
are not included in the Company’s externally reported operating cash flow or equivalent measure; or
|
(ii)
|
are deemed to be exception of unusual items”.
|
(b)
|
Amend paragraph (g) of the definition of Consolidated EBITDA to add the words “or other equity based” after the words “any stock based”.
|
55.
|
80% Security Test:
add the following words at the end of the definition of 80% Security Test in Clause 1.1 (
Definitions
):
|
56.
|
Insolvency Event:
amend the definition of Insolvency Event in Clause 1.1 (
Definitions
) to replace the words “in relation to a Finance Party means that the Finance Party:” with the words “in relation to a Finance Party means that the Finance Party or a Holding Company of it (as applicable):”.
|
57.
|
Notes Refinancing:
amend the definitions of Senior Secured Notes Refinancing and Senior Unsecured Refinancing in Clause 1.1 (
Definitions
) to delete the word “reasonable” before the words “fees, costs and expenses”.
|
58.
|
Optional Currency:
amend the definition of “Optional Currency” in Clause 1.1 (
Definitions
) in order that the words “in relation to that Advance” are included after the words “acting on the instructions of all the Lenders”.
|
59.
|
Permitted Acquisition:
amend the definition of Permitted Acquisition in Clause 1.1 (
Definitions
):
|
(a)
|
at paragraph (d) to replace the words “less than a 50 per cent. interest” with the words “an interest of 50 per cent. or less”; and
|
(b)
|
at paragraph (j) to replace the words “10 Business Days” with the words “60 days”.
|
60.
|
Finance Document:
|
(a)
|
Amend the definition of “Finance Document” in Clause 1.1 (
Definitions
) to delete the words “a Transfer Certificate;” and include the words “any Increase Confirmation;”.
|
(b)
|
Amend the definition of “Finance Document” in Clause 1.1 (
Definitions
) to include the following wording at the end of the definition:
|
61.
|
Finance Party:
amend the definition of “Finance Party” in Clause 1.1 (
Definitions
) to include the following wording at the end of the definition:
|
62.
|
Term of Advance
: add a new clause 1.4 as follows:
|
63.
|
Exchange Rates:
add a new clause 1.5 as follows:
|
64.
|
Increase
: amend paragraph (b) of Clause 2.1 (
Increase
) to add a new limb (iii) as follows:
|
65.
|
Additional Facility
: amend paragraph (h) of Clause 2.2 (
Telenet
Additional Facility
) to:
|
(a)
|
delete sub-paragraphs (h)(ii)(A), (h)(ii)(B) and (h)(ii)(C); and
|
(b)
|
delete sub-paragraphs (h)(iii)(B), (h)(iii)(C) and (h)(iii)(D).
|
66.
|
Prepayments
: amend Clause 10.10 (
Miscellaneous Provisions
) to delete paragraph (g) and replace it with the following:
|
67.
|
Tax Indemnity
: amend paragraph (b)(ii) of Clause 12.4 (
Tax Indemnity
) to add an additional limb as follows:
|
68.
|
Representations:
amend Clause 18 (
Representations and Warranties
) by inserting the word “substantially” after the word “business” at Clause 18.2(b) (
Status
).
|
69.
|
Share Capital:
amend Clause 21.16 (
Share Capital
) to add words “that is a member of the Group” after the words “Each Obligor” and before the words “will not”.
|
70.
|
Obligor Accession:
amend Clause 21.22 (
Further Assurances
) in order that the words “10 Business Days” at paragraph (b)(i) are replaced with “60 days”.
|
71.
|
Breach of obligations EOD
: amend Clause 22.3(a) (
Breach of Other Obligations
) to add the following language at the end:
|
72.
|
Cross Default EOD
: amend Clause 22.5 (
Cross-default and Cross-acceleration
):
|
(a)
|
by deleting the words “is placed on demand;” at paragraph (b)(ii);
|
(b)
|
by deleting limb (c);
|
(c)
|
at paragraph (d)(v), by deleting the words “is not placed on demand, becomes” and replacing them with the words “does not become” and adding the word “not” before the words “otherwise accelerated during that period”; and
|
(d)
|
by adding the following additional limb to paragraph (d):
|
73.
|
Defaulting Lenders
: amend Clause 29.3 (
Transfers by Lenders
) in order that the following is included as a new Clause 29.3(h):
|
“(h)
|
Notwithstanding any other provision of this Agreement, no Lender shall be entitled to assign or transfer any of its rights, benefits or obligations under the Finance Documents to a New Lender that is a Defaulting Lender.”
|
74.
|
Amendments
: add a new paragraph (d) to Clause 28.2 (
Exceptions
) as follows:
|
75.
|
Measurement Period:
delete the definition of Measurement Period and replace it with the following:
|
76.
|
Consolidated Annualised EBITDA
: delete the definition of “Consolidated Annualised EBITDA” in Clause 1.1 (
Definitions
) and replace it with the following:
|
77.
|
Telenet Additional Facility:
|
(a)
|
Amend paragraph (h) of Clause 2.2 (
Telenet Additional Facility
) and paragraphs (a) and (b) of Clause 2.3 (
Overall Facility Limits
) to amend each reference from “Advances” and “advances” to “Utilisations”.
|
(b)
|
Amend limb (ii)(D) and (iii)(E) of paragraph (h) of Clause 2.2 (
Telenet Additional Facility
) to delete the word “reasonable” before the word “fees”.
|
(c)
|
Add an additional limb to Clause 2.2 (
Telenet Additional Facility
) as follows:
|
78.
|
Amount of Advance
: amend paragraph (b) of Clause 5.3 (
Amount of Advance or Documentary Credit
) to include the words “under that Facility” after the words “on behalf of the Lenders”.
|
79.
|
Revaluation of Documentary Credits:
|
(a)
|
Amend paragraph (a) of Clause 6.4 (
Revaluation of Documentary Credits
) to replace the words “at six monthly intervals after the date of the Documentary Credit” with the words “on the last Business Day of each financial year”.
|
(b)
|
Amend paragraph (b) of Clause 6.4 (
Revaluation of Documentary Credits
) to replace the words “three Business Days” with the words “ten Business Days”.
|
80.
|
Affiliates of Borrowers:
amend paragraph (c) of Clause 7.7 (
Affiliates of Borrowers
) to include the words “, provided that such Affiliate is not an Affiliate of any other Obligor, ” after the words “its Affiliate”.
|
81.
|
Right
of Repayment and Cancellation of a Single Lender:
amend paragraph (a)(iii) of Clause 10.8 (
Right of Repayment and Cancellation of a Single Lender
) to include the words “or Clause 15 (
Illegality and Mitigation
)” after the words “Clause 10.1 (
Mandatory Prepayment – Illegality
)” and to replace the reference to “or” before the reference to “Clause 10.1” with a comma.
|
82.
|
Selection:
|
(a)
|
Amend paragraph (d)(ii) of Clause 11.5 (
Selection – Term Facility
) to replace the word “Facility” with “Term Facility Advance” throughout such paragraph and to replace the words “Lenders whose commitments under the relevant Facility then aggregate two thirds or more of the aggregate Commitments under that Facility” with “Majority Lenders under the relevant Facility”.
|
(b)
|
Amend paragraph (c) of Clause 11.6 (
Selection – Revolving Facility
) to replace the words “under that Revolving Facility” with “under the relevant Advance under that Revolving Facility” throughout such paragraph and to replace the words “Lenders whose Commitments under that Revolving Facility then aggregate two thirds or more of the aggregate Commitments under that Revolving Facility” with “the Majority Lenders under that Revolving Facility”.
|
83.
|
Payments:
amend Clause 16.4 (
Currency
) to include the following additional limbs and to re-number limb (c) to limb (e):
|
“(c)
|
A repayment or prepayment of an Advance is payable in the currency in which the Advance is denominated.
|
(d)
|
All interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated.”
|
84.
|
Information
: amend Clause 19.4 (
Information – Miscellaneous
) to delete paragraph (c) in its entirety.
|
85.
|
Change of Business
: delete Clause 21.8 (
Change of Business
) and replace it with the following:
|
86.
|
Acquisitions:
amend paragraph (b)(iii)(B) of Clause 21.9 (
Acquisitions and Mergers
) to replace the words “for the period commencing on the date of merger and ending on the earlier of the date that falls 3 years from the date of merger and the longest dated Final Maturity Date” with “on a pro forma basis following such merger or consolidation.”
|
87.
|
Insurance:
amend Clause 21.12 (
Insurance
) to delete the words “procure that each member of the Group will” and replace them with “procure that each of its Material Subsidiaries which is a member of the Group will”.
|
88.
|
Shareholder Loans:
amend paragraph (a) of Clause 21.14 (
Shareholder Loans
) to replace the words “30 days” with “60 days”.
|
89.
|
Share Security:
|
(a)
|
delete Clause 21.17 (
Share security
) and replace it with the following:
|
(a)
|
notwithstanding paragraph (b) below, an Obligor may issue shares to any person other than a member of the Group and shall not be required to procure that such shares are charged or pledged in favour of the Beneficiaries, provided that such share issue does not result in a Change of Control;
|
(b)
|
any member of the Group may issue shares to or otherwise acquire additional rights from any other member of the Group so long as (if any of the existing shares in the relevant member of the Group are charged or pledged in favour of any Beneficiary) such shares are charged or pledged in favour of the Beneficiaries pursuant to the terms of a Security Document and there are delivered at the same time to the Security Agent the relevant share certificates and blank stock transfer forms (or equivalent documents) in respect thereof together with such other documents and evidence and legal opinions as the Security Agent may reasonably require;
|
(c)
|
the Company may issue shares to Telenet Group BVBA provided that such shares are charged or pledged in favour of the Beneficiaries pursuant to the terms of a Security Document and there are delivered at the same time to the Security Agent the relevant share certificates and blank stock transfer forms (or equivalent documents) in respect thereof together with such other documents and evidence and legal opinions as the Security Agent may reasonably require;
|
(d)
|
any member of the Group may issue shares pursuant to the exercise of Approved Stock Options;
|
(e)
|
a member of the Group may issue shares as part of an Acquisition or merger or consolidation permitted by Clause 21.9 (
Acquisitions and Mergers
), provided that the issue of such shares does not cause a Change of Control;
|
(f)
|
a member of the Group (other than an Obligor) may issue shares to all the holders of the share capital of such member of the Group
pro rata
to their interests in such share capital provided that, if any existing shares in that member of the Group are charged or pledged in favour of any Beneficiary under any Security Document, upon issue the shares that are issued to any other member of the Group are charged or pledged in favour of the Beneficiaries as provided in paragraph (b) above; and
|
(g)
|
any member of the Group (other than the Company) may issue shares to any person pursuant to any agreement or other legally binding arrangement existing, and disclosed to the Facility Agent in writing, on or before the Signing Date, provided that such share issue does not result in a Change of Control.”
|
(b)
|
Add the following additional definition to Clause 1.1 (
Definitions
):
|
90.
|
Group Redesignation:
delete Clause 21.25 (
Group Redesignation
) and replace it with the following:
|
91.
|
Clean Up Period:
|
(a)
|
Amend the definition of Clean Up Period in Clause 22.3 (
Breach of Other Obligations
) to replace the words “120 days” with the words “180 days”.
|
(b)
|
Delete the words “(other than Clause 22.3(a) (
Breach of Other Obligations
) to the extent it refers to Clause 20 (
Financial Covenant
))” in paragraph (c) of Clause 22.3 (
Breach of Other Obligations
).
|
92.
|
Intercreditor Agreement:
amend paragraph (a) of Clause 22.12 (
Intercreditor Agreement
) to include the word “material” before the word “obligations”.
|
93.
|
Acceleration:
amend Clause 22.17 (
Acceleration
) to replace the words “may, and must if so instructed by the Majority Lenders” with the words “the Facility Agent shall, if the Majority Lenders so direct”.
|
94.
|
Indemnity:
|
(a)
|
Amend paragraph (a) of Clause 26.1 (
Currency Indemnity
) to include the words “, within 10 Business Days of demand” after the words “Obligor must”.
|
(b)
|
Amend paragraph (a)(i) of Clause 26.2 (
Other Indemnities
) to replace the word “Default” with the words “Event of Default”.
|
(c)
|
Amend paragraph (a) of Clause 26.3 (
Break Costs
) to include the words “, within ten Business Days of demand by a Lender, ” after the words “Each Borrower must”.
|
(d)
|
Amend paragraph (b) of Clause 26.3 (
Break Costs
) to include the words “, as soon as reasonably practicable after a demand by the Facility Agent, ” after the words “Each Lender must”.
|
95.
|
Amendments and waivers:
|
(a)
|
Amend Clause 28.2 (
Exceptions
) to add an additional limb (d) as follows:
|
“(d)
|
Notwithstanding any other provision of this Clause 28 (
Amendments and Waivers
), the Facility Agent may at any time without the consent or sanction 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:
|
(i)
|
would not be materially 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;
|
(ii)
|
relates to the increase in the principal amount of a Commitment of a Lender in relation to any Facility and such increased Commitment has been requested by the Company to fund any original issue discount required to be paid to that Lender in relation to that Facility under any Finance Document;
|
(iv)
|
which relates to the implementation of any alternative basis for the calculation of interest that is binding on all Parties in accordance with paragraph (c) of Clause 13.4 (
Cost of Funds
).
|
(b)
|
Amend Clause 28.2 (
Exceptions
) to include the words “Subject to Clause 28.6 (
Structural Adjustments
) below,” at the beginning of paragraph (a).
|
(c)
|
Amend paragraph (a) of Clause 28.3 (
Non Consenting Lenders
) to delete limb (iii) in its entirety.
|
(d)
|
Add an additional provision to Clause 28.2 (
Exceptions
) as follows:
|
96.
|
Changes to the Parties:
|
(a)
|
Amend Clause 29.2 (
Assignment or Transfers by Obligors
) to include the words “except to the extent permitted by this Agreement” at the end of the paragraph.
|
(b)
|
Amend paragraph (a) of Clause 29.9 (
Additional Borrowers
) to delete the words “(following consultation with the Facility Agent)”.
|
(c)
|
Amend paragraph (b) of Clause 29.9 (
Additional Borrowers
) to include the words “under the relevant Facility” after the words “all the Lenders”.
|
(d)
|
Amend paragraph (b)(ii) of Clause 29.11 (
Resignation of an Obligor (other than the Company
) to replace the words “a Default” with the words “an Event of Default”.
|
97.
|
Governing law:
|
(a)
|
Delete Clause 38 (
Governing law
) and replace it with the following:
|
(b)
|
Amend the governing law provisions of the schedules to the Credit Agreement to refer to “non-contractual obligations” in conformity with paragraph (a) above.
|
98.
|
Order of Application:
amend Clause 10.4 (
Order of application
) by deleting sub-paragraph (e).
|
99.
|
Affiliate
: amend the definition of Affiliate in Clause 1.1 (
Definitions
) such that it reads as follows:
|
(a)
|
an Affiliate of the Company that issues any notes, bonds or other securities for the purpose of on-lending the proceeds of such issuances under a Facility and to a Borrower under this Agreement and which acts in accordance with the terms of any indentures or other documents governing such issuances (a “
Designated Notes Issuer
”) shall not be an Affiliate of the Company or any of its Affiliates; and
|
100.
|
Change of L/C Bank:
add the words “in relation to the Facility in respect of which such Documentary Credits are issued” after the words “Majority Lenders” in paragraph (c) of Clause 6.11 (
Appointment and Change of L/C Bank)
.
|
101.
|
Restricted Person:
amend the definition of Restricted Person in Clause 1.1 (
Definitions
) such that it reads as follows:
|
102.
|
Permitted Affiliate Group Designation:
amend limb (iv)(c) of Clause 29.8 (
Permitted Affiliate Group Designation
) to include the words “if available,” at the start of the limb.
|
103.
|
Permitted Payment
: add a new limb to the definition of Permitted Payment in Clause 1.1 (
Definitions
) as follows:
|
To:
|
The Bank of Nova Scotia as Facility Agent and KBC Bank NV as Security Agent
|
From:
|
The Telenet Additional Facility AJ-B Lender
|
1.
|
In this Agreement:
|
2.
|
Unless otherwise defined in this Agreement, terms defined in the Credit Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the Credit Agreement. The principles of construction set out in Clause 1.2 (
Construction
) of the Credit Agreement apply to this Agreement as though they were set out in full in this Agreement.
|
3.
|
We refer to Clause 2.2 (
Telenet Additional Facility
) of the Credit Agreement. This is a Finance Document.
|
4.
|
This Agreement will take effect on the date on which the Facility Agent notifies the Borrower and the Telenet Additional Facility AJ-B Lender that it has received the documents and evidence set out in Schedule 2 to this Agreement, in each case in form and substance satisfactory to it (acting reasonably) or, as the case may be, the requirement to provide any of such documents or evidence has been waived by the Facility Agent (acting on the instructions of the Telenet Additional Facility AJ-B Lender) (the “
Effective Date
”). The Facility Agent must give this notification to the Borrower and the Telenet Additional Facility AJ-B Lender promptly upon being so satisfied.
|
5.
|
The Telenet Additional Facility AJ-B Lender agrees:
|
(a)
|
to become party to and to be bound by the terms of the Credit Agreement as a Lender in accordance with Clause 2.2 (
Telenet Additional Facility
) of the Credit Agreement; and
|
(b)
|
to become party to the Intercreditor Agreement as a Senior Lender for the purposes of the Intercreditor Agreement and confirm that, as from the date of this Agreement, it intends to be party to the Intercreditor Agreement as a Senior Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
6.
|
The Telenet Additional Facility Commitment in relation to the Telenet Additional Facility AJ-B Lender (for the purpose of the definition of Telenet Additional Facility Commitment in Clause 1.1 (
Definitions
) of the Credit Agreement) is its Term Loan AJ-B Facility Commitment.
|
7.
|
The Facility Agent will, for the purposes of any determination to be made under the Credit Agreement or this Agreement (other than with respect to the Proposed Amendments in respect of which consent has been given in accordance with Clauses 25 and 26 hereof), apply the votes of the Telenet Additional Facility AJ-B Lender in accordance with a written direction to be
|
8.
|
The Term Loan AJ-B Facility may be drawn by one Advance (subject to the provisions of Clause 9 below) on the Effective Date and such date will constitute the Availability Period for the Term Loan AJ-B Facility. No more than one Request may be made in respect of the Term Loan AJ-B Facility under the Credit Agreement, and such Request may only be in a principal amount of the Telenet Additional Facility Commitment in relation to the Term Loan AJ-B Facility as set out in Clause 6 above.
|
(a)
|
Provided that any upsizing of the Term Loan AJ-B Facility permitted under this Clause 9 will not breach any term of the Credit Agreement, the Term Loan AJ-B Facility may be upsized by any amount, by the signing of one or more further Telenet Additional Facility AJ-B Accession Agreements, that specify (along with the other terms specified therein) [
Insert Telenet BVBA or the name of any other entity incorporated under the laws of Belgium that has acceded to the Credit Agreement as a Borrower
] as sole Borrower and which specify Telenet Additional Facility Commitments denominated in U.S. Dollars, to be drawn in U.S. Dollars, with the same Final Maturity Date and Margin as specified in this Agreement.
|
(b)
|
For the purposes of this Clause 9 (unless otherwise specified), references to the Term Loan AJ-B Facility shall include Advances made under any such further Telenet Additional Facility AJ-B Accession Agreement.
|
(c)
|
Where any Term Loan AJ-B Facility Loan has not already been consolidated with any other Term Loan AJ-B Facility Loan, on the last day of any Term for such Term Loan AJ-B Facility Loan, that Term Loan AJ-B Facility Loan shall be consolidated with any other Term Loan AJ-B Facility Loan which has a Term ending on the same day as that Term Loan AJ-B Facility Loan and all such Term Loan AJ-B Facility Loans will then be treated as one Advance.
|
10.
|
The Final Maturity Date in respect of the Term Loan AJ-B Facility is 1 March 2028. Any outstanding Advance under the Term Loan AJ-B Facility shall be repaid in full on the Final Maturity Date.
|
11.
|
The interest rate in relation to the Term Loan AJ-B Facility will be a fixed rate of 5.500 per cent. per annum. Such interest rate will be calculated in accordance with Clause 11.1 (
Calculation of Interest
) of the Credit Agreement as being the sum of LIBOR and the applicable Margin, where in order to achieve the fixed rate referred to above, the applicable Margin will be:
|
(a)
|
5.500 per cent. per annum, calculated on the basis of a 360 day year comprised of twelve 30 day months;
|
(b)
|
LIBOR.
|
12.
|
The first Term to apply to the Term Loan AJ-B Facility Loan will be a period equal to the period running from the first day following the end of the most recently completed Term with respect to which interest was paid under the Term Loan AJ Facility Loan up to and excluding [
Insert date that is the last day of the Term for the Term Loan AJ Facility Loan
] in order that the first Term under the Term Loan AJ-B Facility Loan is aligned with the existing Term under the Term Loan AJ Facility Loan. The Borrower agrees that each subsequent Term under the Term Loan AJ-B Facility will be 6 months.
|
13.
|
Upon the occurrence of a mandatory prepayment of the Term Loan AJ-B Facility following a Change of Control, as defined under Clause 10.2 (
Mandatory Prepayment – Change of Control
) of the Credit Agreement, the Borrower under the Term Loan AJ-B Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AJ-B Lender) an amount equal to 1 per cent. of the principal amount of the Term Loan AJ-B Facility, plus accrued and unpaid interest to the due date of mandatory prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Telenet Additional Facility AJ-B Lender) under the Term Loan AJ-B Facility on the actual date of such mandatory prepayment.
|
14.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of any of the Term Loan AJ-B Facility by the Borrower under Clause 10.5 (
Voluntary prepayment
) of the Credit Agreement (other than a voluntary prepayment complying with Clauses 17 or 18 below) in an amount not to exceed 10% of the original principal amount of the Term Loan AJ-B Facility during each twelve-month period commencing on the date of this Agreement, the Borrower under the Term Loan AJ-B Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AJ-B Lender) an amount equal to 3.0% of the principal amount of the Term Loan AJ-B Facility being prepaid, plus accrued and unpaid interest then due on the amount of the Term Loan AJ-B Facility Loan prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower under the Term Loan AJ-B Facility to the Facility Agent (for the account of the Telenet Additional Facility AJ-B Lender) on the actual date of such prepayment. Prior to 1 December 2022, to the extent that during any twelve-month period commencing on the date of this Agreement, the principal amount of the Term Loan AJ-B Facility prepaid in any one or more voluntary prepayments is greater than an amount equal to 10% of the original principal amount of the Term Loan AJ-B Facility (any such amount, the “
Excess Early Redemption Proceeds
”), the Borrower will apply the Excess Early Redemption Proceeds to a voluntary prepayment of the Term Loan AJ-B Facility as described in Clause 15 below.
|
15.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of any or all of the Term Loan AJ-B Facility by the Borrower under the Term Loan AJ-B Facility under Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement with any Excess Early Redemption Proceeds (other than a voluntary prepayment complying with Clauses 17 or 18 below), the Borrower under the Term Loan AJ-B Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AJ-B Lender) an amount equal to the Additional Amount (as
|
(i)
|
the present value at such prepayment date of (i) the amount that would be payable in accordance with Clause 16 below in respect of the principal amount of the Term Loan AJ-B Facility being prepaid if such amount were prepaid on 1 December 2022 pursuant to Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement, plus (ii) the principal amount of the Term Loan AJ-B Facility being prepaid plus (iii) all required interest payments due on the principal amount of the Term Loan AJ-B Facility being prepaid through 1 December 2022 (excluding accrued but unpaid interest to the prepayment date and assuming such interest payments are calculated at the rate of interest on the Term Loan AJ-B Facility in effect on such prepayment date), computed using a discount rate equal to the Treasury Rate plus 50 basis points; over
|
(ii)
|
the principal amount of the Term Loan AJ-B Facility being prepaid.
|
16.
|
On or after 1 December 2022 upon the occurrence of a voluntary prepayment of any or all of the Term Loan AJ-B Facility by the Borrower under the Term Loan AJ-B Facility under Clause 10.5 (
Voluntary prepayment
) of the Credit Agreement (other than a voluntary prepayment complying with Clause 17 or 18 below), the Borrower under the Term Loan AJ-B Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AJ-B Lender) an amount equal to the relevant percentages of the principal amount of the Term Loan AJ-B Facility being prepaid as set forth in the table below on, plus accrued and unpaid interest then due on the amount of the Term Loan AJ-B Facility prepaid to, the due date of prepayment, if prepaid during the twelve-month period beginning on 1 December of the years indicated below:
|
Year
|
Prepayment Price expressed as a percentage of the principal amount of the Term Loan AJ-B Facility
|
2022
|
2.750%
|
2023
|
1.375%
|
2024
|
0.688%
|
2025 and thereafter
|
0.000%
|
17.
|
Notwithstanding Clauses 14, 15 and 16:
|
(a)
|
if the Telenet Additional Facility AJ-B Lender purchases any Notes in connection with any tender offer or other offer to purchase for the Notes (a “
Tender Offer
”), the Borrower will prepay an aggregate principal amount of the Term Loan AJ-B Facility, pro rata based on the aggregate principal amount of Notes tendered in such Tender Offer and at a prepayment price of par plus any premium paid or less any discount received by the Telenet Additional Facility AJ-B Lender in connection with the purchase of the Notes in such Tender Offer, plus any accrued and unpaid interest to the due date of such prepayment; and
|
(b)
|
if following any Tender Offer, the Telenet Additional Facility AJ-B Lender is entitled to, and elects to, redeem any remaining Notes at a price equal to the price paid to each other holder in such Tender Offer, then the Borrower will prepay the remaining principal amount of the Term Loan AJ-B Facility at a prepayment price of par plus any premium paid or less any discount received by the Telenet Additional Facility AJ-B Lender in connection with the purchase of the Notes in such Tender Offer, plus any accrued and unpaid interest to the date that any interest accrues under the Notes in connection with such redemption.
|
18.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of the Term Loan AJ-B Facility by the Borrower pursuant to Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement with the Net Cash Proceeds of one of more Equity Offerings (the “
Equity Offering Early Redemption Proceeds
”) in an amount of up to 40% of the Term Loan AJ-B Facility Loan, the Borrower shall upon not less than 10 days nor more than 60 days’ notice make a payment to the Facility Agent (for the account of the Telenet Additional Facility AJ-B Lender) in an amount (the “
Equity Claw Prepayment Premium
”) equal to 5.500 per cent. of the principal amount of the Term Loan AJ-B Facility prepaid, together with any amounts due to the Telenet Additional Facility AJ-B Lender in respect of a Tax Deduction plus accrued interest then due on the amount of the Term Loan AJ-B Facility prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Telenet Additional Facility AJ-B Lender) under the Term Loan AJ-B Facility on the actual date of such prepayment provided that:
|
(a)
|
at least 50% of the principal amount of the Term Loan AJ-B Facility remains outstanding immediately after any such prepayment; and
|
(b)
|
such prepayment is made not more than 180 days after the consummation of any Equity Offering.
|
(b)
|
is convertible or exchangeable for Financial Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of Telenet Group BVBA, the Borrower or a Subsidiary of Telenet Group BVBA); or
|
(c)
|
is redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of the date (a) of the stated maturity of the Term Loan AJ-B Facility or (b) on which there are no amounts under the Term Loan AJ-B Facility outstanding,
provided
that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock;
provided, further
that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require Telenet Group BVBA to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (each defined in a substantially identical manner to the corresponding definitions in the Credit Agreement) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that Telenet Group BVBA may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by Telenet Group BVBA with any provisions of the Credit Agreement.
|
19.
|
On the Effective Date, the Telenet Additional Facility AJ-B Lender will make to the Borrower a Term Loan AJ-B Facility Loan in an amount equal to the Term Loan AJ-B Facility Commitment by [●].
2
|
20.
|
The Borrower agrees that it will not request or require the transfer of all of the rights and obligations of the Telenet Additional Facility AJ-B Lender (or cancel or reduce any of such Lender’s Commitments or repay or prepay the Term Loan AJ-B Facility Loan) pursuant to Clause 10.8 (
Right of Repayment and Cancellation of a Single Lender
), Clause 10.9 (
Right of Cancellation in Relation to a Defaulting Lender
) or Clause 28.3 (
Non-Consenting Lenders
) of the Credit Agreement.
|
21.
|
On the first Utilisation Date in respect of the Term Loan AJ-B Facility, the Borrower confirms, on behalf of itself and the Company confirms on behalf of itself and each other Obligor, that the representations and warranties set out in Clause 18 (
Representations and Warranties
) of the Credit Agreement (except for Clauses 18.5 (
Non –conflict
), 18.6 (
No Event of Default
), 18.7 (
Authorisations
), 18.9 (
No Material Adverse Change
), 18.10 (
Litigation and Insolvency Proceedings
), 18.11 (
Tax Liabilities
), 18.12 (
Security Interests
), 18.13 (
Intellectual Property Rights
), 18.14 (
Environmental Laws
), 18.15 (
Ownership of Assets
), 18.16 (
ERISA
), 18.17 (
United States Regulations
) and 18.18 (
Anti-Terrorism Laws
)) are true and correct in all material respects as if made at the first Utilisation Date in respect of the Term Loan AJ-B Facility with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement.
|
22.
|
Each of the Guarantors confirms that its obligations under Clause 17 (
Guarantee and Indemnity
) of the Credit Agreement, and each of the Existing Security Providers confirms that the Security Interests created pursuant to the Security Documents and its obligations under the Finance Documents, shall continue unaffected and that such obligations extend to the Total Commitments as increased by the addition of the Term Loan AJ-B Facility and that such obligations shall be owed to each Finance Party including the Telenet Additional Facility AJ-B Lender.
|
23.
|
The Telenet Additional Facility AJ-B Lender confirms to each Finance Party (unless such Finance Party is an Obligor) that:
|
(a)
|
it has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Credit Agreement and has not relied on any information provided to it by a Finance Party in connection with any Finance Document; and
|
(a)
|
transferring all of its rights, title and obligations under the Term Loan AJ Facility to the Borrower pursuant to a transfer certificate executed by each of the Telenet Additional Facility AJ Lender, the Borrower and the Facility Agent in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement;
|
(b)
|
cash settling with (or netting against) proceeds received (or payable) in respect of prepayment and cancellation of the Term Loan AJ Facility Loan; and/or
|
(c)
|
any other means that may be permitted under the Finance Documents and applicable law provided that the Telenet Additional Facility AJ Lender shall cease to have any rights or obligations under the Telenet Additional Facility AJ Accession Agreement following the entry into the Telenet Additional Facility AJ-B Accession Agreement.
|
(b)
|
it will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Credit Agreement or any Telenet Additional Facility Commitment is in force.
|
24.
|
In the event that the Term Loan AJ-B Facility Loan is made by way of cash settlement, the proceeds shall be used by the Borrower for general corporate purposes.
|
25.
|
Subject to Clause 26 below and the provisions of the Indenture, for the purposes of any amendment or waiver, consent or other modification (including, with respect to any existing Default or Event of Default) that may be sought by the Company under the Credit Agreement or any other Finance Document on or after the date of this Agreement, the Telenet Additional Facility AJ-B Lender hereby consents to:
|
(a)
|
any and all of the items set out in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement; and
|
(b)
|
any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made either to implement the changes envisaged in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications)
to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement or to conform any Finance Document to Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement; and/or
|
(c)
|
any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made to conform any Finance Document to any Liberty Global Reference Agreement (provided that any amendment, waiver, consent or modification to conform the Credit Agreement or any other Finance Document to any Liberty Global Reference Agreement referred to at paragraphs (vi) to (xi), (xiii) and (xiv) and in respect of the schedules in relation to covenants, events of default or definitions in the Liberty Global Reference Agreements referred to at paragraphs (ii), (iii) and (v) of that definition, shall be limited to those that are mechanical in nature unless specifically referenced in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement and, in each case, any consequential amendments, waivers, consents or modifications),
|
26.
|
Following receipt of an amendment request from the Company, and/or the Facility Agent, in connection with all or any of the proposed amendments set out under Clause 25 above (the “
Requested Amendments
”
)
the Telenet Additional Facility AJ-B Lender shall confirm whether,
|
27.
|
The Telenet Additional Facility AJ-B Lender hereby waives receipt of any fee in connection with the consent in Clause 26 above, notwithstanding that other consenting Lenders under the Credit Agreement may be paid a fee in consideration of such Lenders’ consent to any or all of the foregoing amendments, waivers or other modifications.
|
28.
|
The Telenet Additional Facility AJ-B Lender and the Facility Agent agree to waive the notice period in respect of drawdown requests under Clause 5.1 (
Delivery of Requests
) of the Credit Agreement in respect of this Term Loan AJ-B Facility.
|
29.
|
The Borrower and the Company agree that, notwithstanding the provisions of Clause 12 (
Taxes
) of the Credit Agreement in connection with any payment required to be made by an Obligor to the Telenet Additional Facility AJ-B Lender:
|
30.
|
The parties to this Agreement acknowledge and agree that (a) in the event that the Term Loan AJ-B Facility Loan is made by way of cash settlement pursuant to Clause 24, it shall be made by the Telenet Additional Facility AJ-B Lender directly to the Borrower to an account notified by the Borrower to the Telenet Additional Facility AJ-B Lender, rather than through the Facility Agent and (b) in respect of any other payments of principal, interest or other amounts due under Term Loan AJ-B Facility, (i) the Borrower shall make payments payable by it to the Telenet Additional Facility AJ-B Lender directly to the Telenet Additional Facility AJ-B Lender (or to such account as the Telenet Additional Facility AJ-B Lender may specify), and (ii) the Telenet Additional Facility AJ-B Lender shall make payments payable by it to the Borrower directly to the Borrower (or to such account as the Borrower may specify). The Telenet Additional Facility AJ-B Lender agrees that it shall promptly notify the Facility Agent if the Borrower fails to make any payment under subclause (b)(i) of this Clause 30 when due, and the Borrower agrees that it shall promptly notify the Facility Agent if the Telenet Additional Facility AJ-B Lender fails to make any payment under subclause (b)(ii) of this Clause 30 when due.
|
31.
|
The Telenet Additional Facility AJ-B Lender agrees that without prejudice to Clause 29.4 (
Procedure for Transfer by Way of Novation
) of the Credit Agreement, each New Lender (as defined in the Transfer Certificate referred to below) shall become, by the execution by the Facility Agent of a Transfer Certificate substantially in the form of Schedule 3 (
Transfer Certificate
(
Cash
)) to this Agreement, bound by the terms of this Agreement as if it were an original party hereto as a Telenet Additional Facility AJ-B Lender and shall acquire the same rights, grant the same consents and assume the same obligations towards the other parties to this Agreement as would have been acquired, granted and assumed had the New Lender been an original party to this Agreement as a Telenet Additional Facility AJ-B Lender.
|
32.
|
The Facility Office and address for notices of the Telenet Additional Facility AJ-B Lender for the purposes of Clause 36.2 (
Contact Details
) of the Credit Agreement will be that notified by the Telenet Additional Facility AJ-B Lender to the Facility Agent.
|
33.
|
For the purposes of the Term Loan AK-B Facility and any Term Loan AK-B Facility Loan, and notwithstanding any provision of a Finance Document to the contrary:
|
(a)
|
The following defined terms shall have the following meanings in the Finance Documents:
|
(i)
|
a Lender which qualifies as a professional investor within the meaning of Article 105, 3° of the Royal Decree implementing the Belgian Income Tax Code;
|
(ii)
|
a Lender which is entitled to a payment of interest under a Finance Document without a Tax Deduction, pursuant to a double taxation agreement in force with Belgium (subject to the completion of any necessary procedural formalities);
|
(iii)
|
a Lender which is a credit institution established in a country of the European Economic Area or in a country with which the Kingdom of Belgium has concluded a Double Tax Treaty; or
|
(iv)
|
a Lender which qualifies as a non-resident saver within the meaning of Article 105, 50 of the Royal Decree implementing the Belgian Income Tax Code 1992 if, upon payment of such interest, the Borrower qualifies as a "listed holding company" or "intragroup bank" within the meaning of Article 105, 1°, b) or c) of the Royal Decree implementing the Belgian Income Tax Code 1992.
|
(b)
|
Where they relate to a Luxembourg company, references in the Finance Documents to:
|
(i)
|
a
winding-up, administration
or
dissolution
includes, without limitation, bankruptcy (
faillite
), insolvency, voluntary or judicial liquidation (
liquidation volontaire ou judiciaire
), composition with creditors (
concordat préventif de faillite
), reprieve from payment (
sursis de paiement
), controlled management (
gestion contrôlée
), fraudulent conveyance (
actio pauliana
), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally;
|
(ii)
|
a
receiver
,
administrative receiver
,
administrator
or the like includes, without limitation, a
juge délégué, commissaire, juge-commissaire, liquidateur or curateur
;
|
(iii)
|
a
security interest
includes any
hypothèque, nantissement, gage, privilege, sûreté réelle, droit de rétention
and any type of real security or agreement or arrangement having a similar effect and any transfer of title by way of security; and
|
(iv)
|
a person being
unable to pay its debts
includes that person being in a state of cessation of payments (
cessation de paiements
).
|
(c)
|
Any guarantee given by any Luxembourg Guarantor does not constitute a suretyship (
cautionnement
) in the sense of articles 2011 and subsequent of the Luxembourg civil code.
|
(d)
|
The maximum liability of any Luxembourg Guarantor under the Finance Documents shall be limited so that the maximum amount payable by the relevant Luxembourg Guarantor for the obligations of any Obligor, which is not a direct or indirect Subsidiary of such Luxembourg Guarantor, hereunder shall at no time exceed the Maximum Amount.
|
(i)
|
all moneys received by that Luxembourg Guarantor or direct or indirect Subsidiaries of that Luxembourg Guarantor (which are direct or indirect Subsidiaries of that Luxembourg Guarantor on the date hereof or which will be direct or indirect Subsidiaries of that Luxembourg Guarantor hereafter) as borrower under or pursuant to the Finance Documents; and
|
(ii)
|
the aggregate amount of the outstanding intercompany loans made to the Luxembourg Guarantor or direct or indirect Subsidiaries of that Luxembourg Guarantor (which are direct or indirect Subsidiaries of that Luxembourg Guarantor on the date hereof or which will be direct or indirect Subsidiaries of that Luxembourg Guarantor hereafter) by other members of the Group which have been funded with moneys received by the Borrowers under the Finance Documents (the
Loan Amount
); and
|
(iii)
|
an amount equal to 95% of the greater of:
|
(A)
|
the market value of the assets of the Luxembourg Guarantor at the time the guarantee is called less the Liabilities, other than the Loan Amount, at the time the guarantee is called; and
|
(B)
|
the market value of the assets of the Luxembourg Guarantor at the date of this Agreement less the Liabilities, other than the Loan Amount, at the time the guarantee is called.
|
(e)
|
Telenet International Finance S.à r.l. hereby expressly accepts and confirms, for the purposes of Articles 1278 and 1281 of the Luxembourg Civil Code, that notwithstanding any assignment, transfer and/or novation permitted under, and made in accordance with the provisions of this Agreement or the Finance Documents, the guarantee given by it guarantees all obligations of each Luxembourg Obligor (including without limitation, all obligations with respect to all rights and/or obligations so assigned, transferred or novated) and any security created under this Agreement or the Finance Documents shall be preserved for the benefit of any New Lender and each Luxembourg Obligor hereby accepts and confirms the aforementioned.
|
(f)
|
Qualifying Lender
means, in the case of a Luxembourg Borrower, a Lender which is entitled to receive interest payments free of withholding tax levied pursuant to the Luxembourg law of 23 December 2005, as amended, introducing a withholding tax of 20% on payments of interest or similar income made or ascribed by a paying agent
|
34.
|
Each Existing Security Provider (other than the Company) irrevocably appoints the Company to act as its agent:
|
35.
|
If a term of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect:
|
(a)
|
the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or
|
(b)
|
the legality, validity or enforceability in other jurisdictions of that or any other term of this Agreement.
|
36.
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
37.
|
This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement. In relation to each counterpart, upon confirmation by or on behalf of the signatory that the signatory authorises the attachment of such counterpart signature page to the final text of this Agreement, such counterpart signature page shall take effect together with such final text as a complete authoritative counterpart.
|
38.
|
Clause 39.1 (
Jurisdiction
) of the Credit Agreement is incorporated into this Agreement as if set out in full and as if references in that clause to “the Finance Documents” is to this Agreement.
|
39.
|
This Agreement is a “Creditor Accession Undertaking” as defined in the Intercreditor Agreement.
|
40.
|
The Borrower under the Term Loan AJ-B Facility hereby agrees that the Telenet Additional Facility AJ-B Lender may disclose confidential information supplied to it by or on behalf of any Obligor in connection with the Finance Documents to the extent such disclosure is required by the terms of the Notes.
|
41.
|
For the purposes of any assignment, transfer or novation of rights and/or obligations (in whole or in part) by the Telenet Additional Facility AJ-B Lender under Clause 29.3 (
Transfers by
|
42.
|
The parties acknowledge that this Agreement is a Finance Document.
|
Telenet Additional Facility AJ-B Lender
|
Term Loan AJ-B Facility Commitment
($)
|
[
Insert name of Belgian SPV
]
|
1,000,000,000
|
|
|
Total
|
1,000,000,000
|
1.
|
Obligors
|
(a)
|
A copy of the articles of association or equivalent constitutional documents of each Obligor and each Existing Security Provider.
|
(b)
|
A copy of a resolution of the board of directors or equivalent of each Obligor and each Existing Security Provider approving the terms of, and the transactions contemplated by, this Agreement and any other Finance Documents to which it is, or will become, a party.
|
(c)
|
A specimen of the signature of each person authorised on behalf of each Obligor and each Existing Security Provider to execute or witness the execution of this Agreement and any other Finance Document or to sign or send any document or notice in connection with this Agreement and any other Finance Document.
|
(d)
|
An up-to-date extract from the Luxembourg Trade and Companies Register in respect of each Obligor and each Existing Security Provider incorporated in Luxembourg or, to the extent such Obligor or Existing Security Provider is not registered with the Luxembourg Trade and Companies Register, a certificate from a notary residing in Luxembourg.
|
(e)
|
An up-to-date negative certificate (
certificat de non-inscription d’une decision judiciaire
) issued by the Luxembourg Trade and Companies register in respect of each Obligor and each Existing Security Provider incorporated in Luxembourg or, to the extent such Obligor or Existing Security Provider is not registered with the Luxembourg Trade and Companies Register, a certificate on solvency of an authorised signatory of the relevant Obligor or Existing Security Provider (as applicable).
|
(f)
|
A copy of the minutes of the shareholders' meeting of each Belgian Obligor and each Belgian Existing Security Provider in the form of a limited liability company (
naamloze vennootschap
) (except for Telenet Group Holding NV):
|
(i)
|
approving for the purposes of article 556 of the Belgian Companies Act, the terms of and transactions contemplated by this Agreement; and
|
(ii)
|
authorising named persons to fulfil the formalities with the Registry of the Commercial Court of the registered office of such Obligor or Existing Security Provider following the decision taken in accordance with the above.
|
(g)
|
A certificate of an authorised signatory of the Company:
|
(i)
|
confirming that utilising the Total Commitments (including the Term Loan AJ-B Facility Commitment) in full would not breach any limit binding on any Obligor; and
|
(ii)
|
certifying that each copy document specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
(h)
|
A copy of the most recent annual accounts of the Borrower or, in the absence thereof, a copy of the opening balance sheet of the Borrower.
|
(i)
|
Evidence required by the Finance Parties for the purpose of any applicable money laundering regulations.
|
2.
|
Legal opinions
|
(a)
|
A legal opinion of Allen & Overy LLP, English legal advisers to the Facility Agent, addressed to the Finance Parties and to the security trustee under the Indenture (in substantially the same form as the opinion delivered in respect of the Telenet Additional Facility AJ Accession Agreement).
|
(b)
|
A legal opinion of Allen & Overy (Belgium) LLP, Belgian legal advisers to the Facility Agent, addressed to the Finance Parties and to the security trustee under the Indenture (in substantially the same form as the opinion delivered in respect of the Telenet Additional Facility AJ Accession Agreement).
|
(c)
|
A legal opinion of Allen & Overy,
société en commandite simple,
Luxembourg legal advisers to the Facility Agent, addressed to the Finance Parties and to the security trustee under the Indenture (in substantially the same form as the opinion delivered in respect of the Telenet Additional Facility AJ Accession Agreement).
|
3.
|
Other Documents
|
(a)
|
Evidence that the agent of the Borrower under the Finance Documents for service of process in England has accepted its appointment.
|
From:
|
[THE EXISTING LENDER] and [THE NEW LENDER]
|
(a)
|
Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement;
|
(b)
|
Clause 22.3 (
Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders
) of the Intercreditor Agreement; and
|
(c)
|
the Telenet Additional Facility Accession Agreement dated 13 December 2017, pursuant to which a $1,000,000,000 term loan facility is made available to the Borrower as a Telenet Additional Facility (
Term Loan AJ-B Facility
) under the Credit Agreement (the
Telenet Additional Facility AJ-B Accession Agreement
).
|
1.
|
We, [ ] (the
Existing Lender
) agree to novate and we, [ ] (the
New Lender
) agree to accept novation of all the Existing Lender's rights and obligations referred to in the Schedule on and from the Effective Date in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement and Clause 22.3 (
Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders
) of the Intercreditor Agreement.
|
2.
|
The New Lender confirms that it is bound by the terms of the Telenet Additional Facility AJ-B Accession Agreement from the Effective Date as if it were an original party thereto as a Telenet Additional Facility AJ-B Lender and shall acquire the same rights, grant the same consents and assume the same obligations towards the other parties to the Telenet Additional Facility AJ-B Accession Agreement as would have been acquired, granted and assumed had the New Lender been an original party to the Telenet Additional Facility AJ-B Accession Agreement as a Telenet Additional Facility AJ-B Lender.
|
3.
|
For the purposes of Articles 1278 and 1281 of the Luxembourg Civil Code and Article 1278 of the Belgian Civil Code, each of the Existing Lender, the Facility Agent and the New Lender agree and each of the Existing Security Providers and Guarantors acknowledge and accept that the Security Documents will be preserved for the benefit of the New Lender in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement.
|
4.
|
The New Lender represents on the date of this Transfer Certificate that:
|
(a)
|
it is a Qualifying Lender; and
|
(b)
|
it is not a Lender that has met the conditions described in any of paragraphs (a) to (c) of Clause 12.6 (
U.S. Taxes
) of the Credit Agreement.
|
5.
|
This Transfer Certificate shall take effect on the date of this Transfer Certificate.
|
6.
|
For the purposes of this Transfer Certificate, “
Effective Date
” means the date specified under the Facility Agent's name in the relevant signature page to this Transfer Certificate.
|
7.
|
Each party to this document agrees, the Facility Agent agrees on behalf of each Finance Party, and Telenet BVBA agrees on behalf of each Obligor, that this document is a Transfer Certificate notwithstanding that its form is different to that required by the Credit Agreement.
|
8.
|
The New Lender, agrees to become party to the Intercreditor Agreement as a Senior Lender for the purposes of the Intercreditor Agreement and confirm that, as from the date of this Transfer Certificate, it intends to be party to the Intercreditor Agreement as a Senior Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
9.
|
This Transfer Certificate is a Finance Document.
|
10.
|
This Transfer Certificate may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Transfer Certificate by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Transfer Certificate.
|
11.
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
Facility Office
|
[ ]
|
1.
|
Majority Lenders:
amend Clause 1.1 (D
efinitions
) of the Credit Agreement to reduce the fractions specified in the definitions of Majority Lenders, from two thirds or more (for any or all purposes under the Credit Agreement or any other Finance Document (including for the purposes of any Telenet Additional Facility)) to more than 50.00% and to exclude the available commitments of defaulting lenders for the purposes of amendments or waivers.
|
2.
|
Super Majority Lenders
: amend Credit Agreement to provide for a definition of Super Majority Lenders so that amendments and waivers in respect of the release of any guarantee or security only requires the consent of Lenders representing 90.00% of Commitments.
|
3.
|
Tax
: amend Clause 12 (
Taxes
) to include any provisions (which are not materially adverse to the interests of the Lenders) required to accommodate an acceding Additional Borrower incorporated in a jurisdiction other than Belgium, the Netherlands, Luxembourg and the United States.
|
4.
|
Market Disruption
: amend the Credit Agreement to include market disruption provisions and the provision of alternative interest rates in accordance with recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market.
|
5.
|
Geographic restrictions
: amend Clause 29.9 (
Additional Borrowers
) to provide that, in addition to the existing ability for an Additional Borrower incorporated in Benelux and the US to accede (without requiring any Lender consent), to provide an ability to accede Additional Borrowers incorporated in any other jurisdictions with the consent of the Majority Lenders.
|
6.
|
Holding Companies
: amend Clause 21.9(b)(iii) to expressly permit a merger of Telenet Group Holding NV, Telenet BVBA or Telenet Vlaanderen NV or any of their intermediate holding companies subject to compliance with the merger regime in recent Liberty precedents.
|
7.
|
Changes to Thresholds:
in the definition of Permitted Security Interest, permit the Company to secure Financial Indebtedness on a
pari passu
or junior ranking basis provided that (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) the Net Total Debt to Consolidated Annualised EBITDA ratio on a pro forma basis would not be greater than 5.50:1.00 and provided that such Financial Indebtedness is subject to an intercreditor agreement on terms which are satisfactory to the Security Agent (acting on the instructions of the Majority Lenders) and where (in the case of such Financial Indebtedness being secured on a junior ranking basis) the rights of the holders of such Financial Indebtedness in respect of any payment will be contractually subordinated to the rights of the Lenders on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt, as referred to in recent Liberty precedent.
|
8.
|
Security and Guarantee Release
: amend the relevant provisions of the Credit Agreement (in particular Clauses 21.17 (
Share Security
) and 29.11 (
Resignation of an Obligor(other than the Company)
)) to provide that, subject to certain thresholds being met no Obligor nor any other member of the Group is required to provide any Security or guarantee other than Security over the shares that it holds in any Obligor, Security required under the terms of the Credit Agreement in respect of Subordinated Shareholder Loans and a guarantee from the Obligors under the terms of the Credit Agreement and include a provision to authorise the Security Agent to release any other Security or guarantees other than the aforementioned and to release Security in respect of Permitted Disposals and to permit relevant Security to be released if a Guarantor resigns in accordance with Clause 29.11 (
Resignation of an Obligor (other than the Compan
y)) provided that the guarantor coverage test would still be met notwithstanding such release.
|
9.
|
Defaulting Lender
: include standard defaulting lender provisions used in recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market so as the commitments of a defaulting lender may be cancelled and it will have no rights to vote in respect of such cancelled commitments. Clarify that no commitment fee will be payable to a defaulting lender.
|
10.
|
Assignments/Transfers of Lenders:
clarify that the Company should have the right to withhold consent in respect of an assignment/transfer of the Revolving Facility to an entity which is not a lender under a revolving facility to the wider Liberty group (subject to no consent being required in the case of transfers to other Lenders or affiliates of Lenders or following an event of default which is continuing).
|
11.
|
Assignments/Transfers of Obligors
: amend Clause 29.2 (
Assignment or Transfer by Obligors
) so that any Benelux Borrower may assign or transfer any of its rights and obligations under the Revolving Facility or the Term Loans to another Benelux Borrower and so that any US Borrower may do the same to another US Borrower, in each case, without the prior consent of the Lenders provided that a solvency opinion and legal opinion are provided, if requested, in accordance with recent Liberty precedents in respect of an equivalent provision.
|
12.
|
Amendments
:
|
(a)
|
amend Clause 28 (
Amendments and waivers
) to introduce a class exception, whereby any amendment or waiver that relates only to the rights or obligations of a particular Utilisation or Facility and does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations or Facilities only requires the consent of the relevant proportion of Lenders participating in such Utilisation or Facility;
|
(b)
|
amend Clause 28.2 (
Exceptions
) to require the consent of affected Lenders only and not all Lenders (and make any consequential changes by amending for example, all references to matters requiring all Lender consent to only requiring affected Lender consent); and
|
(c)
|
include a new paragraph (d) to Clause 28.2 (
Exceptions
), to permit the Facility Agent to make technical, minor, operational and OID amendments without consent from any Lenders, on terms consistent with recent Liberty precedent as at the date of implementation of the amendments.
|
13.
|
Joint Ventures and solvent reorganisations
: amend the Credit Agreement to permit Telenet BVBA to contribute freely pledged loan and guarantee receivables to the Permitted Joint Venture’s share capital without requiring a release from the Security Agent (subject to confirmation or re-taking of security over such pledged loan and guarantee receivables).
|
14.
|
Accession Agreements:
amend each Accession Agreement to remove the restriction which prevents:
|
(d)
|
Telenet BVBA from arranging an Additional Facility if after giving effect to a utilisation thereunder, the ratio of Net Total Senior Debt to Consolidated Annualised EBITDA would be greater than 4.50:1; and
|
(e)
|
the Company from requesting the transfer of an Additional Facility pursuant to Clause 28.3 (
Non-Consenting Lenders
).
|
15.
|
Non-Consenting Lenders
: remove the timing window of 90 days during which the Company may effect the provisions set out in Clause 28.3 (
Non-Consenting Lenders
).
|
1.
|
Super Majority Lenders
: delete paragraph (a)(vii) of Clause 28.2 (
Exceptions
).
|
2.
|
Market Disruption:
amend the Credit Agreement to include provisions for the protection of reference banks and their officers in accordance with recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market.
|
3.
|
Amendments
:
|
(a)
|
include a new clause such that 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 10 Business 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, and delete the proviso to the definition of Majority Lenders; and
|
(b)
|
delete paragraph (a)(vi) of Clause 28.2 (
Exceptions
) and provide that guarantees and security can be released with the consent of the Lenders representing 90% of Commitments.
|
4.
|
Additional Borrowers
: Additional Borrowers may be incorporated in the Kingdom of Belgium, Netherlands, Luxembourg or, in relation to any new Additional Facilities, in the United Kingdom.
|
5.
|
Mandatory Costs
: delete all references in each Additional Facility Accession Agreement to Mandatory Costs and any related provisions.
|
6.
|
Permitted Disposals
:
|
(a)
|
amend the definition of Permitted Disposal to include in addition to the existing “Permitted Disposals”:
|
(i)
|
disposals by one member of the Group to another member of the Group provided that, if such assets subject to the disposal are subject to existing security, the Borrower within 15 Business Days of such disposal ensures that the assets remain subject to security; and
|
(ii)
|
disposals of shares or other interests in project companies, entities excluded from the Group which are subsidiaries of the Company or joint venture companies (each as defined in recent Liberty precedent) or the assignment of any Financial Indebtedness owed to a member of the Group by any project companies, entities excluded from the Group which are subsidiaries of the Company or a joint venture company.
|
1.
|
Ancillary Facilities
: amend the Credit Agreement to provide that (i) a date specified in a conversion notice as the effective date for an ancillary facility commitment may be a date not less than 3 Business Days after the date such conversion notice is received by the Facility Agent, (ii) any proposed increase or reduction or extension of the ancillary facility commitment shall only take effect from a date not less than 3 Business Days after the date the Facility Agent has received notice of the relevant modification or variation or extension and (iii) an ancillary facility lender may demand repayment or prepayment of any amounts under its ancillary facility if the ancillary facility outstandings under that ancillary facility can be repaid by a revolving facility advance (and not less than 7 Business Days notice (or such shorter period as agreed to by the Company) is given to the relevant Borrower before payment becomes due).
|
2.
|
Defaulting Lender
: amend the Credit Agreement to include the right to replace a Lender (in whole and at par) if that Lender becomes a Defaulting Lender.
|
1.
|
Transfers
: amend clause 29.3 (
Transfers by Lenders
) of the Credit Agreement to provide that the consent of the Company is not required for any assignment or transfer by a Lender if an Event of Default is outstanding pursuant to any of clauses 22.2 (
Non-payment
), 22.6 (
Insolvency
), 22.7 (
Insolvency Proceedings
), 22.8 (
Creditors’ Process
) or 22.9 (
Similar Proceedings
) only (rather than if any Event of Default is outstanding).
|
2.
|
New RCF Maintenance Covenant
: amend the Credit Agreement to provide that amendments and waivers of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) to 20.4 (
Cure provisions
) and the new acceleration clause at (d) above shall only be made with the consent of the Company and the Composite Revolving Facility Instructing Group and shall not require the consent of any other Finance Party.
|
1.
|
Lender Assignments
: amend Clause 29 (
Changes to Parties
) of the Credit Agreement to provide that Lenders may transfer their rights and obligations under the Credit Agreement by way of assignment (subject to equivalent conditionality (including as set out in Clause 29.3 (
Transfers by Lenders of the Credit Agreement
)) as applies to the regime for transfers by Lenders of their rights and obligations by way of novation under the Credit Agreement and otherwise in accordance with recent Liberty precedent).
|
1.
|
Solvent Liquidation:
Amend the Credit Agreement to provide for releases of Security as a result of, and in connection with, any solvent liquidation or dissolution that complies with Clause 21.24 (
Internal Reorganisations
) of the Credit Agreement.
|
2.
|
Non-Consenting Lenders:
Remove the timing window of 90 days during which the Company may exercise its rights as set out in Clause 28.3 (
Non Consenting Lenders
) such that the Company may exercise such rights at any time.
|
3.
|
Waivers
: Add a new limb to Clause 28.1 (
Procedure
) as follows:
|
4.
|
Transfers
: Delete paragraph (b) of Clause 29.3 (
Transfers by Lenders
) in its entirety and replace it with the following:
|
1.
|
Agent’s Spot Rate of Exchange:
delete the definition of Agent’s Spot Rate of Exchange and replace it with the following:
|
2.
|
Ancillary Facility Lender:
delete the definition of Ancillary Facility Lender and replace it with the following:
|
3.
|
Consolidated EBITDA:
amend the definition of Consolidated EBITDA to:
|
(a)
|
amend limb (l) to move the words “any Holding Company Expenses paid to the extent that they were permitted to be paid under this Agreement for such Measurement Period” to a new paragraph (m) and to delete the word “and” before “any Holding Company Expenses”; and
|
(b)
|
amend limb (n) to include the words “or transfer of assets” after the words “sale of assets”.
|
4.
|
Distribution Business:
include the following new definition:
|
(a)
|
the business of upgrading, constructing, creating, developing, acquiring, operating, owning, leasing and maintaining cable television networks (including for the avoidance of doubt master antenna television, satellite master antenna television, single and multi-channel microwave single or multi-point distribution systems and direct-to-home satellite systems) for the transmission, reception and/or delivery of multi-channel television and radio programming, telephony and internet and/or data services to the residential markets; or
|
(b)
|
any business which is incidental to or related to and, in either case, material to such business.”
|
5.
|
Excess Capacity Network Service:
include the following new definition:
|
6.
|
Financial Indebtedness:
amend the definition of Financial Indebtedness to:
|
(a)
|
delete limb (e); and
|
(b)
|
delete limb (d) and replace it with the following:
|
7.
|
Guarantor:
delete the definition of Guarantor and replace it with the following:
|
8.
|
Impaired Agent:
amend limb (c) of the definition of Impaired Agent to include the words “or (c)” before the words “of the definition of “
Defaulting Lender
”” and to replace the word “or” between the words “paragraph (a)” and “(b)”with a comma.
|
9.
|
Majority Lenders:
delete the final proviso paragraph of the definition of Majority Lenders and provide that it is subject to the snooze and lose provision to be included pursuant to paragraph 21 of Schedule 5 and Clause 10.7(d).
|
10.
|
Permitted Acquisition:
amend the definition of Permitted Acquisition to:
|
(a)
|
include an additional limb as follows:
|
(b)
|
amend limb (m) to include the words “, within 60 days of the date of such conversion,” after the words “ensure that the Security Agent is”;
|
(c)
|
delete the proviso at the end of the definition after paragraph (u); and
|
(d)
|
include an additional limb as follows:
|
11.
|
Permitted Disposal
: amend the definition of Permitted Disposal to:
|
(a)
|
amend limb (t) to delete “€50,000,000” and replace it with “€150,000,000” and to delete “1%” and replace it with “three per cent.”;
|
(b)
|
amend limb (t) to add the following to the end of limb (t) of the definition of Permitted Disposal:
|
(c)
|
amend limb (hh) to delete each reference to “€50,000,000” and replace it with “€150,000,000”;
|
(d)
|
amend limb (ii) to:
|
(i)
|
include, at the end of the limb, the words “and any disposal of assets pursuant to sale and leaseback transactions constituting Financial Indebtedness to the extent such Financial Indebtedness is permitted under this Agreement” after “in any financial year”;
|
(ii)
|
delete “2%” and replace it with “3%”; and
|
(iii)
|
delete “€100,000,000” and replace it with “€150,000,000”;
|
(e)
|
include an additional limb as follows:
|
(A)
|
undertakings, assets, rights and revenues comprising interests in the share capital of any person engaged solely in the competitive local exchange carrier (CLEC) business, including without limitation, the business of providing traditional voice and data services and services based on Transmission Control Protocol/Internet Protocol (RCP/IP) technology and other undertakings, assets, rights or revenues constituting a part of such businesses; and
|
(B)
|
undertakings, assets, rights and revenues comprising interests in the share capital of any person engaged solely in the business of television and radio programming, including without limitation, the business or creating and distributing special interest television channels, radio programmes, pay per view programmes and near video on demand services and other undertakings, assets, rights or revenues constituting a part of such businesses;”; and
|
(f)
|
delete limb (ww)(iii).
|
12.
|
Permitted Financial Indebtedness:
amend the definition of Permitted Financial Indebtedness to:
|
(a)
|
include an additional limb as follows:
|
(b)
|
include an additional limb as follows:
|
(A)
|
the extent of such recourse to such member of the Group is limited solely to the amount of any recoveries made on any such enforcement;
|
(B)
|
such person or persons are not entitled, pursuant to the terms of any agreement evidencing any right or claim arising out of or in connection with such Financial Indebtedness, to commence proceedings for the winding up, dissolution or administration of any member of the Group (or proceedings having an equivalent effect) or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of any member of the Group or any of its assets (save only for the Non-Distribution Business Assets the subject of that Security Interest) until after the Commitments have been reduced to zero and all amounts outstanding under the Finance Documents have been repaid or paid in full; and
|
(C)
|
the aggregate outstanding amount of all such Financial Indebtedness of all members of the Group does not exceed €100,000,000 (or its equivalent in other currencies);”
|
(c)
|
amend limb (i) to delete the words “under paragraph (jj), (kk) and (ll) of that definition”; and
|
(d)
|
amend limb (r) to delete the words “no Default or”.
|
13.
|
Permitted Joint Venture:
delete the words “provided that no Event of Default has occurred and is continuing at the time of such proposed acquisition”.
|
14.
|
Construction
:
|
(a)
|
Add a new limb to Clause 1.2 (
Construction
) as follows:
|
15.
|
Permitted Payments
:
|
(a)
|
Amend Clause 21.11 (
Restricted Payments
) to include an additional limb (c) as follows:
|
“(c)
|
The restriction contained in paragraph (a) on the payment by any member of the Group of Management Fees shall cease to apply during such period as the applicable ratio for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) is 3.50:1 (or less), provided that no Management Fees may be paid by any member of the Group at any time after a Relevant Event has occurred or if a Relevant Event would result from such payment.”
|
(b)
|
Include the following new definition:
|
(c)
|
Include the following additional limb to the definition of Permitted Payment:
|
(d)
|
Amend limb (j) of the definition of Permitted Payment to delete the words “paragraph (s)” and replace them with “paragraph (jj)”.
|
(e)
|
Amend limb (cc) of the definition of Permitted Payment to delete “€10,000,000” and replace it with “€50,000,000”.
|
(f)
|
Delete limb (ll) of the definition of Permitted Payment and replace it with the following:
|
(g)
|
Delete “2%” and replace it with “3%” at limb (kk) of the definition of Permitted Payment.
|
(h)
|
Amend limb (r)(i) of the definition of Permitted Payment to replace the words “three days” with the words “three Business Days”.
|
16.
|
Signing Date:
amend all references to “the date of this Agreement” to “the Signing Date”.
|
17.
|
Wider Group:
amend paragraph (b) of the definition of Wider Group to add the words “(other than a member of the Group)” at the end.
|
18.
|
Spin-Off
: delete the existing definition of Spin-Off at Clause 10.2(c)(xi) (
Mandatory Prepayment - Change of Control
) and replace it with the following:
|
19.
|
Borrower
: delete the existing definition of Borrower and replace it with the following:
|
20.
|
Sub-participations
:
|
(a)
|
Include a new definition of Sub-participation as follows:
|
(b)
|
Amend Clause 29.3 (
Transfers by Lenders
) in order that this clause includes a restriction on Sub-participations of rights and obligations and is subject to the same consent regime as for assignments and transfers in accordance with recent Liberty precedent.
|
(c)
|
Add a new clause as follows:
|
(a)
|
such Lender remains a Lender under this Agreement with all rights and obligations pertaining thereto and remains liable under the Finance Documents for any such obligation;
|
(b)
|
such Lender retains exclusive control over all rights and obligations in relation to the participations and Commitments that are the subject of the relevant agreement or arrangement, including all voting rights (for the avoidance of doubt, free of any agreement or understanding pursuant to which it is required to or will consult with any other person in relation to the exercise of any such rights and/or obligations), unless:
|
(i)
|
the proposed sub-participant is a person to whom the relevant rights and obligations could have been assigned or transferred in accordance with the terms of this Clause 29; and
|
(ii)
|
prior to entering into the relevant agreement or arrangement, the relevant Lender provides the Company with full details of that proposed sub-participant and any voting, consultation or other rights to be granted to the sub-participant;
|
(c)
|
the relationship between the Lender and the proposed sub-participant is that of a contractual debtor and creditor (including in the bankruptcy or similar event of the Lender or an Obligor);
|
(d)
|
the proposed sub-participant will have no proprietary interest in the benefit of this Agreement or any of the Finance Documents or in any monies received by the relevant Lender under or in relation to this Agreement or any of the Finance Documents (in its capacity as sub-participant under that arrangement); and
|
(e)
|
the proposed sub-participant will under no circumstances: (i) be subrogated to, or be substituted in respect of, the relevant Lender’s claims under this Agreement or any of the Finance Documents; or (ii) otherwise have any contractual relationship with, or rights against, the Obligors under or in relation to this Agreement or any of the Finance Documents (in its capacity as sub-participant under that arrangement).”
|
(d)
|
Include the additional provision as follows:
|
“(a)
|
In the case of a Sub-participation (in each case, other than any non-voting derivatives (which are not participations) which would otherwise be caught by the definition of “Sub-participation”), the person granting the Sub-participation (or similar right) shall, acting solely for these purposes as non-fiduciary agent for the Company, maintain a register (a “
Sub-Participant Register
”) on which it enters the name and address of each sub-participant (or person holding the similar right) and the Commitment and obligations (including principal and stated interest) in which each sub-participant (or other person) has an interest or obligation.
|
(b)
|
Notwithstanding anything to the contrary hereunder, including without limitation Clause 24 (
Evidence and Calculations
), the entries in the Sub- Participant Register shall be conclusive absent manifest error, and such person maintaining the Sub-Participant Register shall treat each person whose name is recorded in the Sub-Participant Register as the owner of such Sub-participation (or similar right) for all purposes of a Finance Document notwithstanding any notice to the contrary.
|
(c)
|
Without prejudice to the other provisions of this Clause 29, no Lender shall have any obligation to disclose all or any portion of the Sub-Participant Register to any person (including the identity of any sub-participant or any
|
(e)
|
Amend Clause [23.14 (
Relationship with Lenders
)] to include an additional sub-paragraph as follows:
|
21.
|
Additional Facilities:
|
(a)
|
Add a new paragraph (i) to Clause 2.2 (
Telenet Additional Facility
) as follows:
|
(b)
|
Amend the Additional Facilities Cap as defined in Clause 2.2(g) (
Telenet Additional Facility
) such that:
|
(i)
|
it includes an additional limb for the aggregate amount of any voluntary prepayments of (A) Term Facility Advances that are secured on a
pari passu
basis with the other Facilities or (B) Advances under Revolving Facilities (to the extent accompanied by a corresponding permanent cancellation of the relevant Revolving Facility Commitments), in each case, to the extent the relevant prepayment or cancellation is not funded or effected with any long-term Financial Indebtedness (including Financial Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced with long-term Financial Indebtedness); and
|
(ii)
|
the Company shall have the ability to classify such amounts of Financial Indebtedness on the date of their incurrence and shall only be required to include the amount and type of such Financial Indebtedness in one of such sub-paragraphs and will be permitted on the date of such incurrence to divide and classify an item of such Financial Indebtedness in more than one of the types of Financial Indebtedness described in such paragraphs, and, from time to time, may reclassify all or a portion of such Financial Indebtedness, in any manner.
|
22.
|
Consolidated EBITDA
: amend the definition of Consolidated EBITDA under the Credit Agreement to provide that any adjustments to reduce the impact of the cumulative effect
|
23.
|
Additional Obligors
: Amend the Credit Agreement to provide that any Affiliate of the Company may accede to the Credit Agreement as a Guarantor in accordance with Clause 29.10 (
Additional Guarantors
) (provided that Security has been granted in form and substance satisfactory to the Facility Agent (acting reasonably) in favour of the Security Agent over 100% of its shares and all rights in relations to loans from members of the Wider Group to it) and that such Affiliate shall be a member of the Group and an Additional Guarantor. Add a new definition of “Affiliate Subsidiary” to Clause 1.1 (
Definitions
) such that it means any Affiliate of the Company that accedes to the Credit Agreement as a Guarantor pursuant to the amendments described in this paragraph and provided that it has not resigned as a Guarantor in accordance with the terms of the Credit Agreement.
|
24.
|
Right of Repayment and Cancellation in Relation to a Single Lender:
delete Clause 10.8(c)(i) and replace it with the following:
|
25.
|
Alternative Benchmarks
:
|
(a)
|
Add the following new definitions to Clause 1.1 (
Definitions
) as follows:
|
(b)
|
Replace the definition of “Screen Rate” in Clause 1.1 (
Definitions
) with the following:
|
(i)
|
at any time prior to an Alternative Benchmark Commencement Date in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
|
(ii)
|
at any time on or following an Alternative Benchmark Commencement Date in relation to LIBOR, the Alternative Benchmark Rate for the relevant currency and period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date; and
|
(i)
|
at any time prior to an Alternative Benchmark Commencement Date in relation to EURIBOR, the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
|
(ii)
|
at any time on or following an Alternative Benchmark Commencement Date in relation to EURIBOR, the Alternative Benchmark Rate for Euro for the relevant period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date,
|
26.
|
ERISA
:
|
(a)
|
Replace the definition of “ERISA Affiliate” in Clause 1.1 (
Definitions
) with the following:
|
(b)
|
Replace the definition of “Plan” in Clause 1.1 (
Definitions
) with the following:
|
(a)
|
maintained by any Obligor or any ERISA Affiliate; or
|
(b)
|
to which any Obligor or any ERISA Affiliate is required to make any payment or contribution.
|
(c)
|
Replace the definition of “Reportable Event” in Clause 1.1 (
Definitions
) with the following:
|
(a)
|
an event specified as such in section 4043 of ERISA or any regulation, other than an event in relation to which the requirement to give notice of that event is waived by any regulation; or
|
(b)
|
a failure to meet the minimum funding standard under section 412 or 430 of the Code or section 302 of ERISA, whether or not waived.
|
(d)
|
Amend Clause 18.16 (
ERISA
) to delete the words “member of the Group or”.
|
(e)
|
Delete paragraph (c) of Clause 19.6 (
Notification of Default
).
|
(f)
|
Delete Clause 21.19 (
ERISA
) and replace it with the following:
|
(a)
|
Each Obligor must as soon as reasonably practicable upon becoming aware of it notify the Facility Agent of:
|
(ii)
|
the termination of or withdrawal from, or any circumstances reasonably likely to result in the termination of or withdrawal from, any Plan; and
|
(iii)
|
any material non-compliance with any law or regulation relating to any Plan which is or is reasonably likely to have a Material Adverse Effect.
|
(b)
|
Each Obligor and its ERISA Affiliates must be, and remain, in compliance in all material respects with all laws and regulations relating to each of its Plans.
|
(c)
|
Each of the Obligors and its ERISA Affiliates must ensure that no event or condition exists at any time in relation to a Plan which is reasonably likely to result in the imposition of a lien or other encumbrance on any of its assets or which is reasonably likely to have a Material Adverse Effect.”
|
(g)
|
Delete Clause 22.15 (
ERISA
).
|
27.
|
Limited Condition Transaction
: amend the definition of “Limited Condition Transaction” in Clause 1.1 (
Definitions
) to include a third sub-paragraph as follows:
|
28.
|
Rollover
: Add a new definition of “Rollover Loan” in Clause 1.1 (
Definitions
) as follows:
|
(a)
|
“
Rollover Loan
” means:
|
(a)
|
a Rollover Advance that is for an amount which is equal to or less than the Maturing Advance in respect of which that Rollover Advance is being drawn to refinance; and
|
(b)
|
an Advance in relation to a Revolving Facility:
|
(i)
|
made or to be made on the same day that a demand by the Facility Agent pursuant to a drawing in respect of a Documentary Credit is due to be met;
|
(ii)
|
the aggregate amount of which is equal to or less than the amount of the relevant claim in respect of that Documentary Credit;
|
(iii)
|
in the same currency as the relevant claim in respect of that Documentary Credit; and
|
(iii)
|
made or to be made for the purpose of satisfying the relevant claim in respect of that Documentary Credit.
|
(b)
|
Amend paragraph (a) of Clause 4.2 (
Further Conditions Precedent
) to delete the reference to “Rollover Advance” and replace it with a reference to “Rollover Loan”.
|
(c)
|
Amend paragraph (c) of Clause 4.2 (
Further Conditions Precedent
), to delete the following words “Rollover Advance provided that the amount of the Maturing Advance is equal to or greater than the amount of that Rollover Advance” and
|
(d)
|
Amend Clause 8.2(a) (
Unavailability of Optional Currency
) to delete the reference to “Rollover Advance” and replace it with a reference to “Rollover Loan”.
|
(e)
|
Amend the title to Clause 9.2 (
Rollover Advances
) (and all other references in the Credit Agreement to that title) to refer to “(
Rollover
)” and further amend it so that the words “and in an amount which is equal to or less than” on the 6
th
line are deleted.
|
29.
|
Cost of Funds
:
|
(a)
|
Amend paragraph (b) of Clause 13.4 (
Cost of Funds
) such that it also applies if LIBOR or EURIBOR is to be determined by reference to a Reference Bank Rate or an Alternative Reference Bank Rate and to provide that, in entering into negotiations with the Company with a view to agreeing a substitute basis for determining the rate of interest, the Facility Agent may act in its sole discretion and will not be required to consult with or seek any consent or instruction from the Lenders or any other Finance Party.
|
(b)
|
Delete paragraph (c) of Clause 13.4 (
Cost of Funds
) and replace it with the following:
|
(c)
|
Amend paragraph (e) of Clause 13.4 (
Cost of Funds
) to provide that if a Lender does not supply a quotation by the given time period in paragraph (a)(ii), the rate of interest for that Lender will be the weighted average of the quotations notified to the Facility Agent by the other Lenders.
|
30.
|
US Regulations
:
|
(a)
|
Add a new definition of Regulation U in Clause 1.1 (
Definitions
) as follows:
|
(b)
|
Replace Clause 18.17 (
United States Regulation
) with the following:
|
(c)
|
Delete Clause 18.19 (
Margin stock
) and replace it with the following:
|
31.
|
Amendments and Waivers
:
|
32.
|
Guarantees
: amend Clause 21.13 (
Loans and Guarantees
) to:
|
(a)
|
add the words “in respect of Financial Indebtedness only” after the words “no member of the Group will make any loans, grant any credit or give any guarantee”;
|
(b)
|
add a new paragraph as a carve out as follows:
|
(c)
|
delete “€100,000,000” and replace it with “€150,000,000” and delete “2%” and replace it with “3%” at Clause 21.13(bb) (
Loans and Guarantees
);
|
(d)
|
amend paragraph (g) to include an additional limb (v) as follows:
|
“(v)
|
by an Obligor in respect of the liabilities of any other member of the Group which is not an Obligor provided that that other member of the Group must become an Additional Guarantor in accordance with Clause 29.10 (
Additional Guarantors
) within 30 days of the granting of the guarantee made pursuant to this paragraph (v);”
|
(e)
|
amend paragraph (z) to delete “€10,000,000” and replace it with “€25,000,000”; and
|
(f)
|
to include additional limbs as follows:
|
(i)
|
“any loans or guarantees relating to Excess Capacity Network Services provided that the price payable to 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 Group in providing such Excess Capacity Network Services;”; and
|
(ii)
|
“any guarantees or similar undertakings granted by any member of the Group in favour of any tax authority in respect of any obligations of a member of the Group in respect of tax in order to facilitate the winding up of any member of the Group provided that the Facility Agent shall have first received confirmation from the Company that based on discussions with such tax authority and the Company’s reasonable assumptions, the Company does not believe that the liability under such guarantee will exceed €15,000,000 (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);”
|
33.
|
Spin Parent
: delete the following sentence in paragraph (b) of Clause 10.2 (
Mandatory Prepayment – Change of Control
):
|
34.
|
Reporting
:
|
(a)
|
Delete the definition of GAAP in Clause 1.1 (
Definitions
) and replace it with the following:
|
(b)
|
Delete the definition of IFRS in Clause 1.1 (
Definitions
) and replace it with the following:
|
(c)
|
Delete Clause 19.5 (
Change in Accounting Principles
) in its entirety and replace it with the following:
|
“(a)
|
Except as otherwise expressly provided below or in this Agreement, all ratios and calculations based on IFRS contained in this Agreement shall be computed in conformity with IFRS.
|
(b)
|
At any time after the OFS Date, the Company may elect to apply for all purposes of this Agreement, in lieu of IFRS, GAAP and, upon such election, references to IFRS herein will be construed to mean GAAP;
provided
that:
|
(i)
|
all financial statements and reports to be provided, after such election, pursuant to this Agreement shall be prepared on the basis of GAAP as in effect from time to time (including that, upon first reporting its financial year results under GAAP, the financial statements of the Reporting Entity shall be restated on the basis of GAAP for the year ending immediately prior to the first financial year for which financial statements have been prepared on the basis of GAAP); and
|
(ii)
|
from and after such election, all ratios, computations and other determinations based on GAAP contained in this Agreement shall, at the Company’s option:
|
(A)
|
continue to be computed in conformity with GAAP (
provided
that, following such election, the annual and quarterly information required by paragraphs (a)(i) and (a)(ii) of Clause 19.1 (
Financial Statements
) shall include a reconciliation, either in the footnotes thereto or in a separate report delivered therewith, of such GAAP presentation to the corresponding GAAP presentation of such financial information); or
|
(B)
|
be computed in conformity with GAAP with retroactive effect being given thereto assuming that such election had been made on the OFS Date, subject to any further election in accordance with the definition of GAAP.
|
(d)
|
Amend paragraphs (a)(i) and (a)(ii) of Clause 19.1 (
Financial Statements
) to provide that the relevant financial statements or accounts (as applicable) shall be prepared in accordance with IFRS.
|
35.
|
Business Division Transactions and Joint Ventures
:
|
(a)
|
In Clause 1.1 (
Definitions
):
|
(i)
|
amend the definition of “Business Division Transaction” to delete the words “, in each case, where such transaction has the prior approval of the Majority Lenders”; and
|
(ii)
|
add the following new definitions:
|
(b)
|
Amend the definition of Permitted Payments and Clause 21.13 (
Loans and Guarantees
) to include the following additional carve outs in each such clause:
|
(i)
|
“in relation to any Permitted Business Division Transaction; and
|
(ii)
|
in relation to any Acceptable Joint Venture.”
|
(c)
|
Amend paragraph (m) of the definition of Permitted Disposal and paragraph (s)(iv) of the definition of Permitted Payment such that the word “Permitted” is added before the words “Business Division Transaction”.
|
36.
|
Permitted Security Interest
: amend the definition of “Permitted Security Interest” in Clause 1.1 (
Definitions
):
|
(a)
|
to include in addition to the existing “Permitted Security Interests”:
|
(b)
|
include the following additional limb:
|
37.
|
Permitted Acquisitions and Permitted Joint Ventures
: delete sub-paragraph (e)(iii) of the definition of Permitted Acquisition in Clause 1.1 (
Definitions
) and delete sub-paragraph (b)(ii) of the definition of Permitted Joint Venture in Clause 1.1 (
Definitions
).
|
38.
|
Auditors
: delete the definition of “Auditors” in Clause 1.1 (
Definitions
) and replace it with the following:
|
39.
|
Additional Facilities
: amend paragraph (g) and sub-paragraph (g)(i) of Clause 2.2 (
Telenet Additional Facility
) to read as follows:
|
“(g)
|
Subject to paragraph (h) below, the aggregate principal amount of any proposed Telenet Additional Facility shall not, at the election of the Company acting in its sole discretion (x) on the date that the Telenet Additional Facility becomes effective (giving pro forma effect to the intended use of proceeds of such Telenet Additional Facility and assuming that the entire amount of that Telenet Additional Facility is drawn on such date, and provided that an election that this sub-paragraph (x) shall apply may not be made in relation to that Telenet Additional Facility if an election that sub-paragraph (y) shall apply has previously been made in relation to that Telenet Additional Facility) or (y) on the date of each Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)) of that Telenet Additional Facility (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that Telenet Additional Facility is drawn) exceed the aggregate of the sum of:
|
(i)
|
an unlimited amount provided that on a pro forma basis Net Senior Debt to Consolidated Annualised EBITDA is equal to or less than 4.50:1;
|
40.
|
Construction
:
|
(a)
|
Amend Clause 1.2(a) (
Construction
) to add the following additional limbs:
|
(i)
|
“
fair market value
” unless otherwise specified, wherever such term is used in this Agreement, may be conclusively established by means of an officer’s certificate or a resolution of the board of directors of the Company, any Permitted Affiliate Parent or any Affiliate Subsidiary setting out such fair market value as determined by such officer or such board of directors in good faith;
|
(ii)
|
any matter being “
permitted
” under this Agreement or any other Finance Document shall include references to such matters not being prohibited or otherwise being approved under this Agreement or any other such Finance Document; and
|
(iii)
|
“
consolidated
” in connection with the financial position of, financial statements of or accounts of or financial definitions in relation to, the Group shall be construed to mean that the accounts of any Affiliate Subsidiary shall be combined for the purpose of determining such financial position, financial statements, accounts or financial definitions.
|
(b)
|
Amend Clause 1.2 (
Construction
) to add the following additional paragraphs:
|
“(x)
|
No personal liability shall attach to any director, officer or employee of any member of the Wider Group or Group for any representation or statement made by that member of the Wider Group or Group (as applicable) in a certificate signed by such director, officer or employee; and
|
(y)
|
No Default, Event of Default or breach of any representation and warranty or undertaking under the Finance Documents shall arise merely as a result of a subsequent change in the Euro equivalent of any relevant amount due to fluctuations in exchange rates.”
|
(c)
|
Amend Clause 1.2 (
Construction
) to include the following wording at the start of sub-paragraph (a)(xvii)(C) of Clause 1.2 (
Construction
):
|
(d)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(e)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(f)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(g)
|
Amend Clause 1.2 (
Construction
) to delete limb (v) of paragraph (a) and replace it with the following:
|
(h)
|
Amend Clause 1.2 (
Construction
) to delete limb (viii) of paragraph (a) and replace it with the following:
|
(i)
|
Amend Clause 1.2 (
Construction
) to include an additional limb of Clause 1.2 as follows:
|
(j)
|
Amend Clause 1.2 (
Construction
) to include an additional limb of Clause 1.2 as follows:
|
“(a)
|
This Agreement is entered into subject to, and with the benefit of, the terms of the Intercreditor Agreement.
|
(b)
|
Notwithstanding anything to the contrary in this Agreement, the terms of the Intercreditor Agreement will prevail if there is a conflict between the terms of this Agreement and the terms of the Intercreditor Agreement.”
|
(k)
|
Where relevant in the Credit Agreement, amend references to “company” or “entity” to “person” in accordance with paragraph (a)(vii) of Clause 1.2 (
Construction
).
|
41.
|
Increase
: amend Clause 2.1 (
Increase
) to:
|
(a)
|
delete sub-paragraphs (a)(i) and (a)(ii); and
|
(b)
|
delete sub-paragraph (a)(iii) and replace it with the following:
|
“(iii)
|
at the election of the Company acting in its sole discretion, it shall be a condition:
|
(A)
|
that the aggregate principal amount of any proposed increase in the Commitments shall not exceed,
mutatis mutandis
, the Additional Facilities Cap on the date that such increase in the Commitments becomes effective (giving pro forma effect to the intended use of proceeds of such increased Commitment and assuming that the entire amount of that increased Commitment is drawn on such date, and provided that an election that this paragraph (A) shall apply may not be made in relation to that increased Commitment if an election that paragraph (B) shall apply has previously been made in relation to that increased Commitment); or
|
(B)
|
to any Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)) of that increased Commitment that the aggregate principal amount of that increased Commitment to be drawn would not exceed,
mutatis mutandis
, the Additional Facilities Cap on the date of that Utilisation (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that increased Commitment is drawn); and”
|
42.
|
Increased Costs
:
|
(a)
|
Amend the first paragraph of Clause 14.1 (
Increased Costs
) to add “within ten Business Days of demand by the Facility Agent,” after “the Company must” in the first line.
|
(b)
|
Delete paragraph (a) of Clause 14.3 (
Claims
) and replace it with the following:
|
“(a)
|
A Finance Party intending to make a claim pursuant to Clause 14.1 (
Increased Costs
) shall, as soon as is reasonably practicable after that Finance Party becomes aware that circumstances have arisen which entitle it to make such claim, notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.”
|
43.
|
Springing Financial Covenant
: amend the covenant set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) so that is reads as follows:
|
“(a)
|
Subject to Clause 22.5 (
Cross-default and Cross-acceleration
), in the event that on the last day of a Measurement Period the aggregate of the Telenet Additional Facility Outstandings under any Revolving Facility (in each case, other than Documentary Credits that are cash collateralised or undrawn) and the net indebtedness outstanding under each Ancillary Facility less Cash of the Group exceeds an amount equal to 40 per cent. of the aggregate of the Revolving Facility Commitments and each Ancillary Facility Commitment (the “
Financial Ratio Test Condition
”), the Company shall procure that the ratio of Net Total Debt to Consolidated Annualised EBITDA on that day (the “
Financial Ratio
”) shall not exceed 6.00:1 unless otherwise agreed in writing by the Composite Revolving Facility Instructing Group and the Company.
|
(b)
|
If the financial covenant set out in paragraph (a) has been breached for a Measurement Period but is complied with on the last day of the next Measurement Period (either because the Financial Ratio Test Condition is not met for that next Measurement Period or because the Financial Ratio does not exceed 6.00:1 for that next Measurement Period), then, the prior breach of such financial covenant or any Event of Default arising therefrom shall not (or shall be deemed to not) directly or indirectly constitute, or result in, a breach of any representation, warranty, undertaking or other term in the Finance Documents or a Default or an Event of Default unless the Facility Agent has taken any action under Clause 22.18 (
Maintenance Covenant Revolving Facility Acceleration
) before the delivery of the certificate referred to at Clause 19.3(a) (
Compliance Certificate
) in respect of that next Measurement Period.”
|
44.
|
Financial Information:
amend paragraph (a) of Clause 19.3 (
Compliance Certificate
) so that it reads as follows:
|
“(a)
|
The Company must supply to the Facility Agent a Compliance Certificate with each set of its financial statements sent to the Facility Agent under this Agreement if, as at the last day of the Measurement Period ending on the date of such financial statements, the Financial Ratio Test Condition is met.”
|
45.
|
Cure Provisions:
delete Clause 20.4 (
Cure Provisions
) and replace it with the following:
|
“
20.4
|
Cure Provisions
|
(a)
|
The Company may cure a breach of the financial ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) by procuring that:
|
(i)
|
additional equity is injected into, and/or additional Subordinated Shareholder Loans is provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been deducted from Net Total Debt for the Measurement Period in respect of which the breach arose, would have avoided the breach; or
|
(ii)
|
additional equity is injected into, and/or additional Subordinated Shareholder Loans is provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been added to Consolidated Annualised EBITDA for the Measurement Period in respect of which the breach arose, would have avoided the breach; or
|
(iii)
|
any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility are prepaid (from any source selected by the Company in its sole discretion) in an amount which if
|
(b)
|
A cure under this Clause 20.4 will not be effective unless:
|
(i)
|
in the case of paragraph (a)(i) or (a)(ii) above, an amount equal to or greater than the required amount of additional equity or the proceeds of any Subordinated Shareholder Loans is received by one or more members of the Group; or
|
(ii)
|
in the case of paragraph (a)(iii) above, the amount of any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility that are required to be prepaid are so prepaid,
|
(c)
|
No cure may be made under this Clause 20.4 (
Cure Provisions
)
|
(i)
|
in respect of more than five Measurement Periods during the life of the Telenet Additional Facilities; or
|
(ii)
|
in respect of consecutive Measurement Periods.
|
(d)
|
The Company shall make an election (at its sole discretion) by notice to the Facility Agent prior to the end of the Cure Period as to whether a breach of the financial ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) shall be cured pursuant to a recalculation as described in either sub-paragraph (a)(i), (a)(ii) or (a)(iii) above.
|
(e)
|
If the Company makes an election for a recalculation as described in sub-paragraphs (a)(i) or (a)(ii) above, it shall be under no obligation to apply the amount of additional equity or the proceeds of any Subordinated Shareholder Loans that are received by one or more members of the Group in prepayment of the Facilities or for any other specific purpose and such amount will be deemed to be deducted from Net Total Debt or added to Consolidated Annualised EBITDA for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) (as applicable) as at the last day of the relevant Measurement Period.
|
(f)
|
If the Company makes an election for a recalculation as described in sub-paragraph (a)(iii) above, the amount of any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility that are prepaid shall be deemed to be deducted in the calculation of the Financial Ratio Test Condition for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) as at the last day of the relevant Measurement Period.
|
(g)
|
For the purpose of ascertaining compliance with Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
), the Financial Ratio Test Condition and the ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) will be tested or retested, as applicable, giving effect to the elections and adjustments referred to in paragraph (d), (e) and (f) above. If, after giving effect to such elections and adjustments, the requirements of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) are met, then the requirements under Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) shall be deemed to have been satisfied as at the relevant original date of determination.
|
(h)
|
Where a cure is exercised under this Clause 20.4 in respect of a breach of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) for any financial quarter and the Company makes an election for a recalculation as described in sub-paragraph (a)(ii) above, the amount of additional equity or the proceeds of any Subordinated Shareholder Loans that are received by one or more members of the Group shall also be added in calculating Consolidated EBITDA for any future Measurement Period that includes such financial quarter. Any adjustments pursuant to this paragraph will not be treated as a separate cure.”
|
46.
|
Permitted Disposal:
amend the definition of Permitted Disposal to add a new limb as follows:
|
47.
|
Permitted Financial Indebtedness
:
|
(a)
|
Amend Clause 21.7 (
Financial Indebtedness
) to add a new paragraph (d) as follows:
|
(b)
|
Amend the definitions of “Senior Debt” and “Total Debt” in Clause 1.1 (
Definitions
) to include an additional limb as follows:
|
48.
|
Related Fund
: amend:
|
(a)
|
Clause 1.1 (
Definitions
) to include a new definition of “Related Fund” as follows:
|
(b)
|
Clause 29.3 (
Transfers by Lenders
) at paragraph (c), to add the words “or, if applicable, a Related Fund” after the words “an Affiliate”.
|
49.
|
Share Capital
:
|
(a)
|
Amend Clause 21.16 (
Share Capital
) to add a new sub-paragraph (i) at the end as follows: “relates to the cancellation of the share capital of any member of the Group or any Obligor”.
|
(b)
|
Amend Clause 21.16 (
Share Capital
) to add the words “or a solvent liquidation under Clause 21.23 (
Internal Reorganisation
)” after the words “Clause 21.9(b)(iii) (
Acquisitions and Mergers
)”.
|
50.
|
Stamp Taxes
: delete Clause 12.7 (
Stamp Taxes
) in its entirety and replace it with the following:
|
(a)
|
any such Tax liabilities payable in connection with any Transfer Certificate or other document relating to the assignment or transfer by any Lender of any of its rights and/or obligations under any Finance Document; or
|
(b)
|
any registration duties and any Tax liability payable due to a registration, submission or filing by a Finance Party of any Finance Document where such registration, submission or filing is or was not required to maintain or preserve the rights of that Finance Party under the applicable Finance Documents.”
|
51.
|
Increased Costs
: Amend Clause 14.2 (
Exceptions
) to include the following additional limbs:
|
“(i)
|
attributable to a change (whether of basis, timing or otherwise) in the Tax liability on the overall net income of the Finance Party (or any Affiliate of it) or of the branch or office through which it lends any Advance;
|
(j)
|
attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority upon the Finance Party (or any Affiliate of it) by virtue of its having exceeded any country or sector borrowing limits or breached any directives imposed upon it;
|
(k)
|
attributable to a breach of a Finance Document by the Finance Party claiming such Increased Cost.”
|
52.
|
Representations
:
|
(a)
|
Delete Clause 18.12 (
Security Interests
) in its entirety.
|
(b)
|
Delete paragraph (b) of Clause 18.6 (
No Event of Default
).
|
(c)
|
Amend paragraph (a) of Clause 18.7 (
Authorisations
) to include the words “(other than the Licences)” after the word “licenses”.
|
(d)
|
Amend paragraph (b) of Clause 18.10 (
Litigation and Insolvency Proceedings
) to replace the words “member of the Group” with the words “Obligor or Material Subsidiary”.
|
(e)
|
Amend Clause 18.18 (
Anti-Terrorism Laws
) to delete the words “It and each of its Affiliates have taken commercially reasonable measures to ensure compliance with the Anti-Terrorism Laws” and to replace them with “It has taken commercially reasonable measures to ensure compliance with the Anti-Terrorism Laws.”
|
53.
|
Defaulting Lender Disenfranchisement
: in addition to paragraph 10 of Schedule 4, provide in the Credit Agreement as follows:
|
54.
|
Consolidated EBITDA
:
|
(a)
|
Amend paragraph (y) of the definition of Consolidated EBITDA in order that the following words are deleted:
|
(i)
|
are not included in the Company’s externally reported operating cash flow or equivalent measure; or
|
(ii)
|
are deemed to be exception of unusual items”.
|
(b)
|
Amend paragraph (g) of the definition of Consolidated EBITDA to add the words “or other equity based” after the words “any stock based”.
|
55.
|
80% Security Test:
add the following words at the end of the definition of 80% Security Test in Clause 1.1 (
Definitions
):
|
56.
|
Insolvency Event:
amend the definition of Insolvency Event in Clause 1.1 (
Definitions
) to replace the words “in relation to a Finance Party means that the Finance Party:” with the words “in relation to a Finance Party means that the Finance Party or a Holding Company of it (as applicable):”.
|
57.
|
Notes Refinancing:
amend the definitions of Senior Secured Notes Refinancing and Senior Unsecured Refinancing in Clause 1.1 (
Definitions
) to delete the word “reasonable” before the words “fees, costs and expenses”.
|
58.
|
Optional Currency:
amend the definition of “Optional Currency” in Clause 1.1 (
Definitions
) in order that the words “in relation to that Advance” are included after the words “acting on the instructions of all the Lenders”.
|
59.
|
Permitted Acquisition:
amend the definition of Permitted Acquisition in Clause 1.1 (
Definitions
):
|
(a)
|
at paragraph (d) to replace the words “less than a 50 per cent. interest” with the words “an interest of 50 per cent. or less”; and
|
(b)
|
at paragraph (j) to replace the words “10 Business Days” with the words “60 days”.
|
60.
|
Finance Document:
|
(a)
|
Amend the definition of “Finance Document” in Clause 1.1 (
Definitions
) to delete the words “a Transfer Certificate;” and include the words “any Increase Confirmation;”.
|
(b)
|
Amend the definition of “Finance Document” in Clause 1.1 (
Definitions
) to include the following wording at the end of the definition:
|
61.
|
Finance Party:
amend the definition of “Finance Party” in Clause 1.1 (
Definitions
) to include the following wording at the end of the definition:
|
62.
|
Term of Advance
: add a new clause 1.4 as follows:
|
63.
|
Exchange Rates:
add a new clause 1.5 as follows:
|
64.
|
Increase
: amend paragraph (b) of Clause 2.1 (
Increase
) to add a new limb (iii) as follows:
|
65.
|
Additional Facility
: amend paragraph (h) of Clause 2.2 (
Telenet
Additional Facility
) to:
|
(a)
|
delete sub-paragraphs (h)(ii)(A), (h)(ii)(B) and (h)(ii)(C); and
|
(b)
|
delete sub-paragraphs (h)(iii)(B), (h)(iii)(C) and (h)(iii)(D).
|
66.
|
Prepayments
: amend Clause 10.10 (
Miscellaneous Provisions
) to delete paragraph (g) and replace it with the following:
|
67.
|
Tax Indemnity
: amend paragraph (b)(ii) of Clause 12.4 (
Tax Indemnity
) to add an additional limb as follows:
|
68.
|
Representations:
amend Clause 18 (
Representations and Warranties
) by inserting the word “substantially” after the word “business” at Clause 18.2(b) (
Status
).
|
69.
|
Share Capital:
amend Clause 21.16 (
Share Capital
) to add words “that is a member of the Group” after the words “Each Obligor” and before the words “will not”.
|
70.
|
Obligor Accession:
amend Clause 21.22 (
Further Assurances
) in order that the words “10 Business Days” at paragraph (b)(i) are replaced with “60 days”.
|
71.
|
Breach of obligations EOD
: amend Clause 22.3(a) (
Breach of Other Obligations
) to add the following language at the end:
|
72.
|
Cross Default EOD
: amend Clause 22.5 (
Cross-default and Cross-acceleration
):
|
(a)
|
by deleting the words “is placed on demand;” at paragraph (b)(ii);
|
(b)
|
by deleting limb (c);
|
(c)
|
at paragraph (d)(v), by deleting the words “is not placed on demand, becomes” and replacing them with the words “does not become” and adding the word “not” before the words “otherwise accelerated during that period”; and
|
(d)
|
by adding the following additional limb to paragraph (d):
|
73.
|
Defaulting Lenders
: amend Clause 29.3 (
Transfers by Lenders
) in order that the following is included as a new Clause 29.3(h):
|
“(h)
|
Notwithstanding any other provision of this Agreement, no Lender shall be entitled to assign or transfer any of its rights, benefits or obligations under the Finance Documents to a New Lender that is a Defaulting Lender.”
|
74.
|
Amendments
: add a new paragraph (d) to Clause 28.2 (
Exceptions
) as follows:
|
75.
|
Measurement Period:
delete the definition of Measurement Period and replace it with the following:
|
76.
|
Consolidated Annualised EBITDA
: delete the definition of “Consolidated Annualised EBITDA” in Clause 1.1 (
Definitions
) and replace it with the following:
|
77.
|
Telenet Additional Facility:
|
(a)
|
Amend paragraph (h) of Clause 2.2 (
Telenet Additional Facility
) and paragraphs (a) and (b) of Clause 2.3 (
Overall Facility Limits
) to amend each reference from “Advances” and “advances” to “Utilisations”.
|
(b)
|
Amend limb (ii)(D) and (iii)(E) of paragraph (h) of Clause 2.2 (
Telenet Additional Facility
) to delete the word “reasonable” before the word “fees”.
|
(c)
|
Add an additional limb to Clause 2.2 (
Telenet Additional Facility
) as follows:
|
78.
|
Amount of Advance
: amend paragraph (b) of Clause 5.3 (
Amount of Advance or Documentary Credit
) to include the words “under that Facility” after the words “on behalf of the Lenders”.
|
79.
|
Revaluation of Documentary Credits:
|
(a)
|
Amend paragraph (a) of Clause 6.4 (
Revaluation of Documentary Credits
) to replace the words “at six monthly intervals after the date of the Documentary Credit” with the words “on the last Business Day of each financial year”.
|
(b)
|
Amend paragraph (b) of Clause 6.4 (
Revaluation of Documentary Credits
) to replace the words “three Business Days” with the words “ten Business Days”.
|
80.
|
Affiliates of Borrowers:
amend paragraph (c) of Clause 7.7 (
Affiliates of Borrowers
) to include the words “, provided that such Affiliate is not an Affiliate of any other Obligor, ” after the words “its Affiliate”.
|
81.
|
Right of Repayment and Cancellation of a Single Lender:
amend paragraph (a)(iii) of Clause 10.8 (
Right of Repayment and Cancellation of a Single Lender
) to include the words “or Clause 15 (
Illegality and Mitigation
)” after the words “Clause 10.1 (
Mandatory Prepayment – Illegality
)” and to replace the reference to “or” before the reference to “Clause 10.1” with a comma.
|
82.
|
Selection:
|
(a)
|
Amend paragraph (d)(ii) of Clause 11.5 (
Selection – Term Facility
) to replace the word “Facility” with “Term Facility Advance” throughout such paragraph and to replace the words “Lenders whose commitments under the relevant Facility then aggregate two thirds or more of the aggregate Commitments under that Facility” with “Majority Lenders under the relevant Facility”.
|
(b)
|
Amend paragraph (c) of Clause 11.6 (
Selection – Revolving Facility
) to replace the words “under that Revolving Facility” with “under the relevant Advance under that Revolving Facility” throughout such paragraph and to replace the words “Lenders whose Commitments under that Revolving Facility then aggregate two thirds or more of the aggregate Commitments under that Revolving Facility” with “the Majority Lenders under that Revolving Facility”.
|
83.
|
Payments:
amend Clause 16.4 (
Currency
) to include the following additional limbs and to re-number limb (c) to limb (e):
|
“(c)
|
A repayment or prepayment of an Advance is payable in the currency in which the Advance is denominated.
|
(d)
|
All interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated.”
|
84.
|
Information
: amend Clause 19.4 (
Information – Miscellaneous
) to delete paragraph (c) in its entirety.
|
85.
|
Change of Business
: delete Clause 21.8 (
Change of Business
) and replace it with the following:
|
86.
|
Acquisitions:
amend paragraph (b)(iii)(B) of Clause 21.9 (
Acquisitions and Mergers
) to replace the words “for the period commencing on the date of merger and ending on the earlier of the date that falls 3 years from the date of merger and the longest dated Final Maturity Date” with “on a pro forma basis following such merger or consolidation.”
|
87.
|
Insurance:
amend Clause 21.12 (
Insurance
) to delete the words “procure that each member of the Group will” and replace them with “procure that each of its Material Subsidiaries which is a member of the Group will”.
|
88.
|
Shareholder Loans:
amend paragraph (a) of Clause 21.14 (
Shareholder Loans
) to replace the words “30 days” with “60 days”.
|
89.
|
Share Security:
|
(a)
|
delete Clause 21.17 (
Share security
) and replace it with the following:
|
(a)
|
notwithstanding paragraph (b) below, an Obligor may issue shares to any person other than a member of the Group and shall not be required to procure that such shares are charged or pledged in favour of the Beneficiaries, provided that such share issue does not result in a Change of Control;
|
(b)
|
any member of the Group may issue shares to or otherwise acquire additional rights from any other member of the Group so long as (if any of the existing shares in the relevant member of the Group are charged or pledged in favour of any Beneficiary) such shares are charged or pledged in favour of the Beneficiaries pursuant to the terms of a Security Document and there are delivered at the same time to the Security Agent the relevant share certificates and blank stock transfer forms (or equivalent documents) in respect thereof together with such other documents and evidence and legal opinions as the Security Agent may reasonably require;
|
(c)
|
the Company may issue shares to Telenet Group BVBA provided that such shares are charged or pledged in favour of the Beneficiaries pursuant to the terms of a Security Document and there are delivered at the same time to the Security Agent the relevant share certificates and blank stock transfer forms (or equivalent documents) in respect thereof together with
|
(d)
|
any member of the Group may issue shares pursuant to the exercise of Approved Stock Options;
|
(e)
|
a member of the Group may issue shares as part of an Acquisition or merger or consolidation permitted by Clause 21.9 (
Acquisitions and Mergers
), provided that the issue of such shares does not cause a Change of Control;
|
(f)
|
a member of the Group (other than an Obligor) may issue shares to all the holders of the share capital of such member of the Group
pro rata
to their interests in such share capital provided that, if any existing shares in that member of the Group are charged or pledged in favour of any Beneficiary under any Security Document, upon issue the shares that are issued to any other member of the Group are charged or pledged in favour of the Beneficiaries as provided in paragraph (b) above; and
|
(g)
|
any member of the Group (other than the Company) may issue shares to any person pursuant to any agreement or other legally binding arrangement existing, and disclosed to the Facility Agent in writing, on or before the Signing Date, provided that such share issue does not result in a Change of Control.”
|
(b)
|
Add the following additional definition to Clause 1.1 (
Definitions
):
|
90.
|
Group Redesignation:
delete Clause 21.25 (
Group Redesignation
) and replace it with the following:
|
91.
|
Clean Up Period:
|
(a)
|
Amend the definition of Clean Up Period in Clause 22.3 (
Breach of Other Obligations
) to replace the words “120 days” with the words “180 days”.
|
(b)
|
Delete the words “(other than Clause 22.3(a) (
Breach of Other Obligations
) to the extent it refers to Clause 20 (
Financial Covenant
))” in paragraph (c) of Clause 22.3 (
Breach of Other Obligations
).
|
92.
|
Intercreditor Agreement:
amend paragraph (a) of Clause 22.12 (
Intercreditor Agreement
) to include the word “material” before the word “obligations”.
|
93.
|
Acceleration:
amend Clause 22.17 (
Acceleration
) to replace the words “may, and must if so instructed by the Majority Lenders” with the words “the Facility Agent shall, if the Majority Lenders so direct”.
|
94.
|
Indemnity:
|
(a)
|
Amend paragraph (a) of Clause 26.1 (
Currency Indemnity
) to include the words “, within 10 Business Days of demand” after the words “Obligor must”.
|
(b)
|
Amend paragraph (a)(i) of Clause 26.2 (
Other Indemnities
) to replace the word “Default” with the words “Event of Default”.
|
(c)
|
Amend paragraph (a) of Clause 26.3 (
Break Costs
) to include the words “, within ten Business Days of demand by a Lender, ” after the words “Each Borrower must”.
|
(d)
|
Amend paragraph (b) of Clause 26.3 (
Break Costs
) to include the words “, as soon as reasonably practicable after a demand by the Facility Agent, ” after the words “Each Lender must”.
|
95.
|
Amendments and waivers:
|
(a)
|
Amend Clause 28.2 (
Exceptions
) to add an additional limb (d) as follows:
|
“(d)
|
Notwithstanding any other provision of this Clause 28 (
Amendments and Waivers
), the Facility Agent may at any time without the consent or sanction 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:
|
(i)
|
would not be materially 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;
|
(ii)
|
relates to the increase in the principal amount of a Commitment of a Lender in relation to any Facility and such increased Commitment has been requested by the Company to fund any original issue discount required to be paid to that Lender in relation to that Facility under any Finance Document;
|
(iii)
|
is of a minor, operational or technical nature; or
|
(iv)
|
which relates to the implementation of any alternative basis for the calculation of interest that is binding on all Parties in accordance with paragraph (c) of Clause 13.4 (
Cost of Funds
).
|
(b)
|
Amend Clause 28.2 (
Exceptions
) to include the words “Subject to Clause 28.6 (
Structural Adjustments
) below,” at the beginning of paragraph (a).
|
(c)
|
Amend paragraph (a) of Clause 28.3 (
Non Consenting Lenders
) to delete limb (iii) in its entirety.
|
(d)
|
Add an additional provision to Clause 28.2 (
Exceptions
) as follows:
|
96.
|
Changes to the Parties:
|
(a)
|
Amend Clause 29.2 (
Assignment or Transfers by Obligors
) to include the words “except to the extent permitted by this Agreement” at the end of the paragraph.
|
(b)
|
Amend paragraph (a) of Clause 29.9 (
Additional Borrowers
) to delete the words “(following consultation with the Facility Agent)”.
|
(c)
|
Amend paragraph (b) of Clause 29.9 (
Additional Borrowers
) to include the words “under the relevant Facility” after the words “all the Lenders”.
|
(d)
|
Amend paragraph (b)(ii) of Clause 29.11 (
Resignation of an Obligor (other than the Company
) to replace the words “a Default” with the words “an Event of Default”.
|
97.
|
Governing law:
|
(a)
|
Delete Clause 38 (
Governing law
) and replace it with the following:
|
(b)
|
Amend the governing law provisions of the schedules to the Credit Agreement to refer to “non-contractual obligations” in conformity with paragraph (a) above.
|
98.
|
Order of Application:
amend Clause 10.4 (
Order of application
) by deleting sub-paragraph (e).
|
99.
|
Affiliate
: amend the definition of Affiliate in Clause 1.1 (
Definitions
) such that it reads as follows:
|
(a)
|
an Affiliate of the Company that issues any notes, bonds or other securities for the purpose of on-lending the proceeds of such issuances under a Facility and to a Borrower under this Agreement and which acts in accordance with the terms of any indentures or other documents governing such issuances (a “
Designated Notes Issuer
”) shall not be an Affiliate of the Company or any of its Affiliates; and
|
100.
|
Change of L/C Bank:
add the words “in relation to the Facility in respect of which such Documentary Credits are issued” after the words “Majority Lenders” in paragraph (c) of Clause 6.11 (
Appointment and Change of L/C Bank)
.
|
101.
|
Restricted Person:
amend the definition of Restricted Person in Clause 1.1 (
Definitions
) such that it reads as follows:
|
102.
|
Permitted Affiliate Group Designation:
amend limb (iv)(c) of Clause 29.8 (
Permitted Affiliate Group Designation
) to include the words “if available,” at the start of the limb.
|
103.
|
Permitted Payment
: add a new limb to the definition of Permitted Payment in Clause 1.1 (
Definitions
) as follows:
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
|
(
Signature Page to Facility AJ Accession Agreement
)
|
|
To:
|
The Bank of Nova Scotia as Facility Agent and KBC Bank NV as Security Agent
|
From:
|
The Telenet Additional Facility AK Lender
|
1.
|
In this Agreement:
|
2.
|
Unless otherwise defined in this Agreement, terms defined in the Credit Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the Credit Agreement. The principles of construction set out in Clause 1.2 (
Construction
) of the Credit Agreement apply to this Agreement as though they were set out in full in this Agreement.
|
3.
|
We refer to Clause 2.2 (
Telenet Additional Facility
) of the Credit Agreement. This is a Finance Document.
|
4.
|
This Agreement will take effect on the date on which the Facility Agent notifies the Borrower and the Telenet Additional Facility AK Lender that it has received the documents and evidence set out in Schedule 2 to this Agreement, in each case in form and substance satisfactory to it (acting reasonably) or, as the case may be, the requirement to provide any of such documents or evidence has been waived by the Facility Agent (acting on the instructions of the Telenet Additional Facility AK Lender) (the “
Effective Date
”). The Facility Agent must give this notification to the Borrower and the Telenet Additional Facility AK Lender promptly upon being so satisfied.
|
5.
|
The Telenet Additional Facility AK Lender agrees:
|
(a)
|
to become party to and to be bound by the terms of the Credit Agreement as a Lender in accordance with Clause 2.2 (
Telenet Additional Facility
) of the Credit Agreement; and
|
(b)
|
to become party to the Intercreditor Agreement as a Senior Lender for the purposes of the Intercreditor Agreement and confirm that, as from the date of this Agreement, it intends to be party to the Intercreditor Agreement as a Senior Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
6.
|
The Telenet Additional Facility Commitment in relation to the Telenet Additional Facility AK Lender (for the purpose of the definition of Telenet Additional Facility Commitment in Clause 1.1 (
Definitions
) of the Credit Agreement) is its Term Loan AK Facility Commitment.
|
7.
|
The Facility Agent will, for the purposes of any determination to be made under the Credit Agreement or this Agreement (other than in respect of the Proposed Amendments in respect of which consent has been given in accordance with Clause 27 and 28 hereof), apply the votes of the Telenet Additional Facility AK Lender in accordance with a written direction to be provided by the Telenet Additional Facility AK Lender. The Telenet Additional Facility AK Lender agrees that it will give any such direction in accordance with the provisions of Section 9.01 of the Indenture. For the avoidance of doubt, the Facility Agent may rely on any such directions received and shall have no duty to enquire or monitor as to whether such direction complies with Section 9.01 of the Indenture.
|
8.
|
The Term Loan AK Facility may be drawn by one Advance (subject to the provisions of Clause 9 below) on the Effective Date and such date will constitute the Availability Period for the Term Loan AK Facility. No more than one Request may be made in respect of the Term Loan AK Facility under the Credit Agreement, and such Request may only be in a principal amount of the Telenet Additional Facility Commitment in relation to the Term Loan AK Facility as set out in Clause 6 above.
|
9.
|
(a) Provided that any upsizing of the Term Loan AK Facility permitted under this Clause 9 will not breach any term of the Credit Agreement, the Term Loan AK Facility may be upsized by any amount, by the signing of one or more further Telenet Additional Facility AK Accession Agreements, that specify (along with the other terms specified therein) Telenet International Finance S.à r.l as sole Borrower and which specify Telenet Additional Facility Commitments denominated in euros, to be drawn in euros, with the same Final Maturity Date and Margin as specified in this Agreement.
|
(b)
|
For the purposes of this Clause 9 (unless otherwise specified), references to the Term Loan AK Facility shall include Advances made under any such further Telenet Additional Facility AK Accession Agreement.
|
(c)
|
Where any Term Loan AK Facility Loan has not already been consolidated with any other Term Loan AK Facility Loan, on the last day of any Term for such Term Loan AK Facility Loan, that Term Loan AK Facility Loan shall be consolidated with any other Term Loan AK Facility Loan which has a Term ending on the same day as that Term Loan AK Facility Loan and all such Term Loan AK Facility Loans will then be treated as one Advance.
|
10.
|
The Final Maturity Date in respect of the Term Loan AK Facility is 1 March 2028. Any outstanding Advance under the Term Loan AK Facility shall be repaid in full on the Final Maturity Date.
|
11.
|
The interest rate in relation to the Term Loan AK Facility will be a fixed rate of 3.500 per cent. per annum. Such interest rate will be calculated in accordance with Clause 11.1 (
Calculation of Interest
) of the Credit Agreement as being the sum of EURIBOR and the applicable Margin, where in order to achieve the fixed rate referred to above, the applicable Margin will be:
|
(a)
|
3.500 per cent. per annum, calculated on the basis of a 365 day or 366 day year (as applicable) and payable for the actual number of days elapsed; minus
|
(b)
|
EURIBOR.
|
12.
|
The first Term to apply to the Term Loan AK Facility Loan will be a period equal to the period running from the Effective Date up to and excluding 15 January 2018. The Borrower agrees that each subsequent Term under the Term Loan AK Facility will be 6 months.
|
13.
|
Upon the occurrence of a mandatory prepayment of the Term Loan AK Facility following a Change of Control, as defined under Clause 10.2 (
Mandatory Prepayment – Change of Control
) of the Credit Agreement, the Borrower under the Term Loan AK Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) an amount equal to 1 per cent. of the principal amount of the Term Loan AK Facility, plus accrued and unpaid interest to the due date of mandatory prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) under the Term Loan AK Facility on the actual date of such mandatory prepayment.
|
14.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of any of the Term Loan AK Facility by the Borrower under Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement (other than a voluntary prepayment complying with Clauses 17, 18 or 20 below) in an amount not to exceed 10% of the original principal amount of the Term Loan AK Facility during each twelve-month period commencing on the date of this Agreement, the Borrower under the Term Loan AK Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) an amount equal to 3.0% of the principal amount of the Term Loan AK Facility being prepaid, plus accrued and unpaid interest then due on the amount of the Term Loan AK Facility Loan prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower under the Term Loan AK Facility to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) on the actual date of such prepayment. Prior to 1 December 2022, to the extent that during any twelve-month period commencing on the date of this Agreement, the principal amount of the Term Loan AK Facility prepaid in any one or more voluntary prepayments is greater than an amount equal to 10% of the original principal amount of the Term Loan AK Facility (any such amount, the “
Excess Early Redemption Proceeds
”), the Borrower will apply the Excess Early Redemption Proceeds to a voluntary prepayment of the Term Loan AK Facility as described in Clause 15 below.
|
15.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of any or all of the Term Loan AK Facility by the Borrower under the Term Loan AK Facility under Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement with any Excess Early Redemption Proceeds (other than a voluntary prepayment complying with Clauses 17, 18 or 20 below), the Borrower under the Term Loan AK Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) an amount equal to the Additional Amount (as defined below) (calculated as of a date no more than three Business Days prior to the date of the relevant prepayment notice), plus accrued and unpaid interest on the amount of the Term Loan AK Facility Loan prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower under the Term Loan AK Facility to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) on the actual date of such prepayment.
|
(i)
|
“
Comparable German Bund Issue”
means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such prepayment date to 1 December 2022, and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to 1 December 2022; provided, however, that, if the period from such prepayment date to 1 December 2022 is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer, the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the period from such prepayment date to 1 December 2022 is less than one year, a fixed maturity of one year shall be used;
|
16.
|
On or after 1 December 2022 upon the occurrence of a voluntary prepayment of any or all of the Term Loan AK Facility by the Borrower under the Term Loan AK Facility under Clause 10.5 (
Voluntary prepayment
) of the Credit Agreement (other than a voluntary prepayment complying with Clause 17, 18, 19 and 21 below), the Borrower under the Term Loan AK Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) an amount equal to the relevant percentages of the principal amount of the Term Loan AK Facility being prepaid as set forth in the table below on, plus accrued and unpaid interest then due on the amount of the Term Loan AK Facility prepaid to, the due date of prepayment, if prepaid during the twelve-month period beginning on 1 December of the years indicated below:
|
Year
|
Prepayment Price expressed as a percentage of the principal amount of the Term Loan AK Facility
|
|
|
2022
|
1.750%
|
2023
|
0.875%
|
2024
|
0.438%
|
2025 and thereafter
|
0.000%
|
17.
|
Notwithstanding Clauses 14, 15 and 16:
|
(a)
|
if the Telenet Additional Facility AK Lender purchases any Notes in connection with any tender offer or other offer to purchase for the Notes (a “
Tender Offer
”), the Borrower will prepay an aggregate principal amount of the Term Loan AK Facility, pro rata based on the aggregate principal amount of Notes tendered in such Tender Offer and at a prepayment price of par plus any premium paid or less any discount received by the Telenet Additional Facility AK Lender in connection with the purchase of the Notes in
|
(b)
|
if following any Tender Offer, the Telenet Additional Facility AK Lender is entitled to, and elects to, redeem any remaining Notes at a price equal to the price paid to each other holder in such Tender Offer, then the Borrower will prepay the remaining principal amount of the Term Loan AK Facility at a prepayment price of par plus any premium paid or less any discount received by the Telenet Additional Facility AK Lender in connection with the purchase of the Notes in such Tender Offer, plus any accrued and unpaid interest to the date that any interest accrues under the Notes in connection with such redemption.
|
18.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of the Term Loan AK Facility by the Borrower pursuant to Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement with the Net Cash Proceeds of one of more Equity Offerings (the “
Equity Offering Early Redemption Proceeds
”) in an amount of up to 40% of the Term Loan AK Facility Loan, the Borrower shall upon not less than 10 days nor more than 60 days’ notice make a payment to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) in an amount (the “
Equity Claw Prepayment Premium
”) equal to 3.500 per cent. of the principal amount of the Term Loan AK Facility prepaid, together with any amounts due to the Telenet Additional Facility AK Lender in respect of a Tax Deduction plus accrued interest then due on the amount of the Term Loan AK Facility prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Telenet Additional Facility AK Lender) under the Term Loan AK Facility on the actual date of such prepayment provided that:
|
(a)
|
at least 50% of the principal amount of the Term Loan AK Facility remains outstanding immediately after any such prepayment; and
|
(b)
|
such prepayment is made not more than 180 days after the consummation of any Equity Offering.
|
(a)
|
matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
|
(b)
|
is convertible or exchangeable for Financial Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of Telenet Group BVBA, the Borrower or a Subsidiary of Telenet Group BVBA); or
|
(c)
|
is redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of the date (a) of the stated maturity of the Term Loan AK Facility or (b) on which there are no amounts under the Term Loan AK Facility outstanding,
provided
that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock;
provided, further
that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require Telenet Group BVBA to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (each defined in a substantially identical manner to the corresponding definitions in the Credit Agreement) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that Telenet Group BVBA may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by Telenet Group BVBA with any provisions of the Credit Agreement.
|
19.
|
In consideration for the Telenet Additional Facility AK-B Lender assuming the Telenet Additional Facility AK Lender’s obligations under the Indenture and provided that any corresponding conditions to such assumption set out in the Indenture have been satisfied substantially concurrently, the Telenet Additional Facility AK Lender agrees that upon receipt of not less than 8 Business Days’ written notice from the Borrower in relation to the Term Loan AK Facility and subject to satisfaction, substantially concurrently, of the other requirements of the Finance Documents it shall promptly on the transfer date (as agreed by the Facility Agent, the Telenet Additional Facility AK-B Lender and the Borrower) transfer its rights, title and obligations under the Term Loan AK Facility by executing a Transfer Certificate substantially in the form of Schedule 3 of this Telenet Additional Facility AK Accession Agreement in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement (and the Company shall procure the execution by the Telenet Additional Facility AK-B Lender of such Transfer Certificate) and deliver such Transfer Certificate to the Facility Agent (the “
Facility AK Loan Transfer
”). The Borrower shall have the right, but not the obligation, to deliver any such notice and to effect the Facility AK Loan Transfer. A copy of the written notice from the Borrower to the Telenet Additional Facility AK Lender shall also be provided to the Facility Agent on or around the date on which it is delivered to the Telenet Additional Facility AK Lender in accordance with this Clause 19. For the purpose of Clause
|
20.
|
In accordance with the Telenet Additional Facility AK-B Accession Agreement, on the Effective Date (as defined therein) the Telenet Additional Facility AK-B Lender will make or be deemed to have made, as applicable to the Telenet Additional Facility AK-B Borrower a Term Loan AK-B Facility Loan in an amount equal to its commitment under the Term Loan AK-B Facility (which shall be an amount equal to the then outstanding principal amount of the Term Loan AK Facility Loan) by, at the election of the Company, one or more of the following (the “
Belgian Issuer Rollover
”):
|
(a)
|
transferring all of its rights, title and obligations under the Term Loan AK Facility to the Telenet Additional Facility AK-B Borrower pursuant to a transfer certificate to be executed by each of the Telenet Additional Facility AK-B Lender, the Telenet Additional Facility AK-B Borrower and the Facility Agent in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement;
|
(b)
|
cash settling with (or netting against) proceeds received (or payable) in respect of the voluntary prepayment and cancellation of the Term Loan AK Facility Loan; and/or
|
(c)
|
any other means that may be permitted under the Finance Documents and applicable law provided that the Telenet Additional Facility AK Lender shall cease to have any rights or obligations under the Telenet Additional Facility AK Accession Agreement following the entry into the Telenet Additional Facility AK-B Accession Agreement.
|
21.
|
On the Effective Date (as defined in the Telenet Additional Facility AK-B Accession Agreement), accrued and unpaid interest in respect of the Term Loan AK Facility Loan shall be rolled over and deemed to be interest accrued in respect of the Term Loan AK-B Facility Loan. Such interest shall be due and payable, together with any additional accrued and unpaid interest on the Term Loan AK-B Facility Loan, on the first interest period payment date under the Term Loan AK-B
|
22.
|
The Borrower agrees that it will not request or require the transfer of all of the rights and obligations of the Telenet Additional Facility AK Lender (or cancel or reduce any of such Lender’s Commitments or repay or prepay the Term Loan AK Facility Loan) pursuant to Clause 10.8 (
Right of Repayment and Cancellation of a Single Lender
), Clause 10.9 (
Right of Cancellation in relation to a Defaulting Lender
) or Clause 28.3 (
Non-Consenting Lenders
) of the Credit Agreement.
|
23.
|
On the first Utilisation Date in respect of the Term Loan AK Facility, the Borrower confirms, on behalf of itself and the Company confirms on behalf of itself and each other Obligor, that the representations and warranties set out in Clause 18 (
Representations and Warranties
) of the Credit Agreement (except for Clauses 18.5 (
Non –conflict
), 18.6 (
No Event of Default
), 18.7 (
Authorisations
), 18.9 (
No Material Adverse Change
), 18.10 (
Litigation and Insolvency Proceedings
), 18.11 (
Tax Liabilities
), 18.12 (
Security Interests
), 18.13 (
Intellectual Property Rights
), 18.14 (
Environmental Laws
), 18.15 (
Ownership of Assets
), 18.16 (
ERISA
), 18.17 (
United States Regulations
) and 18.18 (
Anti-Terrorism Laws
)) are true and correct in all material respects as if made at the first Utilisation Date in respect of the Term Loan AK Facility with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement.
|
24.
|
Each of the Guarantors confirms that its obligations under Clause 17 (
Guarantee and Indemnity
) of the Credit Agreement, and each of the Existing Security Providers confirms that the Security Interests created pursuant to the Security Documents and its obligations under the Finance Documents, shall continue unaffected and that such obligations extend to the Total Commitments as increased by the addition of the Term Loan AK Facility and that such obligations shall be owed to each Finance Party including the Telenet Additional Facility AK Lender.
|
25.
|
The Telenet Additional Facility AK Lender confirms to each Finance Party (unless such Finance Party is also an Obligor) that:
|
(a)
|
it has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Credit Agreement and has not relied on any information provided to it by a Finance Party in connection with any Finance Document; and
|
(b)
|
it will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Credit Agreement or any Telenet Additional Facility Commitment is in force.
|
26.
|
The Term Loan AK Facility will be used for (i) the Refinancing, (ii) to service certain payments to the Telenet Additional Facility AK Lender under the Related Agreements and/or (iii) for general corporate purposes of the Group, which may include loans, distributions or other payments to the Company and its direct and indirect shareholders, share buybacks or a refinancing of outstanding debt.
|
27.
|
Subject to Clause 28 below and the provisions of the Indenture, for the purposes of any amendment or waiver, consent or other modification (including, with respect to any existing Default or Event of Default) that may be sought by the Company under the Credit Agreement
|
(a)
|
any and all of the items set out in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement; and
|
(b)
|
any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made either to implement the changes envisaged in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications)
to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement or to conform any Finance Document to Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement; and/or
|
(c)
|
any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made to conform any Finance Document to any Liberty Global Reference Agreement (provided that any amendment, waiver, consent or modification to conform the Credit Agreement or any other Finance Document to any Liberty Global Reference Agreement referred to at paragraphs (vi) to (xi), (xiii) and (xiv) and in respect of the schedules in relation to covenants, events of default or definitions in the Liberty Global Reference Agreements referred to at paragraphs (ii), (iii) and (v) of that definition, shall be limited to those that are mechanical in nature unless specifically referenced in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement and, in each case, any consequential amendments, waivers, consents or modifications),
|
28.
|
Following receipt of an amendment request from the Company and/or the Facility Agent in connection with all or any of the proposed amendments set out under Clause 27 above (the “
Requested Amendments
”) the Telenet Additional Facility AK Lender shall confirm whether, having regard to the relevant provisions of the Indenture, it is required to consent to the Requested Amendments. If the Telenet Additional Facility AK Lender is required to give such consent, it hereby acknowledges and agrees that the Facility Agent and/or the Security Agent may, but shall not be required to, send to the Telenet Additional Facility AK Lender any further formal amendment request in connection with all, or any of the Requested Amendments and the Facility Agent and/or the Security Agent shall be authorised to consent on behalf of the Telenet Additional Facility AK Lender, as a Lender under one or more Telenet Additional Facilities, to any such Requested Amendments (and the Facility Agent and/or the Security Agent shall be authorised to enter into any necessary documentation in connection with the same) and such consent shall be taken into account in calculating whether the Majority Lenders, or the relevant requisite
|
29.
|
The Telenet Additional Facility AK Lender hereby waives receipt of any fee in connection with the consent in Clause 28 above, notwithstanding that other consenting Lenders under the Credit Agreement may be paid a fee in consideration of such Lenders’ consent to any or all of the foregoing amendments, waivers or other modifications.
|
30.
|
The Telenet Additional Facility AK Lender and the Facility Agent agree to waive the notice period in respect of drawdown requests under Clause 5.1 (
Delivery of Requests
) of the Credit Agreement in respect of this Term Loan AK Facility.
|
31.
|
The Borrower and the Company agree that, notwithstanding the provisions of Clause 12 (Taxes) of the Credit Agreement, in connection with any payment required to be made by an Obligor to the Telenet Additional Facility AK Lender:
|
32.
|
The Telenet Additional Facility AK Lender, the Borrower and the Facility Agent acknowledge and agree that (a) the Term Loan AK Facility Loan shall be made by the Telenet Additional Facility AK Lender directly to the Borrower to an account notified by the Borrower to the Telenet Additional Facility AK Lender, rather than through the Facility Agent, and (b) in respect of any other payments of principal, interest or other amounts due under the Term Loan AK Facility, (i) the Borrower shall make payments payable by it to the Telenet Additional Facility AK Lender directly to the Telenet Additional Facility AK Lender (or to such account as the Telenet Additional
|
33.
|
The Telenet Additional Facility AK Lender agrees that without prejudice to Clause 29.4 (
Procedure for Transfer by way of Novation
) of the Credit Agreement, each New Lender (as defined in the Transfer Certificate referred to below) shall become, by the execution by the Facility Agent of a Transfer Certificate substantially in the form of Schedule 3 (
Transfer Certificate
(
Cash
)) to this Agreement, bound by the terms of this Agreement as if it were an original party hereto as a Telenet Additional Facility AK Lender and shall acquire the same rights, grant the same consents and assume the same obligations towards the other parties to this Agreement as would have been acquired, granted and assumed had the New Lender been an original party to this Agreement as a Telenet Additional Facility AK Lender.
|
34.
|
The Facility Office and address for notices of the Telenet Additional Facility AK Lender for the purposes of Clause 36.2 (
Contact details
) of the Credit Agreement will be that notified by the Telenet Additional Facility AK Lender to the Facility Agent.
|
35.
|
For the purposes of the Term Loan AK Facility and any Term Loan AK Facility Loan, and notwithstanding any provision of a Finance Document to the contrary:
|
(a)
|
The following defined terms shall have the following meanings in the Finance Documents:
|
(b)
|
Where they relate to a Luxembourg company, references in the Finance Documents to:
|
(i)
|
a
winding-up, administration
or
dissolution
includes, without limitation, bankruptcy (
faillite
), insolvency, voluntary or judicial liquidation (
liquidation volontaire ou judiciaire
), composition with creditors (
concordat préventif de faillite
), reprieve from payment (
sursis de paiement
), controlled management (
gestion contrôlée
), fraudulent conveyance (
actio pauliana
), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally;
|
(ii)
|
a
receiver
,
administrative receiver
,
administrator
or the like includes, without limitation, a
juge délégué, commissaire, juge-commissaire, liquidateur or curateur
;
|
(iii)
|
a
security interest
includes any
hypothèque, nantissement, gage, privilege, sûreté réelle, droit de rétention
and any type of real security or agreement or
|
(iv)
|
a person being
unable to pay its debts
includes that person being in a state of cessation of payments (
cessation de paiements
).
|
(c)
|
Any guarantee given by any Luxembourg Guarantor does not constitute a suretyship (
cautionnement
) in the sense of articles 2011 and subsequent of the Luxembourg civil code.
|
(d)
|
The maximum liability of any Luxembourg Guarantor under the Finance Documents shall be limited so that the maximum amount payable by the relevant Luxembourg Guarantor for the obligations of any Obligor, which is not a direct or indirect Subsidiary of such Luxembourg Guarantor, hereunder shall at no time exceed the Maximum Amount.
|
(i)
|
all moneys received by that Luxembourg Guarantor or direct or indirect Subsidiaries of that Luxembourg Guarantor (which are direct or indirect Subsidiaries of that Luxembourg Guarantor on the date hereof or which will be direct or indirect Subsidiaries of that Luxembourg Guarantor hereafter) as borrower under or pursuant to the Finance Documents; and
|
(ii)
|
the aggregate amount of the outstanding intercompany loans made to the Luxembourg Guarantor or direct or indirect Subsidiaries of that Luxembourg Guarantor (which are direct or indirect Subsidiaries of that Luxembourg Guarantor on the date hereof or which will be direct or indirect Subsidiaries of that Luxembourg Guarantor hereafter) by other members of the Group which have been funded with moneys received by the Borrowers under the Finance Documents (the
Loan Amount
); and
|
(iii)
|
an amount equal to 95% of the greater of:
|
(A)
|
the market value of the assets of the Luxembourg Guarantor at the time the guarantee is called less the Liabilities, other than the Loan Amount, at the time the guarantee is called; and
|
(B)
|
the market value of the assets of the Luxembourg Guarantor at the date of this Agreement less the Liabilities, other than the Loan Amount, at the time the guarantee is called.
|
(e)
|
Telenet International Finance S.à r.l. hereby expressly accepts and confirms, for the purposes of Articles 1278 and 1281 of the Luxembourg Civil Code, that notwithstanding any assignment, transfer and/or novation permitted under, and made in accordance with the provisions of this Agreement or the Finance Documents, the guarantee given by it guarantees all obligations of each Luxembourg Obligor (including without limitation, all obligations with respect to all rights and/or obligations so assigned, transferred or novated) and any security created under this Agreement or the Finance Documents shall be preserved for the benefit of any New Lender and each Luxembourg Obligor hereby accepts and confirms the aforementioned.
|
(f)
|
Qualifying Lender
means, in the case of a Luxembourg Borrower, a Lender which is entitled to receive interest payments free of withholding tax levied pursuant to the Luxembourg law of 23 December 2005, as amended, introducing a withholding tax of 20% on payments of interest or similar income made or ascribed by a paying agent established in Luxembourg to or for the benefit of an individual beneficial owner who is resident of Luxembourg or, in the case of a Belgian Borrower, has the meaning given to that term in the Credit Agreement.
|
36.
|
Each Existing Security Provider (other than the Company) irrevocably appoints the Company to act as its agent:
|
37.
|
If a term of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect:
|
(a)
|
the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or
|
(b)
|
the legality, validity or enforceability in other jurisdictions of that or any other term of this Agreement.
|
38.
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
39.
|
Clause 39.1 (
Jurisdiction
) of the Credit Agreement is incorporated into this Agreement as if set out in full and as if references in that clause to “the Finance Documents” is to this Agreement.
|
40.
|
This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement.
|
41.
|
This Agreement is a Creditor Accession Undertaking as defined in the Intercreditor Agreement.
|
42.
|
The Borrower under the Term Loan AK Facility hereby agrees that the Telenet Additional Facility AK Lender may disclose confidential information supplied to it by or on behalf of any Obligor in connection with the Finance Documents to the extent such disclosure is required by the terms of the Notes.
|
43.
|
For the purposes of any assignment, transfer or novation of rights and/or obligations (in whole or in part) by the Telenet Additional Facility AK Lender under Clause 29.3 (
Transfers by Lenders
) of the Credit Agreement, each of the Borrower and the Company hereby irrevocably consents to any assignment, transfer or novation made by the Telenet Additional Facility AK Lender (i) by way of security in favour of The Bank of New York Mellon, London Branch (as security trustee under the Indenture) and (ii) following an Event of Default under and as defined in the Indenture. The Telenet Additional Facility AK Lender may only deliver to the Facility Agent a completed Transfer Certificate if at that time it confirms to the Facility Agent in writing that an assignment, transfer or novation of the interest in the Term Loan AK Facility to be assigned, transferred or novated is not prohibited under the terms of any agreement that is binding on it or any of its assets.
|
44.
|
The parties acknowledge that this Agreement is a Finance Document.
|
Telenet Additional Facility AK Lender
|
Term Loan AK Facility Commitment
(€)
|
Telenet Finance Luxembourg Notes S. à r. l.
|
600,000,000
|
|
|
Total
|
600,000,000
|
|
|
1.
|
Obligors
|
(a)
|
A copy of the articles of association or equivalent constitutional documents of each Obligor and each Existing Security Provider.
|
(b)
|
A copy of a resolution of the board of directors or equivalent of each Obligor and each Existing Security Provider approving the terms of, and the transactions contemplated by, this Agreement and any other Finance Documents to which it is, or will become, a party.
|
(c)
|
A specimen of the signature of each person authorised on behalf of each Obligor and each Existing Security Provider to execute or witness the execution of this Agreement and any other Finance Document or to sign or send any document or notice in connection with this Agreement and any other Finance Document.
|
(d)
|
An up-to-date extract from the Luxembourg Trade and Companies Register in respect of each Obligor and each Existing Security Provider incorporated in Luxembourg or, to the extent such Obligor or Existing Security Provider is not registered with the Luxembourg Trade and Companies Register, a certificate from a notary residing in Luxembourg.
|
(e)
|
An up-to-date negative certificate (
certificat de non-inscription d'une decision judiciaire
) issued by the Luxembourg Trade and Companies register in respect of each Obligor and each Existing Security Provider incorporated in Luxembourg or, to the extent such Obligor or Existing Security Provider is not registered with the Luxembourg Trade and Companies Register, a certificate on solvency of an authorised signatory of the relevant Obligor or Existing Security Provider (as applicable).
|
(f)
|
A copy of the minutes of the shareholders' meeting of each Belgian Obligor and each Belgian Existing Security Provider in the form of a limited liability company (
naamloze vennootschap
) (except for Telenet Group Holding NV):
|
(i)
|
approving for the purposes of article 556 of the Belgian Companies Act, the terms of and transactions contemplated by this Agreement; and
|
(ii)
|
authorising named persons to fulfil the formalities with the Registry of the Commercial Court of the registered office of such Obligor or Existing Security Provider following the decision taken in accordance with the above.
|
(g)
|
A certificate of an authorised signatory of the Company:
|
(i)
|
confirming that utilising the Total Commitments (including the Term Loan AK Facility Commitments) in full would not breach any limit binding on any Obligor or Existing Security Provider; and
|
(ii)
|
certifying that each copy document specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2.
|
Legal opinions
|
(a)
|
A legal opinion of Allen & Overy LLP, English legal advisers to the Facility Agent, addressed to the Finance Parties and the initial purchasers under the Purchase Agreement executed in respect of the Notes.
|
(b)
|
A legal opinion of Allen & Overy (Belgium) LLP, Belgian legal advisers to the Facility Agent, addressed to the Finance Parties and the initial purchasers under the Purchase Agreement executed in respect of the Notes.
|
(c)
|
A legal opinion of Allen & Overy,
société en commandite simple
(Luxembourg), Luxembourg legal advisers to the Facility Agent, addressed to the Finance Parties and the initial purchasers under the Purchase Agreement executed in respect of the Notes.
|
(d)
|
A legal opinion of Ropes & Gray LLP, Delaware legal advisers to the Obligors and Existing Security Providers, addressed to the Finance Parties.
|
3.
|
Other Documents
|
(a)
|
Evidence that the agent of the Borrower under the Finance Documents for service of process in England has accepted its appointment.
|
(b)
|
A duly executed copy of the Fee Letter.
|
From:
|
[THE EXISTING LENDER] and [THE NEW LENDER]
|
(a)
|
Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement;
|
(b)
|
Clause 22.3 (
Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders
) of the Intercreditor Agreement; and
|
(c)
|
the Telenet Additional Facility Accession Agreement dated 13 December 2017, pursuant to which a €600,000,000 term loan facility is made available to the Borrower as a Telenet Additional Facility (
Term Loan AK Facility
) under the Credit Agreement (the
Telenet Additional Facility AK Accession Agreement
).
|
1.
|
We, [ ] (the
Existing Lender
) agree to novate and we, [ ] (the
New Lender
) agree to accept novation of all the Existing Lender's rights and obligations referred to in the Schedule on and from the Effective Date in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement and Clause 22.3 (
Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders
) of the Intercreditor Agreement.
|
2.
|
The New Lender confirms that it is bound by the terms of the Telenet Additional Facility AK Accession Agreement from the Effective Date as if it were an original party thereto as a Telenet Additional Facility AK Lender and shall acquire the same rights, grant the same consents and assume the same obligations towards the other parties to the Telenet Additional Facility AK Accession Agreement as would have been acquired, granted and assumed had the New Lender been an original party to the Telenet Additional Facility AK Accession Agreement as a Telenet Additional Facility AK Lender.
|
3.
|
For the purposes of Articles 1278 and 1281 of the Luxembourg Civil Code and Article 1278 of the Belgian Civil Code, each of the Existing Lender, the Facility Agent and the New Lender agree and each of the Existing Security Providers and Guarantors acknowledge and accept that the Security Documents will be preserved for the benefit of the New Lender in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement.
|
4.
|
The New Lender represents on the date of this Transfer Certificate that:
|
(a)
|
it is a Qualifying Lender; and
|
(b)
|
it is not a Lender that has met the conditions described in any of paragraphs (a) to (c) of Clause 12.6 (
U.S. Taxes
) of the Credit Agreement.
|
5.
|
This Transfer Certificate shall take effect on the date of this Transfer Certificate.
|
6.
|
For the purposes of this Transfer Certificate, “
Effective Date
” means the date specified under the Facility Agent's name in the relevant signature page to this Transfer Certificate.
|
7.
|
Each party to this document agrees, the Facility Agent agrees on behalf of each Finance Party, and Telenet BVBA agrees on behalf of each Obligor, that this document is a Transfer Certificate notwithstanding that its form is different to that required by the Credit Agreement.
|
8.
|
The New Lender, agrees to become party to the Intercreditor Agreement as a Senior Lender for the purposes of the Intercreditor Agreement and confirm that, as from the date of this Transfer Certificate, it intends to be party to the Intercreditor Agreement as a Senior Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
9.
|
This Transfer Certificate is a Finance Document.
|
10.
|
This Transfer Certificate may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Transfer Certificate by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Transfer Certificate.
|
11.
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
Facility Office
|
[ ]
|
1.
|
Majority Lenders
: amend Clause 1.1 (
Definitions
) of the Credit Agreement to reduce the fractions specified in the definitions of Majority Lenders, from two thirds or more (for any or all purposes under the Credit Agreement or any other Finance Document (including for the purposes of any Telenet Additional Facility)) to more than 50.00% and to exclude the available commitments of defaulting lenders for the purposes of amendments or waivers.
|
2.
|
Super Majority Lenders
: amend Credit Agreement to provide for a definition of Super Majority Lenders so that amendments and waivers in respect of the release of any guarantee or security only requires the consent of Lenders representing 90.00% of Commitments.
|
3.
|
Tax
: amend Clause 12 (
Taxes
) to include any provisions (which are not materially adverse to the interests of the Lenders) required to accommodate an acceding Additional Borrower incorporated in a jurisdiction other than Belgium, the Netherlands, Luxembourg and the United States.
|
4.
|
Market Disruption
: amend the Credit Agreement to include market disruption provisions and the provision of alternative interest rates in accordance with recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market.
|
5.
|
Geographic restrictions
: amend Clause 29.9 (
Additional Borrowers
) to provide that, in addition to the existing ability for an Additional Borrower incorporated in Benelux and the US to accede (without requiring any Lender consent), to provide an ability to accede Additional Borrowers incorporated in any other jurisdictions with the consent of the Majority Lenders.
|
6.
|
Holding Companies
: amend Clause 21.9(b)(iii) to expressly permit a merger of Telenet Group Holding NV, Telenet BVBA or Telenet Vlaanderen NV or any of their intermediate holding companies subject to compliance with the merger regime in recent Liberty precedents.
|
7.
|
Changes to Thresholds:
in the definition of Permitted Security Interest, permit the Company to secure Financial Indebtedness on a
pari passu
or junior ranking basis provided that (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) the Net Total Debt to Consolidated Annualised EBITDA ratio on a pro forma basis would not be greater than 5.50:1.00 and provided that such Financial Indebtedness is subject to an intercreditor agreement on terms which are satisfactory to the Security Agent (acting on the instructions of the Majority Lenders) and where (in the case of such Financial Indebtedness being secured on a junior ranking basis) the rights of the holders of such Financial Indebtedness in respect of any payment will be contractually subordinated to the rights of the Lenders on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt, as referred to in recent Liberty precedent.
|
8.
|
Security and Guarantee Release
: amend the relevant provisions of the Credit Agreement (in particular Clauses 21.17 (
Share Security
) and 29.11 (
Resignation of an Obligor(other than the Company)
)) to provide that, subject to certain thresholds being met no Obligor nor any other member of the Group is required to provide any Security or guarantee other than Security over the shares that it holds in any Obligor, Security required under the terms of the Credit Agreement in respect of Subordinated Shareholder Loans and a guarantee from the Obligors under the terms of the Credit Agreement and include a provision to authorise the Security Agent to release any other Security or guarantees other than the aforementioned and to release Security in respect of Permitted Disposals and to permit relevant Security to be released if a Guarantor resigns in accordance with Clause 29.11 (
Resignation of an Obligor (other than the Compan
y)) provided that the guarantor coverage test would still be met notwithstanding such release.
|
9.
|
Defaulting Lender
: include standard defaulting lender provisions used in recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market so as the commitments of a defaulting lender may be cancelled and it will have no rights to vote in respect of such cancelled commitments. Clarify that no commitment fee will be payable to a defaulting lender.
|
10.
|
Assignments/Transfers of Lenders:
clarify that the Company should have the right to withhold consent in respect of an assignment/transfer of the Revolving Facility to an entity which is not a lender under a revolving facility to the wider Liberty group (subject to no consent being required in the case of transfers to other Lenders or affiliates of Lenders or following an event of default which is continuing). There should be no unreasonableness qualifier on this right (in respect of the Revolving Facility only). Remove requirement of deemed consent within 10 Business Days in respect of each Revolving Facility.
|
11.
|
Assignments/Transfers of Obligors
: amend Clause 29.2 (
Assignment or Transfer by Obligors
) so that any Benelux Borrower may assign or transfer any of its rights and obligations under the Revolving Facility or the Term Loans to another Benelux Borrower and so that any US Borrower may do the same to another US Borrower, in each case, without the prior consent of the Lenders provided that a solvency opinion and legal opinion are provided, if requested, in accordance with recent Liberty precedents in respect of an equivalent provision.
|
12.
|
Amendments
:
|
(a)
|
amend Clause 28 (
Amendments and waivers
) to introduce a class exception, whereby any amendment or waiver that relates only to the rights or obligations of a particular Utilisation or Facility and does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations or Facilities only requires the consent of the relevant proportion of Lenders participating in such Utilisation or Facility;
|
(b)
|
amend Clause 28.2 (
Exceptions
) to require the consent of affected Lenders only and not all Lenders (and make any consequential changes by amending for example, all references to matters requiring all Lender consent to only requiring affected Lender consent); and
|
(c)
|
include a new paragraph (d) to Clause 28.2 (
Exceptions
), to permit the Facility Agent to make technical, minor, operational and OID amendments without consent from any Lenders, on terms consistent with recent Liberty precedent as at the date of implementation of the amendments.
|
13.
|
Joint Ventures and solvent reorganisations
: amend the Credit Agreement to permit Telenet BVBA to contribute freely pledged loan and guarantee receivables to the Permitted Joint Venture’s share capital without requiring a release from the Security Agent (subject to confirmation or re-taking of security over such pledged loan and guarantee receivables).
|
14.
|
Accession Agreements:
amend each Accession Agreement to remove the restriction which prevents:
|
(a)
|
Telenet BVBA from arranging an Additional Facility if after giving effect to a utilisation thereunder, the ratio of Net Total Senior Debt to Consolidated Annualised EBITDA would be greater than 4.50:1; and
|
(b)
|
the Company from requesting the transfer of an Additional Facility pursuant to Clause 28.3 (
Non-Consenting Lenders
).
|
15.
|
Non-Consenting Lenders
: remove the timing window of 90 days during which the Company may effect the provisions set out in Clause 28.3 (
Non-Consenting Lenders
).
|
1.
|
Super Majority Lenders
: delete paragraph (a)(vii) of Clause 28.2 (
Exceptions
).
|
2.
|
Market Disruption:
amend the Credit Agreement to include provisions for the protection of reference banks and their officers in accordance with recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market.
|
3.
|
Amendments
:
|
(a)
|
include a new clause such that 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 10 Business 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, and delete the proviso to the definition of Majority Lenders; and
|
(b)
|
delete paragraph (a)(vi) of Clause 28.2 (
Exceptions
) and provide that guarantees and security can be released with the consent of the Lenders representing 90% of Commitments.
|
4.
|
Additional Borrowers
: Additional Borrowers may be incorporated in the Kingdom of Belgium, Netherlands, Luxembourg or, in relation to any new Additional Facilities, in the United Kingdom.
|
5.
|
Mandatory Costs
: delete all references in each Additional Facility Accession Agreement to Mandatory Costs and any related provisions.
|
6.
|
Permitted Disposals
:
|
(a)
|
amend the definition of Permitted Disposal to include in addition to the existing “Permitted Disposals”:
|
(i)
|
disposals by one member of the Group to another member of the Group provided that, if such assets subject to the disposal are subject to existing security, the Borrower within 15 Business Days of such disposal ensures that the assets remain subject to security; and
|
(ii)
|
disposals of shares or other interests in project companies, entities excluded from the Group which are subsidiaries of the Company or joint venture companies (each as defined in recent Liberty precedent) or the assignment of any Financial Indebtedness owed to a member of the Group by any project companies, entities excluded from the Group which are subsidiaries of the Company or a joint venture company.
|
1.
|
Ancillary Facilities
: amend the Credit Agreement to provide that (i) a date specified in a conversion notice as the effective date for an ancillary facility commitment may be a date not less than 3 Business Days after the date such conversion notice is received by the Facility Agent, (ii) any proposed increase or reduction or extension of the ancillary facility commitment shall only take effect from a date not less than 3 Business Days after the date the Facility Agent has received notice of the relevant modification or variation or extension and (iii) an ancillary facility lender may demand repayment or prepayment of any amounts under its ancillary facility if the ancillary facility outstandings under that ancillary facility can be repaid by a revolving facility advance (and not less than 7 Business Days notice (or such shorter period as agreed to by the Company) is given to the relevant Borrower before payment becomes due).
|
2.
|
Defaulting Lender
: amend the Credit Agreement to include the right to replace a Lender (in whole and at par) if that Lender becomes a Defaulting Lender.
|
1.
|
Transfers
: amend clause 29.3 (
Transfers by Lenders
) of the Credit Agreement to provide that the consent of the Company is not required for any assignment or transfer by a Lender if an Event of Default is outstanding pursuant to any of clauses 22.2 (
Non-payment
), 22.6 (
Insolvency
), 22.7 (
Insolvency Proceedings
), 22.8 (
Creditors’ Process
) or 22.9 (
Similar Proceedings
) only (rather than if any Event of Default is outstanding).
|
2.
|
New RCF Maintenance Covenant
: amend the Credit Agreement to provide that amendments and waivers of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) to 20.4 (
Cure provisions
) and the new acceleration clause at (d) above shall only be made with the consent of the Company and the Composite Revolving Facility Instructing Group and shall not require the consent of any other Finance Party.
|
1.
|
Lender Assignments
: amend Clause 29 (
Changes to Parties
) of the Credit Agreement to provide that Lenders may transfer their rights and obligations under the Credit Agreement by way of assignment (subject to equivalent conditionality (including as set out in Clause 29.3 (
Transfers by Lenders of the Credit Agreement
)) as applies to the regime for transfers by Lenders of their rights and obligations by way of novation under the Credit Agreement and otherwise in accordance with recent Liberty precedent).
|
1.
|
Solvent Liquidation
: Amend the Credit Agreement to provide for releases of Security as a result of, and in connection with, any solvent liquidation or dissolution that complies with Clause 21.24 (
Internal Reorganisations
) of the Credit Agreement.
|
2.
|
Non-Consenting Lenders
: Remove the timing window of 90 days during which the Company may exercise its rights as set out in Clause 28.3 (
Non Consenting Lenders
) such that the Company may exercise such rights at any time.
|
3.
|
Waivers
: Add a new limb to Clause 28.1 (
Procedure
) as follows:
|
4.
|
Transfers
: Delete paragraph (b) of Clause 29.3 (
Transfers by Lenders
) in its entirety and replace it with the following:
|
1.
|
Agent’s Spot Rate of Exchange:
delete the definition of Agent’s Spot Rate of Exchange and replace it with the following:
|
2.
|
Ancillary Facility Lender:
delete the definition of Ancillary Facility Lender and replace it with the following:
|
3.
|
Consolidated EBITDA:
amend the definition of Consolidated EBITDA to:
|
(a)
|
amend limb (l) to move the words “any Holding Company Expenses paid to the extent that they were permitted to be paid under this Agreement for such Measurement Period” to a new paragraph (m) and to delete the word “and” before “any Holding Company Expenses”; and
|
(b)
|
amend limb (n) to include the words “or transfer of assets” after the words “sale of assets”.
|
4.
|
Distribution Business:
include the following new definition:
|
(a)
|
the business of upgrading, constructing, creating, developing, acquiring, operating, owning, leasing and maintaining cable television networks (including for the avoidance of doubt master antenna television, satellite master antenna television, single and multi-channel microwave single or multi-point distribution systems and direct-to-home satellite systems) for the transmission, reception and/or delivery of multi-channel television and radio programming, telephony and internet and/or data services to the residential markets; or
|
(b)
|
any business which is incidental to or related to and, in either case, material to such business.”
|
5.
|
Excess Capacity Network Service:
include the following new definition:
|
6.
|
Financial Indebtedness:
amend the definition of Financial Indebtedness to:
|
(a)
|
delete limb (e); and
|
(b)
|
delete limb (d) and replace it with the following:
|
7.
|
Guarantor:
delete the definition of Guarantor and replace it with the following:
|
8.
|
Impaired Agent:
amend limb (c) of the definition of Impaired Agent to include the words “or (c)” before the words “of the definition of “
Defaulting Lender
”” and to replace the word “or” between the words “paragraph (a)” and “(b)”with a comma.
|
9.
|
Majority Lenders:
delete the final proviso paragraph of the definition of Majority Lenders and provide that it is subject to the snooze and lose provision to be included pursuant to paragraph 21 of Schedule 5 and Clause 10.7(d).
|
10.
|
Permitted Acquisition:
amend the definition of Permitted Acquisition to:
|
(a)
|
include an additional limb as follows:
|
(b)
|
amend limb (m) to include the words “, within 60 days of the date of such conversion,” after the words “ensure that the Security Agent is”;
|
(c)
|
delete the proviso at the end of the definition after paragraph (u); and
|
(d)
|
include an additional limb as follows:
|
11.
|
Permitted Disposal
: amend the definition of Permitted Disposal to:
|
(a)
|
amend limb (t) to delete “€50,000,000” and replace it with “€150,000,000” and to delete “1%” and replace it with “three per cent.”;
|
(b)
|
amend limb (t) to add the following to the end of limb (t) of the definition of Permitted Disposal:
|
(c)
|
amend limb (hh) to delete each reference to “€50,000,000” and replace it with “€150,000,000”;
|
(d)
|
amend limb (ii) to:
|
(i)
|
include, at the end of the limb, the words “and any disposal of assets pursuant to sale and leaseback transactions constituting Financial Indebtedness to the extent such Financial Indebtedness is permitted under this Agreement” after “in any financial year”;
|
(ii)
|
delete “2%” and replace it with “3%”; and
|
(iii)
|
delete “€100,000,000” and replace it with “€150,000,000”;
|
(e)
|
include an additional limb as follows:
|
(A)
|
undertakings, assets, rights and revenues comprising interests in the share capital of any person engaged solely in the competitive local exchange carrier (CLEC) business, including without limitation, the business of providing traditional voice and data services and services based on Transmission Control Protocol/Internet Protocol (RCP/IP) technology and other undertakings, assets, rights or revenues constituting a part of such businesses; and
|
(B)
|
undertakings, assets, rights and revenues comprising interests in the share capital of any person engaged solely in the business of television and radio programming, including without limitation, the business or creating and distributing special interest television channels, radio programmes, pay per view programmes and near video on demand services and other undertakings, assets, rights or revenues constituting a part of such businesses;”; and
|
(f)
|
delete limb (ww)(iii).
|
12.
|
Permitted Financial Indebtedness:
amend the definition of Permitted Financial Indebtedness to:
|
(a)
|
include an additional limb as follows:
|
(b)
|
include an additional limb as follows:
|
(A)
|
the extent of such recourse to such member of the Group is limited solely to the amount of any recoveries made on any such enforcement;
|
(B)
|
such person or persons are not entitled, pursuant to the terms of any agreement evidencing any right or claim arising out of or in connection with such Financial Indebtedness, to commence proceedings for the winding up, dissolution or administration of any member of the Group (or proceedings having an equivalent effect) or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of any member of the Group or any of its assets (save only for the Non-Distribution Business Assets the subject of that Security Interest) until
|
(C)
|
the aggregate outstanding amount of all such Financial Indebtedness of all members of the Group does not exceed €100,000,000 (or its equivalent in other currencies);”
|
(c)
|
amend limb (i) to delete the words “under paragraph (jj), (kk) and (ll) of that definition”; and
|
(d)
|
amend limb (r) to delete the words “no Default or”.
|
13.
|
Permitted Joint Venture:
delete the words “provided that no Event of Default has occurred and is continuing at the time of such proposed acquisition”.
|
14.
|
Construction
:
|
(a)
|
Add a new limb to Clause 1.2 (
Construction
) as follows:
|
15.
|
Permitted Payments
:
|
(a)
|
Amend Clause 21.11 (
Restricted Payments
) to include an additional limb (c) as follows:
|
“(c)
|
The restriction contained in paragraph (a) on the payment by any member of the Group of Management Fees shall cease to apply during such period as the applicable ratio for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) is 3.50:1 (or less), provided that no Management Fees may be paid by any member of the Group at any time after a Relevant Event has occurred or if a Relevant Event would result from such payment.”
|
(b)
|
Include the following new definition:
|
(c)
|
Include the following additional limb to the definition of Permitted Payment:
|
(d)
|
Amend limb (j) of the definition of Permitted Payment to delete the words “paragraph (s)” and replace them with “paragraph (jj)”.
|
(e)
|
Amend limb (cc) of the definition of Permitted Payment to delete “€10,000,000” and replace it with “€50,000,000”.
|
(f)
|
Delete limb (ll) of the definition of Permitted Payment and replace it with the following:
|
(g)
|
Delete “2%” and replace it with “3%” at limb (kk) of the definition of Permitted Payment.
|
(h)
|
Amend limb (r)(i) of the definition of Permitted Payment to replace the words “three days” with the words “three Business Days”.
|
16.
|
Signing Date:
amend all references to “the date of this Agreement” to “the Signing Date”.
|
17.
|
Wider Group:
amend paragraph (b) of the definition of Wider Group to add the words “(other than a member of the Group)” at the end.
|
18.
|
Spin-Off
: delete the existing definition of Spin-Off at Clause 10.2(c)(xi) (
Mandatory Prepayment - Change of Control
) and replace it with the following:
|
19.
|
Borrower
: delete the existing definition of Borrower and replace it with the following:
|
20.
|
Sub-participations
:
|
(a)
|
Include a new definition of Sub-participation as follows:
|
(b)
|
Amend Clause 29.3 (
Transfers by Lenders
) in order that this clause includes a restriction on Sub-participations of rights and obligations and is subject to the same consent regime as for assignments and transfers in accordance with recent Liberty precedent.
|
(c)
|
Add a new clause as follows:
|
(a)
|
such Lender remains a Lender under this Agreement with all rights and obligations pertaining thereto and remains liable under the Finance Documents for any such obligation;
|
(b)
|
such Lender retains exclusive control over all rights and obligations in relation to the participations and Commitments that are the subject of the relevant agreement or arrangement, including all voting rights (for the avoidance of doubt, free of any agreement or understanding pursuant to which it is required to or will consult with any other person in relation to the exercise of any such rights and/or obligations), unless:
|
(i)
|
the proposed sub-participant is a person to whom the relevant rights and obligations could have been assigned or transferred in accordance with the terms of this Clause 29; and
|
(ii)
|
prior to entering into the relevant agreement or arrangement, the relevant Lender provides the Company with full details of that proposed sub-participant and any voting, consultation or other rights to be granted to the sub-participant;
|
(c)
|
the relationship between the Lender and the proposed sub-participant is that of a contractual debtor and creditor (including in the bankruptcy or similar event of the Lender or an Obligor);
|
(d)
|
the proposed sub-participant will have no proprietary interest in the benefit of this Agreement or any of the Finance Documents or in any monies received by the relevant Lender under or in relation to this Agreement or any of the Finance Documents (in its capacity as sub-participant under that arrangement); and
|
(e)
|
the proposed sub-participant will under no circumstances: (i) be subrogated to, or be substituted in respect of, the relevant Lender’s claims under this Agreement or any of the Finance Documents; or (ii) otherwise have any contractual relationship with, or rights against, the Obligors under or in
|
(d)
|
Include the additional provision as follows:
|
“(a)
|
In the case of a Sub-participation (in each case, other than any non-voting derivatives (which are not participations) which would otherwise be caught by the definition of “Sub-participation”), the person granting the Sub-participation (or similar right) shall, acting solely for these purposes as non-fiduciary agent for the Company, maintain a register (a “
Sub-Participant Register
”) on which it enters the name and address of each sub-participant (or person holding the similar right) and the Commitment and obligations (including principal and stated interest) in which each sub-participant (or other person) has an interest or obligation.
|
(b)
|
Notwithstanding anything to the contrary hereunder, including without limitation Clause 24 (
Evidence and Calculations
), the entries in the Sub- Participant Register shall be conclusive absent manifest error, and such person maintaining the Sub-Participant Register shall treat each person whose name is recorded in the Sub-Participant Register as the owner of such Sub-participation (or similar right) for all purposes of a Finance Document notwithstanding any notice to the contrary.
|
(c)
|
Without prejudice to the other provisions of this Clause 29, no Lender shall have any obligation to disclose all or any portion of the Sub-Participant Register to any person (including the identity of any sub-participant or any information relating to a sub-participant’s interest in any Advance, Commitments or other obligations under any Finance Documents) except to the extent that such disclosure is to a tax authority and is necessary to establish that such Advance, Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or is otherwise required thereunder.”
|
(e)
|
Amend Clause [23.14 (
Relationship with Lenders
)] to include an additional sub-paragraph as follows:
|
21.
|
Additional Facilities:
|
(a)
|
Add a new paragraph (i) to Clause 2.2 (
Telenet Additional Facility
) as follows:
|
(b)
|
Amend the Additional Facilities Cap as defined in Clause 2.2(g) (
Telenet Additional Facility
) such that:
|
(i)
|
it includes an additional limb for the aggregate amount of any voluntary prepayments of (A) Term Facility Advances that are secured on a
pari passu
basis with the other Facilities or (B) Advances under Revolving Facilities (to the extent accompanied by a corresponding permanent cancellation of the relevant Revolving Facility Commitments), in each case, to the extent the relevant prepayment or cancellation is not funded or effected with any long-term Financial Indebtedness (including Financial Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced with long-term Financial Indebtedness); and
|
(ii)
|
the Company shall have the ability to classify such amounts of Financial Indebtedness on the date of their incurrence and shall only be required to include the amount and type of such Financial Indebtedness in one of such sub-paragraphs and will be permitted on the date of such incurrence to divide and classify an item of such Financial Indebtedness in more than one of the types of Financial Indebtedness described in such paragraphs, and, from time to time, may reclassify all or a portion of such Financial Indebtedness, in any manner.
|
22.
|
Consolidated EBITDA
: amend the definition of Consolidated EBITDA under the Credit Agreement to provide that any adjustments to reduce the impact of the cumulative effect of a change in accounting principles or policies and changes as a result of the adoption or modification of accounting principles or policies can be added (at the Company’s option) to the operating income of the Group for that Measurement Period.
|
23.
|
Additional Obligors
: Amend the Credit Agreement to provide that any Affiliate of the Company may accede to the Credit Agreement as a Guarantor in accordance with Clause 29.10 (
Additional Guarantors
) (provided that Security has been granted in form and substance satisfactory to the Facility Agent (acting reasonably) in favour of the Security Agent over 100% of its shares and all rights in relations to loans from members of the Wider Group to it) and that such Affiliate shall be a member of the Group and an Additional Guarantor. Add a new definition of “Affiliate Subsidiary” to Clause 1.1 (
Definitions
) such that it means any Affiliate of the Company that accedes to the Credit Agreement as a Guarantor pursuant to the amendments described in this paragraph and provided that it has not resigned as a Guarantor in accordance with the terms of the Credit Agreement.
|
24.
|
Right of Repayment and Cancellation in Relation to a Single Lender:
delete Clause 10.8(c)(i) and replace it with the following:
|
25.
|
Alternative Benchmarks
:
|
(a)
|
Add the following new definitions to Clause 1.1 (
Definitions
) as follows:
|
(b)
|
Replace the definition of “Screen Rate” in Clause 1.1 (
Definitions
) with the following:
|
(i)
|
at any time prior to an Alternative Benchmark Commencement Date in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
|
(ii)
|
at any time on or following an Alternative Benchmark Commencement Date in relation to LIBOR, the Alternative Benchmark Rate for the relevant currency and period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date; and
|
(i)
|
at any time prior to an Alternative Benchmark Commencement Date in relation to EURIBOR, the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
|
(ii)
|
at any time on or following an Alternative Benchmark Commencement Date in relation to EURIBOR, the Alternative Benchmark Rate for Euro for the relevant period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date,
|
26.
|
ERISA
:
|
(a)
|
Replace the definition of “ERISA Affiliate” in Clause 1.1 (
Definitions
) with the following:
|
(b)
|
Replace the definition of “Plan” in Clause 1.1 (
Definitions
) with the following:
|
(a)
|
maintained by any Obligor or any ERISA Affiliate; or
|
(b)
|
to which any Obligor or any ERISA Affiliate is required to make any payment or contribution.
|
(c)
|
Replace the definition of “Reportable Event” in Clause 1.1 (
Definitions
) with the following:
|
(a)
|
an event specified as such in section 4043 of ERISA or any regulation, other than an event in relation to which the requirement to give notice of that event is waived by any regulation; or
|
(b)
|
a failure to meet the minimum funding standard under section 412 or 430 of the Code or section 302 of ERISA, whether or not waived.
|
(d)
|
Amend Clause 18.16 (
ERISA
) to delete the words “member of the Group or”.
|
(e)
|
Delete paragraph (c) of Clause 19.6 (
Notification of Default
).
|
(f)
|
Delete Clause 21.19 (
ERISA
) and replace it with the following:
|
(a)
|
Each Obligor must as soon as reasonably practicable upon becoming aware of it notify the Facility Agent of:
|
(ii)
|
the termination of or withdrawal from, or any circumstances reasonably likely to result in the termination of or withdrawal from, any Plan; and
|
(iii)
|
any material non-compliance with any law or regulation relating to any Plan which is or is reasonably likely to have a Material Adverse Effect.
|
(b)
|
Each Obligor and its ERISA Affiliates must be, and remain, in compliance in all material respects with all laws and regulations relating to each of its Plans.
|
(c)
|
Each of the Obligors and its ERISA Affiliates must ensure that no event or condition exists at any time in relation to a Plan which is reasonably likely to result in the imposition of a lien or other encumbrance on any of its assets or which is reasonably likely to have a Material Adverse Effect.”
|
(g)
|
Delete Clause 22.15 (
ERISA
).
|
27.
|
Limited Condition Transaction
: amend the definition of “Limited Condition Transaction” in Clause 1.1 (
Definitions
) to include a third sub-paragraph as follows:
|
28.
|
Rollover
: Add a new definition of “Rollover Loan” in Clause 1.1 (
Definitions
) as follows:
|
(a)
|
“
Rollover Loan
” means:
|
(a)
|
a Rollover Advance that is for an amount which is equal to or less than the Maturing Advance in respect of which that Rollover Advance is being drawn to refinance; and
|
(b)
|
an Advance in relation to a Revolving Facility:
|
(i)
|
made or to be made on the same day that a demand by the Facility Agent pursuant to a drawing in respect of a Documentary Credit is due to be met;
|
(ii)
|
the aggregate amount of which is equal to or less than the amount of the relevant claim in respect of that Documentary Credit;
|
(iii)
|
in the same currency as the relevant claim in respect of that Documentary Credit; and
|
(iii)
|
made or to be made for the purpose of satisfying the relevant claim in respect of that Documentary Credit.
|
(b)
|
Amend paragraph (a) of Clause 4.2 (
Further Conditions Precedent
) to delete the reference to “Rollover Advance” and replace it with a reference to “Rollover Loan”.
|
(c)
|
Amend paragraph (c) of Clause 4.2 (
Further Conditions Precedent
), to delete the following words “Rollover Advance provided that the amount of the Maturing Advance is equal to or greater than the amount of that Rollover Advance” and to replace them with the words “Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)”.
|
(d)
|
Amend Clause 8.2(a) (
Unavailability of Optional Currency
) to delete the reference to “Rollover Advance” and replace it with a reference to “Rollover Loan”.
|
(e)
|
Amend the title to Clause 9.2 (
Rollover Advances
) (and all other references in the Credit Agreement to that title) to refer to “(
Rollover
)” and further amend it so that the words “and in an amount which is equal to or less than” on the 6
th
line are deleted.
|
29.
|
Cost of Funds
:
|
(a)
|
Amend paragraph (b) of Clause 13.4 (
Cost of Funds
) such that it also applies if LIBOR or EURIBOR is to be determined by reference to a Reference Bank Rate or an Alternative Reference Bank Rate and to provide that, in entering into negotiations with the Company with a view to agreeing a substitute basis for determining the rate of interest, the Facility Agent may act in its sole discretion and will not be required to consult with or seek any consent or instruction from the Lenders or any other Finance Party.
|
(b)
|
Delete paragraph (c) of Clause 13.4 (
Cost of Funds
) and replace it with the following:
|
(c)
|
Amend paragraph (e) of Clause 13.4 (
Cost of Funds
) to provide that if a Lender does not supply a quotation by the given time period in paragraph (a)(ii), the rate of interest for that Lender will be the weighted average of the quotations notified to the Facility Agent by the other Lenders.
|
30.
|
US Regulations
:
|
(a)
|
Add a new definition of Regulation U in Clause 1.1 (
Definitions
) as follows:
|
(b)
|
Replace Clause 18.17 (
United States Regulation
) with the following:
|
(c)
|
Delete Clause 18.19 (
Margin stock
) and replace it with the following:
|
31.
|
Amendments and Waivers
:
|
32.
|
Guarantees
: amend Clause 21.13 (
Loans and Guarantees
) to:
|
(a)
|
add the words “in respect of Financial Indebtedness only” after the words “no member of the Group will make any loans, grant any credit or give any guarantee”;
|
(b)
|
add a new paragraph as a carve out as follows:
|
(c)
|
delete “€100,000,000” and replace it with “€150,000,000” and delete “2%” and replace it with “3%” at Clause 21.13(bb) (
Loans and Guarantees
);
|
(d)
|
amend paragraph (g) to include an additional limb (v) as follows:
|
“(v)
|
by an Obligor in respect of the liabilities of any other member of the Group which is not an Obligor provided that that other member of the Group must become an Additional Guarantor in accordance with Clause 29.10 (
Additional Guarantors
) within 30 days of the granting of the guarantee made pursuant to this paragraph (v);”
|
(e)
|
amend paragraph (z) to delete “€10,000,000” and replace it with “€25,000,000”; and
|
(f)
|
to include additional limbs as follows:
|
(i)
|
“any loans or guarantees relating to Excess Capacity Network Services provided that the price payable to 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 Group in providing such Excess Capacity Network Services;”; and
|
(ii)
|
“any guarantees or similar undertakings granted by any member of the Group in favour of any tax authority in respect of any obligations of a member of the Group in respect of tax in order to facilitate the winding up of any member of the Group provided that the Facility Agent shall have first received confirmation from the Company that based on discussions with such tax authority and the Company’s reasonable assumptions, the Company does not believe that the liability under such guarantee will exceed €15,000,000 (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);”
|
33.
|
Spin Parent
: delete the following sentence in paragraph (b) of Clause 10.2 (
Mandatory Prepayment – Change of Control
):
|
34.
|
Reporting
:
|
(a)
|
Delete the definition of GAAP in Clause 1.1 (
Definitions
) and replace it with the following:
|
(b)
|
Delete the definition of IFRS in Clause 1.1 (
Definitions
) and replace it with the following:
|
(c)
|
Delete Clause 19.5 (
Change in Accounting Principles
) in its entirety and replace it with the following:
|
“(a)
|
Except as otherwise expressly provided below or in this Agreement, all ratios and calculations based on IFRS contained in this Agreement shall be computed in conformity with IFRS.
|
(b)
|
At any time after the OFS Date, the Company may elect to apply for all purposes of this Agreement, in lieu of IFRS, GAAP and, upon such election, references to IFRS herein will be construed to mean GAAP;
provided
that:
|
(i)
|
all financial statements and reports to be provided, after such election, pursuant to this Agreement shall be prepared on the basis of GAAP as in effect from time to time (including that, upon first reporting its financial year results under GAAP, the financial statements of the Reporting Entity shall be restated on the basis of GAAP for the year ending immediately prior to the first financial year for which financial statements have been prepared on the basis of GAAP); and
|
(ii)
|
from and after such election, all ratios, computations and other determinations based on GAAP contained in this Agreement shall, at the Company’s option:
|
(A)
|
continue to be computed in conformity with GAAP (
provided
that, following such election, the annual and quarterly information required by paragraphs (a)(i) and (a)(ii) of Clause 19.1 (
Financial Statements
) shall include a
|
(B)
|
be computed in conformity with GAAP with retroactive effect being given thereto assuming that such election had been made on the OFS Date, subject to any further election in accordance with the definition of GAAP.
|
(d)
|
Amend paragraphs (a)(i) and (a)(ii) of Clause 19.1 (
Financial Statements
) to provide that the relevant financial statements or accounts (as applicable) shall be prepared in accordance with IFRS.
|
35.
|
Business Division Transactions and Joint Ventures
:
|
(a)
|
In Clause 1.1 (
Definitions
):
|
(i)
|
amend the definition of “Business Division Transaction” to delete the words “, in each case, where such transaction has the prior approval of the Majority Lenders”; and
|
(ii)
|
add the following new definitions:
|
(b)
|
Amend the definition of Permitted Payments and Clause 21.13 (
Loans and Guarantees
) to include the following additional carve outs in each such clause:
|
(i)
|
“in relation to any Permitted Business Division Transaction; and
|
(ii)
|
in relation to any Acceptable Joint Venture.”
|
(c)
|
Amend paragraph (m) of the definition of Permitted Disposal and paragraph (s)(iv) of the definition of Permitted Payment such that the word “Permitted” is added before the words “Business Division Transaction”.
|
36.
|
Permitted Security Interest
: amend the definition of “Permitted Security Interest” in Clause 1.1 (
Definitions
):
|
(a)
|
to include in addition to the existing “Permitted Security Interests”:
|
(b)
|
include the following additional limb:
|
37.
|
Permitted Acquisitions and Permitted Joint Ventures
: delete sub-paragraph (e)(iii) of the definition of Permitted Acquisition in Clause 1.1 (
Definitions
) and delete sub-paragraph (b)(ii) of the definition of Permitted Joint Venture in Clause 1.1 (
Definitions
).
|
38.
|
Auditors
: delete the definition of “Auditors” in Clause 1.1 (
Definitions
) and replace it with the following:
|
39.
|
Additional Facilities
: amend paragraph (g) and sub-paragraph (g)(i) of Clause 2.2 (
Telenet Additional Facility
) to read as follows:
|
“(g)
|
Subject to paragraph (h) below, the aggregate principal amount of any proposed Telenet Additional Facility shall not, at the election of the Company acting in its sole discretion (x) on the date that the Telenet Additional Facility becomes effective (giving pro forma effect to the intended use of proceeds of such Telenet Additional Facility and assuming that the entire amount of that Telenet Additional Facility is drawn on such date, and provided that an election that this sub-paragraph (x) shall apply may not be made in relation to that Telenet Additional Facility if an election that sub-paragraph (y) shall apply has previously been made in relation to that Telenet Additional Facility) or (y) on the date of each Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)) of that Telenet Additional Facility (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that Telenet Additional Facility is drawn) exceed the aggregate of the sum of:
|
(i)
|
an unlimited amount provided that on a pro forma basis Net Senior Debt to Consolidated Annualised EBITDA is equal to or less than 4.50:1;
|
40.
|
Construction
:
|
(a)
|
Amend Clause 1.2(a) (
Construction
) to add the following additional limbs:
|
(i)
|
“
fair market value
” unless otherwise specified, wherever such term is used in this Agreement, may be conclusively established by means of an officer’s certificate or a resolution of the board of directors of the Company, any Permitted Affiliate Parent or any Affiliate Subsidiary setting out such fair
|
(ii)
|
any matter being “
permitted
” under this Agreement or any other Finance Document shall include references to such matters not being prohibited or otherwise being approved under this Agreement or any other such Finance Document; and
|
(iii)
|
“
consolidated
” in connection with the financial position of, financial statements of or accounts of or financial definitions in relation to, the Group shall be construed to mean that the accounts of any Affiliate Subsidiary shall be combined for the purpose of determining such financial position, financial statements, accounts or financial definitions.
|
(b)
|
Amend Clause 1.2 (
Construction
) to add the following additional paragraphs:
|
“(x)
|
No personal liability shall attach to any director, officer or employee of any member of the Wider Group or Group for any representation or statement made by that member of the Wider Group or Group (as applicable) in a certificate signed by such director, officer or employee; and
|
(y)
|
No Default, Event of Default or breach of any representation and warranty or undertaking under the Finance Documents shall arise merely as a result of a subsequent change in the Euro equivalent of any relevant amount due to fluctuations in exchange rates.”
|
(c)
|
Amend Clause 1.2 (
Construction
) to include the following wording at the start of sub-paragraph (a)(xvii)(C) of Clause 1.2 (
Construction
):
|
(d)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(e)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(f)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(g)
|
Amend Clause 1.2 (
Construction
) to delete limb (v) of paragraph (a) and replace it with the following:
|
(h)
|
Amend Clause 1.2 (
Construction
) to delete limb (viii) of paragraph (a) and replace it with the following:
|
(i)
|
Amend Clause 1.2 (
Construction
) to include an additional limb of Clause 1.2 as follows:
|
(j)
|
Amend Clause 1.2 (
Construction
) to include an additional limb of Clause 1.2 as follows:
|
“(a)
|
This Agreement is entered into subject to, and with the benefit of, the terms of the Intercreditor Agreement.
|
(b)
|
Notwithstanding anything to the contrary in this Agreement, the terms of the Intercreditor Agreement will prevail if there is a conflict between the terms of this Agreement and the terms of the Intercreditor Agreement.”
|
(k)
|
Where relevant in the Credit Agreement, amend references to “company” or “entity” to “person” in accordance with paragraph (a)(vii) of Clause 1.2 (
Construction
).
|
41.
|
Increase
: amend Clause 2.1 (
Increase
) to:
|
(a)
|
delete sub-paragraphs (a)(i) and (a)(ii); and
|
(b)
|
delete sub-paragraph (a)(iii) and replace it with the following:
|
“(iii)
|
at the election of the Company acting in its sole discretion, it shall be a condition:
|
(A)
|
that the aggregate principal amount of any proposed increase in the Commitments shall not exceed,
mutatis mutandis
, the Additional Facilities Cap on the date that such increase in the Commitments becomes effective (giving pro forma effect to the intended use of proceeds of such increased Commitment and assuming that the entire amount of that increased Commitment is drawn on such date, and provided that an election that this paragraph (A) shall apply may not be made in relation to that increased Commitment if an election that paragraph (B) shall apply has previously been made in relation to that increased Commitment); or
|
(B)
|
to any Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)) of that increased Commitment that the aggregate principal amount of that increased Commitment to be drawn would not exceed,
mutatis mutandis
, the Additional Facilities Cap on the date of that Utilisation (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that increased Commitment is drawn); and”
|
42.
|
Increased Costs
:
|
(a)
|
Amend the first paragraph of Clause 14.1 (
Increased Costs
) to add “within ten Business Days of demand by the Facility Agent,” after “the Company must” in the first line.
|
(b)
|
Delete paragraph (a) of Clause 14.3 (
Claims
) and replace it with the following:
|
“(a)
|
A Finance Party intending to make a claim pursuant to Clause 14.1 (
Increased Costs
) shall, as soon as is reasonably practicable after that Finance Party becomes aware that circumstances have arisen which entitle it to make such claim, notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.”
|
43.
|
Springing Financial Covenant
: amend the covenant set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) so that is reads as follows:
|
“(a)
|
Subject to Clause 22.5 (
Cross-default and Cross-acceleration
), in the event that on the last day of a Measurement Period the aggregate of the Telenet Additional Facility Outstandings under any Revolving Facility (in each case, other than Documentary Credits that are cash collateralised or undrawn) and the net indebtedness outstanding under each Ancillary Facility less Cash of the Group exceeds an amount equal to 40 per cent. of the aggregate of the Revolving Facility Commitments and each Ancillary Facility Commitment (the “
Financial Ratio Test Condition
”), the Company shall procure that the ratio of Net Total Debt to Consolidated Annualised EBITDA on that day (the “
Financial Ratio
”) shall not exceed 6.00:1 unless otherwise agreed in writing by the Composite Revolving Facility Instructing Group and the Company.
|
(b)
|
If the financial covenant set out in paragraph (a) has been breached for a Measurement Period but is complied with on the last day of the next Measurement Period (either because the Financial Ratio Test Condition is not met for that next Measurement Period or because the Financial Ratio does not exceed 6.00:1 for that next Measurement Period), then, the prior breach of such financial covenant or any Event of Default arising therefrom shall not (or shall be deemed to not) directly or indirectly constitute, or result in, a breach of any representation, warranty, undertaking or other term in the Finance Documents or a Default or an Event of Default unless the Facility Agent has taken any action under Clause 22.18 (
Maintenance Covenant Revolving Facility Acceleration
) before the delivery of the certificate referred to at Clause 19.3(a) (
Compliance Certificate
) in respect of that next Measurement Period.”
|
44.
|
Financial Information:
amend paragraph (a) of Clause 19.3 (
Compliance Certificate
) so that it reads as follows:
|
“(a)
|
The Company must supply to the Facility Agent a Compliance Certificate with each set of its financial statements sent to the Facility Agent under this Agreement if, as at the last day of the Measurement Period ending on the date of such financial statements, the Financial Ratio Test Condition is met.”
|
45.
|
Cure Provisions:
delete Clause 20.4 (
Cure Provisions
) and replace it with the following:
|
“
20.4
|
Cure Provisions
|
(a)
|
The Company may cure a breach of the financial ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) by procuring that:
|
(i)
|
additional equity is injected into, and/or additional Subordinated Shareholder Loans is provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been deducted from Net Total Debt for the Measurement Period in respect of which the breach arose, would have avoided the breach; or
|
(ii)
|
additional equity is injected into, and/or additional Subordinated Shareholder Loans is provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been added to Consolidated Annualised EBITDA for the Measurement Period in respect of which the breach arose, would have avoided the breach; or
|
(iii)
|
any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility are prepaid (from any source selected by the Company in its sole discretion) in an amount which if such prepayment had occurred immediately prior to the calculation on the last day of the Measurement Period in respect of which the breach arose, the Financial Ratio Test Condition as at the last day of that Measurement Period would not have been met and therefore the financial ratio would not have been required to be tested.
|
(b)
|
A cure under this Clause 20.4 will not be effective unless:
|
(i)
|
in the case of paragraph (a)(i) or (a)(ii) above, an amount equal to or greater than the required amount of additional equity or the proceeds of any Subordinated Shareholder Loans is received by one or more members of the Group; or
|
(ii)
|
in the case of paragraph (a)(iii) above, the amount of any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility that are required to be prepaid are so prepaid,
|
(c)
|
No cure may be made under this Clause 20.4 (
Cure Provisions
)
|
(i)
|
in respect of more than five Measurement Periods during the life of the Telenet Additional Facilities; or
|
(ii)
|
in respect of consecutive Measurement Periods.
|
(d)
|
The Company shall make an election (at its sole discretion) by notice to the Facility Agent prior to the end of the Cure Period as to whether a breach of the financial ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) shall be
|
(e)
|
If the Company makes an election for a recalculation as described in sub-paragraphs (a)(i) or (a)(ii) above, it shall be under no obligation to apply the amount of additional equity or the proceeds of any Subordinated Shareholder Loans that are received by one or more members of the Group in prepayment of the Facilities or for any other specific purpose and such amount will be deemed to be deducted from Net Total Debt or added to Consolidated Annualised EBITDA for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) (as applicable) as at the last day of the relevant Measurement Period.
|
(f)
|
If the Company makes an election for a recalculation as described in sub-paragraph (a)(iii) above, the amount of any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility that are prepaid shall be deemed to be deducted in the calculation of the Financial Ratio Test Condition for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) as at the last day of the relevant Measurement Period.
|
(g)
|
For the purpose of ascertaining compliance with Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
), the Financial Ratio Test Condition and the ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) will be tested or retested, as applicable, giving effect to the elections and adjustments referred to in paragraph (d), (e) and (f) above. If, after giving effect to such elections and adjustments, the requirements of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) are met, then the requirements under Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) shall be deemed to have been satisfied as at the relevant original date of determination.
|
(h)
|
Where a cure is exercised under this Clause 20.4 in respect of a breach of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) for any financial quarter and the Company makes an election for a recalculation as described in sub-paragraph (a)(ii) above, the amount of additional equity or the proceeds of any Subordinated Shareholder Loans that are received by one or more members of the Group shall also be added in calculating Consolidated EBITDA for any future Measurement Period that includes such financial quarter. Any adjustments pursuant to this paragraph will not be treated as a separate cure.”
|
46.
|
Permitted Disposal:
amend the definition of Permitted Disposal to add a new limb as follows:
|
47.
|
Permitted Financial Indebtedness
:
|
(a)
|
Amend Clause 21.7 (
Financial Indebtedness
) to add a new paragraph (d) as follows:
|
(b)
|
Amend the definitions of “Senior Debt” and “Total Debt” in Clause 1.1 (
Definitions
) to include an additional limb as follows:
|
48.
|
Related Fund
: amend:
|
(a)
|
Clause 1.1 (
Definitions
) to include a new definition of “Related Fund” as follows:
|
(b)
|
Clause 29.3 (
Transfers by Lenders
) at paragraph (c), to add the words “or, if applicable, a Related Fund” after the words “an Affiliate”.
|
49.
|
Share Capital
:
|
(a)
|
Amend Clause 21.16 (
Share Capital
) to add a new sub-paragraph (i) at the end as follows: “relates to the cancellation of the share capital of any member of the Group or any Obligor”.
|
(b)
|
Amend Clause 21.16 (
Share Capital
) to add the words “or a solvent liquidation under Clause 21.23 (
Internal Reorganisation
)” after the words “Clause 21.9(b)(iii) (
Acquisitions and Mergers
)”.
|
50.
|
Stamp Taxes
: delete Clause 12.7 (
Stamp Taxes
) in its entirety and replace it with the following:
|
(a)
|
any such Tax liabilities payable in connection with any Transfer Certificate or other document relating to the assignment or transfer by any Lender of any of its rights and/or obligations under any Finance Document; or
|
(b)
|
any registration duties and any Tax liability payable due to a registration, submission or filing by a Finance Party of any Finance Document where such registration, submission or filing is or was not required to maintain or preserve the rights of that Finance Party under the applicable Finance Documents.”
|
51.
|
Increased Costs
: Amend Clause 14.2 (
Exceptions
) to include the following additional limbs:
|
“(i)
|
attributable to a change (whether of basis, timing or otherwise) in the Tax liability on the overall net income of the Finance Party (or any Affiliate of it) or of the branch or office through which it lends any Advance;
|
(j)
|
attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority upon the Finance Party (or any Affiliate of it) by virtue of its having exceeded any country or sector borrowing limits or breached any directives imposed upon it;
|
(k)
|
attributable to a breach of a Finance Document by the Finance Party claiming such Increased Cost.”
|
52.
|
Representations
:
|
(a)
|
Delete Clause 18.12 (
Security Interests
) in its entirety.
|
(b)
|
Delete paragraph (b) of Clause 18.6 (
No Event of Default
).
|
(c)
|
Amend paragraph (a) of Clause 18.7 (
Authorisations
) to include the words “(other than the Licences)” after the word “licenses”.
|
(d)
|
Amend paragraph (b) of Clause 18.10 (
Litigation and Insolvency Proceedings
) to replace the words “member of the Group” with the words “Obligor or Material Subsidiary”.
|
(e)
|
Amend Clause 18.18 (
Anti-Terrorism Laws
) to delete the words “It and each of its Affiliates have taken commercially reasonable measures to ensure compliance with the Anti-Terrorism Laws” and to replace them with “It has taken
|
53.
|
Defaulting Lender Disenfranchisement
: in addition to paragraph 10 of Schedule 4, provide in the Credit Agreement as follows:
|
54.
|
Consolidated EBITDA
:
|
(a)
|
Amend paragraph (y) of the definition of Consolidated EBITDA in order that the following words are deleted:
|
(i)
|
are not included in the Company’s externally reported operating cash flow or equivalent measure; or
|
(ii)
|
are deemed to be exception of unusual items”.
|
(b)
|
Amend paragraph (g) of the definition of Consolidated EBITDA to add the words “or other equity based” after the words “any stock based”.
|
55.
|
80% Security Test:
add the following words at the end of the definition of 80% Security Test in Clause 1.1 (
Definitions
):
|
56.
|
Insolvency Event:
amend the definition of Insolvency Event in Clause 1.1 (
Definitions
) to replace the words “in relation to a Finance Party means that the Finance Party:” with the words “in relation to a Finance Party means that the Finance Party or a Holding Company of it (as applicable):”.
|
57.
|
Notes Refinancing:
amend the definitions of Senior Secured Notes Refinancing and Senior Unsecured Refinancing in Clause 1.1 (
Definitions
) to delete the word “reasonable” before the words “fees, costs and expenses”.
|
58.
|
Optional Currency:
amend the definition of “Optional Currency” in Clause 1.1 (
Definitions
) in order that the words “in relation to that Advance” are included after the words “acting on the instructions of all the Lenders”.
|
59.
|
Permitted Acquisition:
amend the definition of Permitted Acquisition in Clause 1.1 (
Definitions
):
|
(a)
|
at paragraph (d) to replace the words “less than a 50 per cent. interest” with the words “an interest of 50 per cent. or less”; and
|
(b)
|
at paragraph (j) to replace the words “10 Business Days” with the words “60 days”.
|
60.
|
Finance Document:
|
(a)
|
Amend the definition of “Finance Document” in Clause 1.1 (
Definitions
) to delete the words “a Transfer Certificate;” and include the words “any Increase Confirmation;”.
|
(b)
|
Amend the definition of “Finance Document” in Clause 1.1 (
Definitions
) to include the following wording at the end of the definition:
|
61.
|
Finance Party:
amend the definition of “Finance Party” in Clause 1.1 (
Definitions
) to include the following wording at the end of the definition:
|
62.
|
Term of Advance
: add a new clause 1.4 as follows:
|
63.
|
Exchange Rates:
add a new clause 1.5 as follows:
|
64.
|
Increase
: amend paragraph (b) of Clause 2.1 (
Increase
) to add a new limb (iii) as follows:
|
65.
|
Additional Facility
: amend paragraph (h) of Clause 2.2 (
Telenet
Additional Facility
) to:
|
(a)
|
delete sub-paragraphs (h)(ii)(A), (h)(ii)(B) and (h)(ii)(C); and
|
(b)
|
delete sub-paragraphs (h)(iii)(B), (h)(iii)(C) and (h)(iii)(D).
|
66.
|
Prepayments
: amend Clause 10.10 (
Miscellaneous Provisions
) to delete paragraph (g) and replace it with the following:
|
67.
|
Tax Indemnity
: amend paragraph (b)(ii) of Clause 12.4 (
Tax Indemnity
) to add an additional limb as follows:
|
68.
|
Representations:
amend Clause 18 (
Representations and Warranties
) by inserting the word “substantially” after the word “business” at Clause 18.2(b) (
Status
).
|
69.
|
Share Capital:
amend Clause 21.16 (
Share Capital
) to add words “that is a member of the Group” after the words “Each Obligor” and before the words “will not”.
|
70.
|
Obligor Accession:
amend Clause 21.22 (
Further Assurances
) in order that the words “10 Business Days” at paragraph (b)(i) are replaced with “60 days”.
|
71.
|
Breach of obligations EOD
: amend Clause 22.3(a) (
Breach of Other Obligations
) to add the following language at the end:
|
72.
|
Cross Default EOD
: amend Clause 22.5 (
Cross-default and Cross-acceleration
):
|
(a)
|
by deleting the words “is placed on demand;” at paragraph (b)(ii);
|
(b)
|
by deleting limb (c);
|
(c)
|
at paragraph (d)(v), by deleting the words “is not placed on demand, becomes” and replacing them with the words “does not become” and adding the word “not” before the words “otherwise accelerated during that period”; and
|
(d)
|
by adding the following additional limb to paragraph (d):
|
73.
|
Defaulting Lenders
: amend Clause 29.3 (
Transfers by Lenders
) in order that the following is included as a new Clause 29.3(h):
|
“(h)
|
Notwithstanding any other provision of this Agreement, no Lender shall be entitled to assign or transfer any of its rights, benefits or obligations under the Finance Documents to a New Lender that is a Defaulting Lender.”
|
74.
|
Amendments
: add a new paragraph (d) to Clause 28.2 (
Exceptions
) as follows:
|
75.
|
Measurement Period:
delete the definition of Measurement Period and replace it with the following:
|
76.
|
Consolidated Annualised EBITDA
: delete the definition of “Consolidated Annualised EBITDA” in Clause 1.1 (
Definitions
) and replace it with the following:
|
77.
|
Telenet Additional Facility:
|
(a)
|
Amend paragraph (h) of Clause 2.2 (
Telenet Additional Facility
) and paragraphs (a) and (b) of Clause 2.3 (
Overall Facility Limits
) to amend each reference from “Advances” and “advances” to “Utilisations”.
|
(b)
|
Amend limb (ii)(D) and (iii)(E) of paragraph (h) of Clause 2.2 (
Telenet Additional Facility
) to delete the word “reasonable” before the word “fees”.
|
(c)
|
Add an additional limb to Clause 2.2 (
Telenet Additional Facility
) as follows:
|
78.
|
Amount of Advance
: amend paragraph (b) of Clause 5.3 (
Amount of Advance or Documentary Credit
) to include the words “under that Facility” after the words “on behalf of the Lenders”.
|
79.
|
Revaluation of Documentary Credits:
|
(a)
|
Amend paragraph (a) of Clause 6.4 (
Revaluation of Documentary Credits
) to replace the words “at six monthly intervals after the date of the Documentary Credit” with the words “on the last Business Day of each financial year”.
|
(b)
|
Amend paragraph (b) of Clause 6.4 (
Revaluation of Documentary Credits
) to replace the words “three Business Days” with the words “ten Business Days”.
|
80.
|
Affiliates of Borrowers:
amend paragraph (c) of Clause 7.7 (
Affiliates of Borrowers
) to include the words “, provided that such Affiliate is not an Affiliate of any other Obligor, ” after the words “its Affiliate”.
|
81.
|
Right
of Repayment and Cancellation of a Single Lender:
amend paragraph (a)(iii) of Clause 10.8 (
Right of Repayment and Cancellation of a Single Lender
) to include the words “or Clause 15 (
Illegality and Mitigation
)” after the words “Clause 10.1 (
Mandatory Prepayment – Illegality
)” and to replace the reference to “or” before the reference to “Clause 10.1” with a comma.
|
82.
|
Selection:
|
(a)
|
Amend paragraph (d)(ii) of Clause 11.5 (
Selection – Term Facility
) to replace the word “Facility” with “Term Facility Advance” throughout such paragraph and to replace the words “Lenders whose commitments under the relevant Facility then aggregate two thirds or more of the aggregate Commitments under that Facility” with “Majority Lenders under the relevant Facility”.
|
(b)
|
Amend paragraph (c) of Clause 11.6 (
Selection – Revolving Facility
) to replace the words “under that Revolving Facility” with “under the relevant Advance under that Revolving Facility” throughout such paragraph and to replace the
|
83.
|
Payments:
amend Clause 16.4 (
Currency
) to include the following additional limbs and to re-number limb (c) to limb (e):
|
“(c)
|
A repayment or prepayment of an Advance is payable in the currency in which the Advance is denominated.
|
(d)
|
All interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated.”
|
84.
|
Information
: amend Clause 19.4 (
Information – Miscellaneous
) to delete paragraph (c) in its entirety.
|
85.
|
Change of Business
: delete Clause 21.8 (
Change of Business
) and replace it with the following:
|
86.
|
Acquisitions:
amend paragraph (b)(iii)(B) of Clause 21.9 (
Acquisitions and Mergers
) to replace the words “for the period commencing on the date of merger and ending on the earlier of the date that falls 3 years from the date of merger and the longest dated Final Maturity Date” with “on a pro forma basis following such merger or consolidation.”
|
87.
|
Insurance:
amend Clause 21.12 (
Insurance
) to delete the words “procure that each member of the Group will” and replace them with “procure that each of its Material Subsidiaries which is a member of the Group will”.
|
88.
|
Shareholder Loans:
amend paragraph (a) of Clause 21.14 (
Shareholder Loans
) to replace the words “30 days” with “60 days”.
|
89.
|
Share Security:
|
(a)
|
delete Clause 21.17 (
Share security
) and replace it with the following:
|
(a)
|
notwithstanding paragraph (b) below, an Obligor may issue shares to any person other than a member of the Group and shall not be required to procure that such shares are charged or pledged in favour of the Beneficiaries, provided that such share issue does not result in a Change of Control;
|
(b)
|
any member of the Group may issue shares to or otherwise acquire additional rights from any other member of the Group so long as (if any of the existing
|
(c)
|
the Company may issue shares to Telenet Group BVBA provided that such shares are charged or pledged in favour of the Beneficiaries pursuant to the terms of a Security Document and there are delivered at the same time to the Security Agent the relevant share certificates and blank stock transfer forms (or equivalent documents) in respect thereof together with such other documents and evidence and legal opinions as the Security Agent may reasonably require;
|
(d)
|
any member of the Group may issue shares pursuant to the exercise of Approved Stock Options;
|
(e)
|
a member of the Group may issue shares as part of an Acquisition or merger or consolidation permitted by Clause 21.9 (
Acquisitions and Mergers
), provided that the issue of such shares does not cause a Change of Control;
|
(f)
|
a member of the Group (other than an Obligor) may issue shares to all the holders of the share capital of such member of the Group
pro rata
to their interests in such share capital provided that, if any existing shares in that member of the Group are charged or pledged in favour of any Beneficiary under any Security Document, upon issue the shares that are issued to any other member of the Group are charged or pledged in favour of the Beneficiaries as provided in paragraph (b) above; and
|
(g)
|
any member of the Group (other than the Company) may issue shares to any person pursuant to any agreement or other legally binding arrangement existing, and disclosed to the Facility Agent in writing, on or before the Signing Date, provided that such share issue does not result in a Change of Control.”
|
(b)
|
Add the following additional definition to Clause 1.1 (
Definitions
):
|
90.
|
Group Redesignation:
delete Clause 21.25 (
Group Redesignation
) and replace it with the following:
|
91.
|
Clean Up Period:
|
(a)
|
Amend the definition of Clean Up Period in Clause 22.3 (
Breach of Other Obligations
) to replace the words “120 days” with the words “180 days”.
|
(b)
|
Delete the words “(other than Clause 22.3(a) (
Breach of Other Obligations
) to the extent it refers to Clause 20 (
Financial Covenant
))” in paragraph (c) of Clause 22.3 (
Breach of Other Obligations
).
|
92.
|
Intercreditor Agreement:
amend paragraph (a) of Clause 22.12 (
Intercreditor Agreement
) to include the word “material” before the word “obligations”.
|
93.
|
Acceleration:
amend Clause 22.17 (
Acceleration
) to replace the words “may, and must if so instructed by the Majority Lenders” with the words “the Facility Agent shall, if the Majority Lenders so direct”.
|
94.
|
Indemnity:
|
(a)
|
Amend paragraph (a) of Clause 26.1 (
Currency Indemnity
) to include the words “, within 10 Business Days of demand” after the words “Obligor must”.
|
(b)
|
Amend paragraph (a)(i) of Clause 26.2 (
Other Indemnities
) to replace the word “Default” with the words “Event of Default”.
|
(c)
|
Amend paragraph (a) of Clause 26.3 (
Break Costs
) to include the words “, within ten Business Days of demand by a Lender, ” after the words “Each Borrower must”.
|
(d)
|
Amend paragraph (b) of Clause 26.3 (
Break Costs
) to include the words “, as soon as reasonably practicable after a demand by the Facility Agent, ” after the words “Each Lender must”.
|
95.
|
Amendments and waivers:
|
(a)
|
Amend Clause 28.2 (
Exceptions
) to add an additional limb (d) as follows:
|
“(d)
|
Notwithstanding any other provision of this Clause 28 (
Amendments and Waivers
), the Facility Agent may at any time without the consent or sanction 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:
|
(i)
|
would not be materially 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;
|
(ii)
|
relates to the increase in the principal amount of a Commitment of a Lender in relation to any Facility and such increased Commitment has been requested by the Company to fund any original issue discount required to be paid to that Lender in relation to that Facility under any Finance Document;
|
(iii)
|
is of a minor, operational or technical nature; or
|
(iv)
|
which relates to the implementation of any alternative basis for the calculation of interest that is binding on all Parties in accordance with paragraph (c) of Clause 13.4 (
Cost of Funds
).
|
(b)
|
Amend Clause 28.2 (
Exceptions
) to include the words “Subject to Clause 28.6 (
Structural Adjustments
) below,” at the beginning of paragraph (a).
|
(c)
|
Amend paragraph (a) of Clause 28.3 (
Non Consenting Lenders
) to delete limb (iii) in its entirety.
|
(d)
|
Add an additional provision to Clause 28.2 (
Exceptions
) as follows:
|
96.
|
Changes to the Parties:
|
(a)
|
Amend Clause 29.2 (
Assignment or Transfers by Obligors
) to include the words “except to the extent permitted by this Agreement” at the end of the paragraph.
|
(b)
|
Amend paragraph (a) of Clause 29.9 (
Additional Borrowers
) to delete the words “(following consultation with the Facility Agent)”.
|
(c)
|
Amend paragraph (b) of Clause 29.9 (
Additional Borrowers
) to include the words “under the relevant Facility” after the words “all the Lenders”.
|
(d)
|
Amend paragraph (b)(ii) of Clause 29.11 (
Resignation of an Obligor (other than the Company
) to replace the words “a Default” with the words “an Event of Default”.
|
97.
|
Governing law:
|
(a)
|
Delete Clause 38 (
Governing law
) and replace it with the following:
|
(b)
|
Amend the governing law provisions of the schedules to the Credit Agreement to refer to “non-contractual obligations” in conformity with paragraph (a) above.
|
98.
|
Order of Application:
amend Clause 10.4 (
Order of application
) by deleting sub-paragraph (e).
|
99.
|
Affiliate
: amend the definition of Affiliate in Clause 1.1 (
Definitions
) such that it reads as follows:
|
(a)
|
an Affiliate of the Company that issues any notes, bonds or other securities for the purpose of on-lending the proceeds of such issuances under a Facility and to a Borrower under this Agreement and which acts in accordance with the terms of any indentures or other documents governing such issuances (a “
Designated Notes Issuer
”) shall not be an Affiliate of the Company or any of its Affiliates; and
|
100.
|
Change of L/C Bank:
add the words “in relation to the Facility in respect of which such Documentary Credits are issued” after the words “Majority Lenders” in paragraph (c) of Clause 6.11 (
Appointment and Change of L/C Bank)
.
|
101.
|
Restricted Person:
amend the definition of Restricted Person in Clause 1.1 (
Definitions
) such that it reads as follows:
|
102.
|
Permitted Affiliate Group Designation:
amend limb (iv)(c) of Clause 29.8 (
Permitted Affiliate Group Designation
) to include the words “if available,” at the start of the limb.
|
103.
|
Permitted Payment
: add a new limb to the definition of Permitted Payment in Clause 1.1 (
Definitions
) as follows:
|
To:
|
The Bank of Nova Scotia as Facility Agent and KBC Bank NV as Security Agent
|
From:
|
The Telenet Additional Facility AK-B Lender
|
1.
|
In this Agreement:
|
2.
|
Unless otherwise defined in this Agreement, terms defined in the Credit Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the Credit Agreement. The principles of construction set out in Clause 1.2 (
Construction
) of the Credit Agreement apply to this Agreement as though they were set out in full in this Agreement.
|
3.
|
We refer to Clause 2.2 (
Telenet Additional Facility
) of the Credit Agreement. This is a Finance Document.
|
4.
|
This Agreement will take effect on the date on which the Facility Agent notifies the Borrower and the Telenet Additional Facility AK-B Lender that it has received the documents and evidence set out in Schedule 2 to this Agreement, in each case in form and substance satisfactory to it (acting reasonably) or, as the case may be, the requirement to provide any of such documents or evidence has been waived by the Facility Agent (acting on the instructions of the Telenet Additional Facility AK-B Lender) (the “
Effective Date
”). The Facility Agent must give this notification to the Borrower and the Telenet Additional Facility AK-B Lender promptly upon being so satisfied.
|
5.
|
The Telenet Additional Facility AK-B Lender agrees:
|
(a)
|
to become party to and to be bound by the terms of the Credit Agreement as a Lender in accordance with Clause 2.2 (
Telenet Additional Facility
) of the Credit Agreement; and
|
(b)
|
to become party to the Intercreditor Agreement as a Senior Lender for the purposes of the Intercreditor Agreement and confirm that, as from the date of this Agreement, it intends to be party to the Intercreditor Agreement as a Senior Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
6.
|
The Telenet Additional Facility Commitment in relation to the Telenet Additional Facility AK-B Lender (for the purpose of the definition of Telenet Additional Facility Commitment in Clause 1.1 (
Definitions
) of the Credit Agreement) is its Term Loan AK-B Facility Commitment.
|
7.
|
The Facility Agent will, for the purposes of any determination to be made under the Credit Agreement or this Agreement (other than with respect to the Proposed Amendments in respect of which consent has been given in accordance with Clauses 25 and 26 hereof), apply the votes of the Telenet Additional Facility AK-B Lender in accordance with a written direction to be provided by the Telenet Additional Facility AK-B Lender. The Telenet Additional Facility AK-B Lender agrees that it will give any such direction in accordance with the provisions of Section
|
8.
|
The Term Loan AK-B Facility may be drawn by one Advance (subject to the provisions of Clause 9 below) on the Effective Date and such date will constitute the Availability Period for the Term Loan AK-B Facility. No more than one Request may be made in respect of the Term Loan AK-B Facility under the Credit Agreement, and such Request may only be in a principal amount of the Telenet Additional Facility Commitment in relation to the Term Loan AK-B Facility as set out in Clause 6 above.
|
(a)
|
Provided that any upsizing of the Term Loan AK-B Facility permitted under this Clause 9 will not breach any term of the Credit Agreement, the Term Loan AK-B Facility may be upsized by any amount, by the signing of one or more further Telenet Additional Facility AK-B Accession Agreements, that specify (along with the other terms specified therein) [
Insert Telenet BVBA or the name of any other entity incorporated under the laws of Belgium that has acceded to the Credit Agreement as a Borrower
] as sole Borrower and which specify Telenet Additional Facility Commitments denominated in euros, to be drawn in euros, with the same Final Maturity Date and Margin as specified in this Agreement.
|
(b)
|
For the purposes of this Clause 9 (unless otherwise specified), references to the Term Loan AK-B Facility shall include Advances made under any such further Telenet Additional Facility AK-B Accession Agreement.
|
(c)
|
Where any Term Loan AK-B Facility Loan has not already been consolidated with any other Term Loan AK-B Facility Loan, on the last day of any Term for such Term Loan AK-B Facility Loan, that Term Loan AK-B Facility Loan shall be consolidated with any other Term Loan AK-B Facility Loan which has a Term ending on the same day as that Term Loan AK-B Facility Loan and all such Term Loan AK-B Facility Loans will then be treated as one Advance.
|
10.
|
The Final Maturity Date in respect of the Term Loan AK-B Facility is 1 March 2028. Any outstanding Advance under the Term Loan AK-B Facility shall be repaid in full on the Final Maturity Date.
|
11.
|
The interest rate in relation to the Term Loan AK-B Facility will be a fixed rate of 3.500 per cent. per annum. Such interest rate will be calculated in accordance with Clause 11.1 (
Calculation of Interest
) of the Credit Agreement as being the sum of EURIBOR and the applicable Margin where in order to achieve the fixed rate referred to above, the applicable Margin will be:
|
(a)
|
3.500 per cent. per annum, calculated on the basis of a 365 day or 366 day year (as applicable) and payable for the actual number of days elapsed; minus
|
(b)
|
EURIBOR.
|
12.
|
The first Term to apply to the Term Loan AK-B Facility Loan will be a period equal to the period running from the first day following the end of the most recently completed Term with respect to which interest was paid under the Term Loan AK Facility Loan up to and excluding [
Insert date that is the last day of the Term for the Term Loan AK Facility Loan
] in order that the first Term under the Term Loan AK-B Facility Loan is aligned with the existing Term under the Term Loan AK Facility Loan. The Borrower agrees that each subsequent Term under the Term Loan AK-B Facility will be 6 months.
|
13.
|
Upon the occurrence of a mandatory prepayment of the Term Loan AK-B Facility following a Change of Control, as defined under Clause 10.2 (
Mandatory Prepayment – Change of Control
) of the Credit Agreement, the Borrower under the Term Loan AK-B Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AK-B Lender) an amount equal to 1 per cent. of the principal amount of the Term Loan AK-B Facility, plus accrued and unpaid interest to the due date of mandatory prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Telenet Additional Facility AK-B Lender) under the Term Loan AK-B Facility on the actual date of such mandatory prepayment.
|
14.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of any of the Term Loan AK-B Facility by the Borrower under Clause 10.5 (
Voluntary prepayment
) of the Credit Agreement (other than a voluntary prepayment complying with Clauses 17 or 18 below) in an amount not to exceed 10% of the original principal amount of the Term Loan AK-B Facility during each twelve-month period commencing on the date of this Agreement, the Borrower under the Term Loan AK-B Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AK-B Lender) an amount equal to 3.0% of the principal amount of the Term Loan AK-B Facility being prepaid, plus accrued and unpaid interest then due on the amount of the Term Loan AK-B Facility Loan prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower under the Term Loan AK-B Facility to the Facility Agent (for the account of the Telenet Additional Facility AK-B Lender) on the actual date of such prepayment. Prior to 1 December 2022, to the extent that during any twelve-month period commencing on the date of this Agreement, the principal amount of the Term Loan AK-B Facility prepaid in any one or more voluntary prepayments is greater than an amount equal to 10% of the original principal amount of the Term Loan AK-B Facility (any such amount, the “
Excess Early Redemption Proceeds
”), the Borrower will apply the Excess Early Redemption Proceeds to a voluntary prepayment of the Term Loan AK-B Facility as described in Clause 15 below.
|
15.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of any or all of the Term Loan AK-B Facility by the Borrower under the Term Loan AK-B Facility under Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement with any Excess Early Redemption Proceeds (other than a voluntary prepayment complying with Clauses 17 or 18 below), the Borrower under the Term Loan AK-B Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AK-B Lender) an amount equal to the Additional Amount (as defined below) (calculated as of a date no more than three Business Days prior to the date of the relevant prepayment notice), plus accrued and unpaid interest on the amount of the Term Loan AK-B Facility Loan prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower under the Term Loan AK-B Facility to the
|
(i)
|
“
Comparable German Bund Issue”
means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such prepayment date to 1 December 2022, and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to 1 December 2022; provided, however, that, if the period from such prepayment date to 1 December 2022 is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer, the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the period from such prepayment date to 1 December 2022 is less than one year, a fixed maturity of one year shall be used;
|
(ii)
|
“Comparable German Bund Price”
means, with respect to any relevant date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Telenet Additional Facility AK-B Lender obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations;
|
(iii)
|
“Reference German Bund Dealer”
means any dealer of German Bundesanleihe securities appointed by the Telenet Additional Facility AK-B Lender in good faith; and
|
(iv)
|
“Reference German Bund Dealer Quotations”
means, with respect to each Reference German Bund Dealer and any relevant date, the average as determined by the Telenet Additional Facility AK-B Lender in good faith of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Telenet Additional Facility AK-B Lender by such Reference German Bund Dealer at 3:30 p.m. Frankfurt am Main, Germany, time on a day no earlier than the third business day in Frankfurt preceding the relevant date.
|
16.
|
On or after 1 December 2022 upon the occurrence of a voluntary prepayment of any or all of the Term Loan AK-B Facility by the Borrower under the Term Loan AK-B Facility under Clause 10.5 (
Voluntary prepayment
) of the Credit Agreement (other than a voluntary prepayment complying with Clause 17 or 18 below), the Borrower under the Term Loan AK-B Facility agrees to pay to the Facility Agent (for the account of the Telenet Additional Facility AK-B Lender) an amount equal to the relevant percentages of the principal amount of the Term Loan AK-B Facility being prepaid as set forth in the table below on, plus accrued and unpaid interest then due on the amount of the Term Loan AK-B Facility prepaid to, the due date of prepayment, if prepaid during the twelve-month period beginning on 1 December of the years indicated below:
|
Year
|
Prepayment Price expressed as a percentage of the principal amount of the Term Loan AK-B Facility
|
|
|
2022
|
1.75%
|
2023
|
0.875%
|
2024
|
0.438%
|
2025 and thereafter
|
0.000%
|
17.
|
Notwithstanding Clauses 14, 15 and 16:
|
(a)
|
if the Telenet Additional Facility AK-B Lender purchases any Notes in connection with any tender offer or other offer to purchase for the Notes (a “
Tender Offer
”), the Borrower will prepay an aggregate principal amount of the Term Loan AK-B Facility, pro rata based on the aggregate principal amount of Notes tendered in such Tender Offer and at a prepayment price of par plus any premium paid or less any discount received by the Telenet Additional Facility AK-B Lender in connection with the purchase of the Notes in such Tender Offer, plus any accrued and unpaid interest to the due date of such prepayment; and
|
(b)
|
if following any Tender Offer, the Telenet Additional Facility AK-B Lender is entitled to, and elects to, redeem any remaining Notes at a price equal to the price paid to each
|
18.
|
At any time prior to 1 December 2022, upon the occurrence of any voluntary prepayment of the Term Loan AK-B Facility by the Borrower pursuant to Clause 10.5 (
Voluntary Prepayment
) of the Credit Agreement with the Net Cash Proceeds of one of more Equity Offerings (the “
Equity Offering Early Redemption Proceeds
”) in an amount of up to 40% of the Term Loan AK-B Facility Loan, the Borrower shall upon not less than 10 days nor more than 60 days’ notice make a payment to the Facility Agent (for the Account of the Telenet Additional Facility AK-B Lender) in an amount (the “
Equity Claw Prepayment Premium
”) equal to 3.500 per cent. of the principal amount of the Term Loan AK-B Facility prepaid, together with any amounts due to the Telenet Additional Facility AK-B Lender in respect of a Tax Deduction plus accrued interest then due on the amount of the Term Loan AK-B Facility prepaid to the due date of prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Telenet Additional Facility AK-B Lender) under the Term Loan AK-B Facility on the actual date of such prepayment provided that:
|
(a)
|
at least 50% of the principal amount of the Term Loan AK-B Facility remains outstanding immediately after any such prepayment; and
|
(b)
|
such prepayment is made not more than 180 days after the consummation of any Equity Offering.
|
(b)
|
is convertible or exchangeable for Financial Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of Telenet Group BVBA, the Borrower or a Subsidiary of Telenet Group BVBA); or
|
(c)
|
is redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of the date (a) of the stated maturity of the Term Loan AK-B Facility or (b) on which there are no amounts under the Term Loan AK-B Facility outstanding,
provided
that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock;
|
19.
|
On the Effective Date, the Telenet Additional Facility AK-B Lender will make to the Borrower a Term Loan AK-B Facility Loan in an amount equal to the Term Loan AK-B Facility Commitment by [●]
2
.
|
20.
|
The Borrower agrees that it will not request or require the transfer of all of the rights and obligations of the Telenet Additional Facility AK-B Lender (or cancel or reduce any of such Lender’s Commitments or repay or prepay the Term Loan AK-B Facility Loan) pursuant to Clause 10.8 (
Right of Repayment and Cancellation of a Single Lender
), Clause 10.9 (
Right of Cancellation in Relation to a Defaulting Lender
) or Clause 28.3 (
Non-Consenting Lenders
) of the Credit Agreement.
|
21.
|
On the first Utilisation Date in respect of the Term Loan AK-B Facility, the Borrower confirms, on behalf of itself and the Company confirms on behalf of itself and each other Obligor, that the representations and warranties set out in Clause 18 (
Representations and Warranties
) of the Credit Agreement (except for Clauses 18.5 (
Non –conflict
), 18.6 (
No Event of Default
), 18.7 (
Authorisations
), 18.9 (
No Material Adverse Change
), 18.10 (
Litigation and Insolvency Proceedings
), 18.11 (
Tax Liabilities
), 18.12 (
Security Interests
), 18.13 (
Intellectual Property Rights
), 18.14 (
Environmental Laws
), 18.15 (
Ownership of Assets
), 18.16 (
ERISA
), 18.17 (
United States Regulations
) and 18.18 (
Anti-Terrorism Laws
)) are true and correct in all material respects as if made at the first Utilisation Date in respect of the Term Loan AK-B Facility with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement.
|
22.
|
Each of the Guarantors confirms that its obligations under Clause 17 (
Guarantee and Indemnity
) of the Credit Agreement, and each of the Existing Security Providers confirms that the Security Interests created pursuant to the Security Documents and its obligations under the Finance Documents, shall continue unaffected and that such obligations extend to the Total Commitments as increased by the addition of the Term Loan AK-B Facility and that such obligations shall be owed to each Finance Party including the Telenet Additional Facility AK-B Lender.
|
(a)
|
transferring all of its rights, title and obligations under the Term Loan AK Facility to the Borrower pursuant to a transfer certificate executed by each of the Telenet Additional Facility AK Lender, the Borrower and the Facility Agent in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement;
|
(b)
|
cash settling with (or netting against) proceeds received (or payable) in respect of prepayment and cancellation of the Term Loan AK Facility Loan; and/or
|
23.
|
The Telenet Additional Facility AK-B Lender confirms to each Finance Party (unless such Finance Party is an Obligor) that:
|
(a)
|
it has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Credit Agreement and has not relied on any information provided to it by a Finance Party in connection with any Finance Document; and
|
(b)
|
it will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Credit Agreement or any Telenet Additional Facility Commitment is in force.
|
24.
|
In the event that the Term Loan AK-B Facility Loan is made by way of cash settlement, the proceeds shall be used by the Borrower for general corporate purposes.
|
25.
|
Subject to Clause 26 below and the provisions of the Indenture, for the purposes of any amendment or waiver, consent or other modification (including, with respect to any existing Default or Event of Default) that may be sought by the Company under the Credit Agreement or any other Finance Document on or after the date of this Agreement, the Telenet Additional Facility AK-B Lender hereby consents to:
|
(a)
|
any and all of the items set out in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement; and
|
(b)
|
any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made either to implement the changes envisaged in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications)
to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement or to conform any Finance Document to Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement; and/or
|
(c)
|
any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made to conform any Finance Document to any Liberty Global Reference Agreement (provided that any amendment, waiver, consent or modification to conform the Credit Agreement or any other Finance Document to any Liberty Global Reference Agreement referred to at paragraphs (vi) to (xi), (xiii) and (xiv) and in respect of the schedules in relation to covenants, events of default or definitions in the Liberty Global Reference Agreements referred to at paragraphs (ii), (iii) and (v) of that definition, shall be limited to those that are mechanical in nature unless specifically referenced in Schedule 4 (
Amendments, Waivers, Consents and Other Modifications
) to Schedule 10 (
Seventh Amendments, Waivers, Consents and Other Modifications
) of this Agreement and, in each case, any consequential amendments, waivers, consents or modifications),
|
26.
|
Following receipt of an amendment request from the Company and/or the Facility Agent in connection with all or any of the proposed amendments set out under Clause 25 above (the “
Requested Amendments
”), the Telenet Additional Facility AK-B Lender shall confirm whether, having regard to the relevant provisions of the Indenture, it is required to consent to the Requested Amendments. If the Telenet Additional Facility AK-B Lender is required to give such consent, it hereby acknowledges and agrees that the Facility Agent and/or the Security Agent may, but shall not be required to, send to the Telenet Additional Facility AK-B Lender any further formal amendment request in connection with all, or any of the Requested Amendments and the Facility Agent and/or the Security Agent shall be authorised to consent on behalf of the Telenet Additional Facility AK-B Lender, as a Lender under one or more Telenet Additional Facilities, to any such Requested Amendments (and the Facility Agent and/or the Security Agent shall be authorised to enter into any necessary documentation in connection with the same) and such consent shall be taken into account in calculating whether the Majority Lenders, or the relevant requisite Lenders, have consented to the relevant amendment, waiver or other modification to the Finance Documents in accordance with Clause 28 (
Amendments and Waivers
) of the Credit Agreement and Clause 28 (
Consents, Amendments and Override
) of the Intercreditor Agreement (as applicable), and any clause relating to amendments in any other Finance Document.
|
27.
|
The Telenet Additional Facility AK-B Lender hereby waives receipt of any fee in connection with the consent in Clause 26 above, notwithstanding that other consenting Lenders under the Credit Agreement may be paid a fee in consideration of such Lenders’ consent to any or all of the foregoing amendments, waivers or other modifications.
|
28.
|
The Telenet Additional Facility AK-B Lender and the Facility Agent agree to waive the notice period in respect of drawdown requests under Clause 5.1 (
Delivery of Requests
) of the Credit Agreement in respect of this Term Loan AK-B Facility.
|
29.
|
The Borrower and the Company agree that, notwithstanding the provisions of Clause 12 (
Taxes
) of the Credit Agreement in connection with any payment required to be made by an Obligor to the Telenet Additional Facility AK-B Lender:
|
30.
|
The parties to this Agreement acknowledge and agree that (a) in the event that the Term Loan AK-B Facility Loan is made by way of cash settlement pursuant to Clause 24, it shall be made by the Telenet Additional Facility AK-B Lender directly to the Borrower to an account notified by the Borrower to the Telenet Additional Facility AK-B Lender, rather than through the Facility Agent and (b) in respect of any other payments of principal, interest or other amounts due under Term Loan AK-B Facility, (i) the Borrower shall make payments payable by it to the Telenet Additional Facility AK-B Lender directly to the Telenet Additional Facility AK-B Lender (or to such account as the Telenet Additional Facility AK-B Lender may specify), and (ii) the Telenet Additional Facility AK-B Lender shall make payments payable by it to the Borrower directly to the Borrower (or to such account as the Borrower may specify). The Telenet Additional Facility AK-B Lender agrees that it shall promptly notify the Facility Agent if the Borrower fails to make any payment under subclause (b)(i) of this Clause 30 when due, and the Borrower agrees that it shall promptly notify the Facility Agent if the Telenet Additional Facility AK-B Lender fails to make any payment under subclause (b)(ii) of this Clause 30 when due.
|
31.
|
The Telenet Additional Facility AK-B Lender agrees that without prejudice to Clause 29.4 (
Procedure for Transfer by Way of Novation
) of the Credit Agreement, each New Lender (as defined in the Transfer Certificate referred to below) shall become, by the execution by the Facility Agent of a Transfer Certificate substantially in the form of Schedule 3 (
Transfer Certificate
(
Cash
)) to this Agreement, bound by the terms of this Agreement as if it were an original party hereto as a Telenet Additional Facility AK-B Lender and shall acquire the same rights, grant the same consents and assume the same obligations towards the other parties to this Agreement as would have been acquired, granted and assumed had the New Lender been an original party to this Agreement as a Telenet Additional Facility AK-B Lender.
|
32.
|
The Facility Office and address for notices of the Telenet Additional Facility AK-B Lender for the purposes of Clause 36.2 (
Contact Details
) of the Credit Agreement will be that notified by the Telenet Additional Facility AK-B Lender to the Facility Agent.
|
33.
|
For the purposes of the Term Loan AK-B Facility and any Term Loan AK-B Facility Loan, and notwithstanding any provision of a Finance Document to the contrary:
|
(a)
|
The following defined terms shall have the following meanings in the Finance Documents:
|
(b)
|
Where they relate to a Luxembourg company, references in the Finance Documents to:
|
(i)
|
a
winding-up, administration
or
dissolution
includes, without limitation, bankruptcy (
faillite
), insolvency, voluntary or judicial liquidation (
liquidation volontaire ou judiciaire
), composition with creditors (
concordat préventif de faillite
), reprieve from payment (
sursis de paiement
), controlled management (
gestion contrôlée
), fraudulent conveyance (
actio pauliana
), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally;
|
(ii)
|
a
receiver
,
administrative receiver
,
administrator
or the like includes, without limitation, a
juge délégué, commissaire, juge-commissaire, liquidateur or curateur
;
|
(iii)
|
a
security interest
includes any
hypothèque, nantissement, gage, privilege, sûreté réelle, droit de rétention
and any type of real security or agreement or arrangement having a similar effect and any transfer of title by way of security; and
|
(iv)
|
a person being
unable to pay its debts
includes that person being in a state of cessation of payments (
cessation de paiements
).
|
(c)
|
Any guarantee given by any Luxembourg Guarantor does not constitute a suretyship (
cautionnement
) in the sense of articles 2011 and subsequent of the Luxembourg civil code.
|
(d)
|
The maximum liability of any Luxembourg Guarantor under the Finance Documents shall be limited so that the maximum amount payable by the relevant Luxembourg Guarantor for the obligations of any Obligor, which is not a direct or indirect Subsidiary of such Luxembourg Guarantor, hereunder shall at no time exceed the Maximum Amount.
|
(i)
|
all moneys received by that Luxembourg Guarantor or direct or indirect Subsidiaries of that Luxembourg Guarantor (which are direct or indirect Subsidiaries of that Luxembourg Guarantor on the date hereof or which will be direct or indirect Subsidiaries of that Luxembourg Guarantor hereafter) as borrower under or pursuant to the Finance Documents; and
|
(ii)
|
the aggregate amount of the outstanding intercompany loans made to the Luxembourg Guarantor or direct or indirect Subsidiaries of that Luxembourg Guarantor (which are direct or indirect Subsidiaries of that Luxembourg Guarantor on the date hereof or which will be direct or indirect Subsidiaries of that Luxembourg Guarantor hereafter) by other members of the Group which have been funded with moneys received by the Borrowers under the Finance Documents (the
Loan Amount
); and
|
(iii)
|
an amount equal to 95% of the greater of:
|
(A)
|
the market value of the assets of the Luxembourg Guarantor at the time the guarantee is called less the Liabilities, other than the Loan Amount, at the time the guarantee is called; and
|
(B)
|
the market value of the assets of the Luxembourg Guarantor at the date of this Agreement less the Liabilities, other than the Loan Amount, at the time the guarantee is called.
|
(e)
|
Telenet International Finance S.à r.l. hereby expressly accepts and confirms, for the purposes of Articles 1278 and 1281 of the Luxembourg Civil Code, that notwithstanding any assignment, transfer and/or novation permitted under, and made in accordance with the provisions of this Agreement or the Finance Documents, the guarantee given by it guarantees all obligations of each Luxembourg Obligor (including without limitation, all obligations with respect to all rights and/or obligations so assigned, transferred or novated) and any security created under this Agreement or the Finance Documents shall be preserved for the benefit of any New Lender and each Luxembourg Obligor hereby accepts and confirms the aforementioned.
|
(f)
|
Qualifying Lender
means, in the case of a Luxembourg Borrower, a Lender which is entitled to receive interest payments free of withholding tax levied pursuant to the Luxembourg law of 23 December 2005, as amended, introducing a withholding tax of 20% on payments of interest or similar income made or ascribed by a paying agent established in Luxembourg to or for the benefit of an individual beneficial owner who is resident of Luxembourg or, in the case of a Belgian Borrower, has the meaning given to that term in the Credit Agreement.
|
34.
|
Each Existing Security Provider (other than the Company) irrevocably appoints the Company to act as its agent:
|
35.
|
If a term of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect:
|
(a)
|
the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or
|
(b)
|
the legality, validity or enforceability in other jurisdictions of that or any other term of this Agreement.
|
36.
|
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
37.
|
This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement. In relation to each counterpart, upon confirmation by or on behalf of the signatory that the signatory authorises the attachment of such counterpart signature page to the
|
38.
|
Clause 39.1 (
Jurisdiction
) of the Credit Agreement is incorporated into this Agreement as if set out in full and as if references in that clause to “the Finance Documents” is to this Agreement.
|
39.
|
This Agreement is a “Creditor Accession Undertaking” as defined in the Intercreditor Agreement.
|
40.
|
The Borrower under the Term Loan AK-B Facility hereby agrees that the Telenet Additional Facility AK-B Lender may disclose confidential information supplied to it by or on behalf of any Obligor in connection with the Finance Documents to the extent such disclosure is required by the terms of the Notes.
|
41.
|
For the purposes of any assignment, transfer or novation of rights and/or obligations (in whole or in part) by the Telenet Additional Facility AK-B Lender under Clause 29.3 (
Transfers by Lenders
) of the Credit Agreement, each of the Company and the Borrower hereby irrevocably consents to any assignment, transfer or novation made by the Telenet Additional Facility AK-B Lender (i) by way of security in favour of The Bank of New York Mellon, London Branch (as security trustee under the Indenture) and (ii) following an Event of Default under and as defined in the Indenture. The Telenet Additional Facility AK-B Lender may only deliver to the Facility Agent a completed Transfer Certificate if at that time it confirms to the Facility Agent in writing that an assignment, transfer or novation of the interest in the Term Loan AK-B Facility to be assigned, transferred or novated is not prohibited under the terms of any agreement that is binding on it or any of its assets.
|
42.
|
The parties acknowledge that this Agreement is a Finance Document.
|
Telenet Additional Facility AK-B Lender
|
Term Loan AK-B Facility Commitment
(€)
|
[
Insert name of Belgian SPV
]
|
600,000,000
|
|
|
Total
|
600,000,000
|
1.
|
Obligors
|
(a)
|
A copy of the articles of association or equivalent constitutional documents of each Obligor and each Existing Security Provider.
|
(b)
|
A copy of a resolution of the board of directors or equivalent of each Obligor and each Existing Security Provider approving the terms of, and the transactions contemplated by, this Agreement and any other Finance Documents to which it is, or will become, a party.
|
(c)
|
A specimen of the signature of each person authorised on behalf of each Obligor and each Existing Security Provider to execute or witness the execution of this Agreement and any other Finance Document or to sign or send any document or notice in connection with this Agreement and any other Finance Document.
|
(d)
|
An up-to-date extract from the Luxembourg Trade and Companies Register in respect of each Obligor and each Existing Security Provider incorporated in Luxembourg or, to the extent such Obligor or Existing Security Provider is not registered with the Luxembourg Trade and Companies Register, a certificate from a notary residing in Luxembourg.
|
(e)
|
An up-to-date negative certificate (
certificat de non-inscription d’une decision judiciaire
) issued by the Luxembourg Trade and Companies register in respect of each Obligor and each Existing Security Provider incorporated in Luxembourg or, to the extent such Obligor or Existing Security Provider is not registered with the Luxembourg Trade and Companies Register, a certificate on solvency of an authorised signatory of the relevant Obligor or Existing Security Provider (as applicable).
|
(f)
|
A copy of the minutes of the shareholders’ meeting of each Belgian Obligor and each Belgian Existing Security Provider in the form of a limited liability company (
naamloze vennootschap
) (except for Telenet Group Holding NV):
|
(i)
|
approving for the purposes of article 556 of the Belgian Companies Act, the terms of and transactions contemplated by this Agreement; and
|
(ii)
|
authorising named persons to fulfil the formalities with the Registry of the Commercial Court of the registered office of such Obligor or Existing Security Provider following the decision taken in accordance with the above.
|
(g)
|
A certificate of an authorised signatory of the Company:
|
(i)
|
confirming that utilising the Total Commitments (including the Term Loan AK-B Facility Commitment) in full would not breach any limit binding on any Obligor; and
|
(ii)
|
certifying that each copy document specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
(h)
|
A copy of the most recent annual accounts of the Borrower or, in the absence thereof, a copy of the opening balance sheet of the Borrower.
|
(i)
|
Evidence required by the Finance Parties for the purpose of any applicable money laundering regulations.
|
2.
|
Legal opinions
|
(a)
|
A legal opinion of Allen & Overy LLP, English legal advisers to the Facility Agent, addressed to the Finance Parties and to the security trustee under the Indenture (in substantially the same form as the opinion delivered in respect of the Telenet Additional Facility AK Accession Agreement).
|
(b)
|
A legal opinion of Allen & Overy (Belgium) LLP, Belgian legal advisers to the Facility Agent, addressed to the Finance Parties and to the security trustee under the Indenture (in substantially the same form as the opinion delivered in respect of the Telenet Additional Facility AK Accession Agreement).
|
(c)
|
A legal opinion of Allen & Overy
société en commandite simple
, Luxembourg legal advisers to the Facility Agent, addressed to the Finance Parties and to the security trustee under the Indenture (in substantially the same form as the opinion delivered in respect of the Telenet Additional Facility AK Accession Agreement).
|
3.
|
Other Documents
|
(a)
|
Evidence that the agent of the Borrower under the Finance Documents for service of process in England has accepted its appointment.
|
From:
|
[THE EXISTING LENDER] and [THE NEW LENDER]
|
(a)
|
Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement;
|
(b)
|
Clause 22.3 (
Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders
) of the Intercreditor Agreement; and
|
(c)
|
the Telenet Additional Facility Accession Agreement dated 13 December 2017, pursuant to which a €600,000,000 term loan facility is made available to the Borrower as a Telenet Additional Facility (
Term Loan AK-B Facility
) under the Credit Agreement (the
Telenet Additional Facility AK-B Accession Agreement
).
|
1.
|
We, [ ] (the
Existing Lender
) agree to novate and we, [ ] (the
New Lender
) agree to accept novation of all the Existing Lender's rights and obligations referred to in the Schedule on and from the Effective Date in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement and Clause 22.3 (
Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders
) of the Intercreditor Agreement.
|
2.
|
The New Lender confirms that it is bound by the terms of the Telenet Additional Facility AK-B Accession Agreement from the Effective Date as if it were an original party thereto as a Telenet Additional Facility AK-B Lender and shall acquire the same rights, grant the same consents and assume the same obligations towards the other parties to the Telenet Additional Facility AK-B Accession Agreement as would have been acquired, granted and assumed had the New Lender been an original party to the Telenet Additional Facility AK-B Accession Agreement as a Telenet Additional Facility AK-B Lender.
|
3.
|
For the purposes of Articles 1278 and 1281 of the Luxembourg Civil Code and Article 1278 of the Belgian Civil Code, each of the Existing Lender, the Facility Agent and the New Lender agree and each of the Existing Security Providers and Guarantors acknowledge and accept that the Security Documents will be preserved for the benefit of the New Lender in accordance with Clause 29.4 (
Procedure for Transfer by Way of Novations
) of the Credit Agreement.
|
4.
|
The New Lender represents on the date of this Transfer Certificate that:
|
(a)
|
it is a Qualifying Lender; and
|
(b)
|
it is not a Lender that has met the conditions described in any of paragraphs (a) to (c) of Clause 12.6 (
U.S. Taxes
) of the Credit Agreement.
|
5.
|
This Transfer Certificate shall take effect on the date of this Transfer Certificate.
|
6.
|
For the purposes of this Transfer Certificate, “
Effective Date
” means the date specified under the Facility Agent's name in the relevant signature page to this Transfer Certificate.
|
7.
|
Each party to this document agrees, the Facility Agent agrees on behalf of each Finance Party, and Telenet BVBA agrees on behalf of each Obligor, that this document is a Transfer Certificate notwithstanding that its form is different to that required by the Credit Agreement.
|
8.
|
The New Lender, agrees to become party to the Intercreditor Agreement as a Senior Lender for the purposes of the Intercreditor Agreement and confirm that, as from the date of this Transfer Certificate, it intends to be party to the Intercreditor Agreement as a Senior Lender and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
9.
|
This Transfer Certificate is a Finance Document.
|
10.
|
This Transfer Certificate may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Transfer Certificate by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Transfer Certificate.
|
11.
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
Facility Office
|
[ ]
|
1.
|
Majority Lenders:
amend Clause 1.1 (
Definitions
) of the Credit Agreement to reduce the fractions specified in the definitions of Majority Lenders, from two thirds or more (for any or all purposes under the Credit Agreement or any other Finance Document (including for the purposes of any Telenet Additional Facility)) to more than 50.00% and to exclude the available commitments of defaulting lenders for the purposes of amendments or waivers.
|
2.
|
Super Majority Lenders
: amend Credit Agreement to provide for a definition of Super Majority Lenders so that amendments and waivers in respect of the release of any guarantee or security only requires the consent of Lenders representing 90.00% of Commitments.
|
3.
|
Tax
: amend Clause 12 (
Taxes
) to include any provisions (which are not materially adverse to the interests of the Lenders) required to accommodate an acceding Additional Borrower incorporated in a jurisdiction other than Belgium, the Netherlands, Luxembourg and the United States.
|
4.
|
Market Disruption
: amend the Credit Agreement to include market disruption provisions and the provision of alternative interest rates in accordance with recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market.
|
5.
|
Geographic restrictions
: amend Clause 29.9 (
Additional Borrowers
) to provide that, in addition to the existing ability for an Additional Borrower incorporated in Benelux and the US to accede (without requiring any Lender consent), to provide an ability to accede Additional Borrowers incorporated in any other jurisdictions with the consent of the Majority Lenders.
|
6.
|
Holding Companies
: amend Clause 21.9(b)(iii) to expressly permit a merger of Telenet Group Holding NV, Telenet BVBA or Telenet Vlaanderen NV or any of their intermediate holding companies subject to compliance with the merger regime in recent Liberty precedents.
|
7.
|
Changes to Thresholds:
in the definition of Permitted Security Interest, permit the Company to secure Financial Indebtedness on a
pari passu
or junior ranking basis provided that (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) the Net Total Debt to Consolidated Annualised EBITDA ratio on a pro forma basis would not be greater than 5.50:1.00 and provided that such Financial Indebtedness is subject to an intercreditor agreement on terms which are satisfactory to the Security Agent (acting on the instructions of the Majority Lenders) and where (in the case of such Financial Indebtedness being secured on a junior ranking basis) the rights of the holders of such Financial Indebtedness in respect of any payment will be contractually subordinated to the rights of the Lenders on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt, as referred to in recent Liberty precedent.
|
|
|
|
8.
|
Security and Guarantee Release
: amend the relevant provisions of the Credit Agreement (in particular Clauses 21.17 (
Share Security
) and 29.11 (
Resignation of an Obligor(other than the Company)
)) to provide that, subject to certain thresholds being met no Obligor nor any other member of the Group is required to provide any Security or guarantee other than Security over the shares that it holds in any Obligor, Security required under the terms of the Credit Agreement in respect of Subordinated Shareholder Loans and a guarantee from the Obligors under the terms of the Credit Agreement and include a provision to authorise the Security Agent to release any other Security or guarantees other than the aforementioned and to release Security in respect of Permitted Disposals and to permit relevant Security to be released if a Guarantor resigns in accordance with Clause 29.11 (
Resignation of an Obligor (other than the Compan
y)) provided that the guarantor coverage test would still be met notwithstanding such release.
|
9.
|
Defaulting Lender
: include standard defaulting lender provisions used in recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market so as the commitments of a defaulting lender may be cancelled and it will have no rights to vote in respect of such cancelled commitments. Clarify that no commitment fee will be payable to a defaulting lender.
|
10.
|
Assignments/Transfers of Lenders:
clarify that the Company should have the right to withhold consent in respect of an assignment/transfer of the Revolving Facility to an entity which is not a lender under a revolving facility to the wider Liberty group (subject to no consent being required in the case of transfers to other Lenders or affiliates of Lenders or following an event of default which is continuing). There should be no unreasonableness qualifier on this right (in respect of the Revolving Facility only). Remove requirement of deemed consent within 10 Business Days in respect of each Revolving Facility.
|
11.
|
Assignments/Transfers of Obligors
: amend Clause 29.2 (
Assignment or Transfer by Obligors
) so that any Benelux Borrower may assign or transfer any of its rights and obligations under the Revolving Facility or the Term Loans to another Benelux Borrower and so that any US Borrower may do the same to another US Borrower, in each case, without the prior consent of the Lenders provided that a solvency opinion and legal opinion are provided, if requested, in accordance with recent Liberty precedents in respect of an equivalent provision.
|
12.
|
Amendments
:
|
(a)
|
amend Clause 28 (
Amendments and waivers
) to introduce a class exception, whereby any amendment or waiver that relates only to the rights or obligations of a particular Utilisation or Facility and does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations or Facilities only requires the consent of the relevant proportion of Lenders participating in such Utilisation or Facility;
|
(b)
|
amend Clause 28.2 (
Exceptions
) to require the consent of affected Lenders only and not all Lenders (and make any consequential changes by amending for example, all references to matters requiring all Lender consent to only requiring affected Lender consent); and
|
(c)
|
include a new paragraph (d) to Clause 28.2 (
Exceptions
), to permit the Facility Agent to make technical, minor, operational and OID amendments without consent from any Lenders, on terms consistent with recent Liberty precedent as at the date of implementation of the amendments.
|
13.
|
Joint Ventures and solvent reorganisations
: amend the Credit Agreement to permit Telenet BVBA to contribute freely pledged loan and guarantee receivables to the Permitted Joint Venture’s share capital without requiring a release from the Security Agent (subject to confirmation or re-taking of security over such pledged loan and guarantee receivables).
|
14.
|
Accession Agreements:
amend each Accession Agreement to remove the restriction which prevents:
|
(a)
|
Telenet BVBA from arranging an Additional Facility if after giving effect to a utilisation thereunder, the ratio of Net Total Senior Debt to Consolidated Annualised EBITDA would be greater than 4.50:1; and
|
(b)
|
the Company from requesting the transfer of an Additional Facility pursuant to Clause 28.3 (
Non-Consenting Lenders
).
|
15.
|
Non-Consenting Lenders
: remove the timing window of 90 days during which the Company may effect the provisions set out in Clause 28.3 (
Non-Consenting Lenders
).
|
1.
|
Super Majority Lenders
: delete paragraph (a)(vii) of Clause 28.2 (
Exceptions
).
|
2.
|
Market Disruption:
amend the Credit Agreement to include provisions for the protection of reference banks and their officers in accordance with recent Liberty precedents and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market.
|
3.
|
Amendments
:
|
(a)
|
include a new clause such that 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 10 Business 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, and delete the proviso to the definition of Majority Lenders; and
|
(b)
|
delete paragraph (a)(vi) of Clause 28.2 (
Exceptions
) and provide that guarantees and security can be released with the consent of the Lenders representing 90% of Commitments.
|
4.
|
Additional Borrowers
: Additional Borrowers may be incorporated in the Kingdom of Belgium, Netherlands, Luxembourg or, in relation to any new Additional Facilities, in the United Kingdom.
|
5.
|
Mandatory Costs
: delete all references in each Additional Facility Accession Agreement to Mandatory Costs and any related provisions.
|
6.
|
Permitted Disposals
:
|
(a)
|
amend the definition of Permitted Disposal to include in addition to the existing “Permitted Disposals”:
|
(i)
|
disposals by one member of the Group to another member of the Group provided that, if such assets subject to the disposal are subject to existing security, the Borrower within 15 Business Days of such disposal ensures that the assets remain subject to security; and
|
(ii)
|
disposals of shares or other interests in project companies, entities excluded from the Group which are subsidiaries of the Company or joint venture companies (each as defined in recent Liberty precedent) or the assignment of any Financial Indebtedness owed to a member of the Group by any project companies, entities excluded from the Group which are subsidiaries of the Company or a joint venture company.
|
1.
|
Ancillary Facilities
: amend the Credit Agreement to provide that (i) a date specified in a conversion notice as the effective date for an ancillary facility commitment may be a date not less than 3 Business Days after the date such conversion notice is received by the Facility Agent, (ii) any proposed increase or reduction or extension of the ancillary facility commitment shall only take effect from a date not less than 3 Business Days after the date the Facility Agent has received notice of the relevant modification or variation or extension and (iii) an ancillary facility lender may demand repayment or prepayment of any amounts under its ancillary facility if the ancillary facility outstandings under that ancillary facility can be repaid by a revolving facility advance (and not less than 7 Business Days notice (or such shorter period as agreed to by the Company) is given to the relevant Borrower before payment becomes due).
|
2.
|
Defaulting Lender
: amend the Credit Agreement to include the right to replace a Lender (in whole and at par) if that Lender becomes a Defaulting Lender.
|
1.
|
Transfers
: amend clause 29.3 (
Transfers by Lenders
) of the Credit Agreement to provide that the consent of the Company is not required for any assignment or transfer by a Lender if an Event of Default is outstanding pursuant to any of clauses 22.2 (
Non-payment
), 22.6 (
Insolvency
), 22.7 (
Insolvency Proceedings
), 22.8 (
Creditors’ Process
) or 22.9 (
Similar Proceedings
) only (rather than if any Event of Default is outstanding).
|
2.
|
New RCF Maintenance Covenant
: amend the Credit Agreement to provide that amendments and waivers of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) to 20.4 (
Cure provisions
) and the new acceleration clause at (d) above shall only be made with the consent of the Company and the Composite Revolving Facility Instructing Group and shall not require the consent of any other Finance Party.
|
1.
|
Lender Assignments
: amend Clause 29 (
Changes to Parties
) of the Credit Agreement to provide that Lenders may transfer their rights and obligations under the Credit Agreement by way of assignment (subject to equivalent conditionality (including as set out in Clause 29.3 (
Transfers by Lenders of the Credit Agreement
)) as applies to the regime for transfers by Lenders of their rights and obligations by way of novation under the Credit Agreement and otherwise in accordance with recent Liberty precedent).
|
1.
|
Solvent Liquidation:
Amend the Credit Agreement to provide for releases of Security as a result of, and in connection with, any solvent liquidation or dissolution that complies with Clause 21.24 (
Internal Reorganisations
) of the Credit Agreement.
|
2.
|
Non-Consenting Lenders:
Remove the timing window of 90 days during which the Company may exercise its rights as set out in Clause 28.3 (
Non Consenting Lenders
) such that the Company may exercise such rights at any time.
|
3.
|
Waivers
: Add a new limb to Clause 28.1 (
Procedure
) as follows:
|
4.
|
Transfers
: Delete paragraph (b) of Clause 29.3 (
Transfers by Lenders
) in its entirety and replace it with the following:
|
1.
|
Agent’s Spot Rate of Exchange:
delete the definition of Agent’s Spot Rate of Exchange and replace it with the following:
|
2.
|
Ancillary Facility Lender:
delete the definition of Ancillary Facility Lender and replace it with the following:
|
3.
|
Consolidated EBITDA:
amend the definition of Consolidated EBITDA to:
|
(a)
|
amend limb (l) to move the words “any Holding Company Expenses paid to the extent that they were permitted to be paid under this Agreement for such Measurement Period” to a new paragraph (m) and to delete the word “and” before “any Holding Company Expenses”; and
|
(b)
|
amend limb (n) to include the words “or transfer of assets” after the words “sale of assets”.
|
4.
|
Distribution Business:
include the following new definition:
|
(a)
|
the business of upgrading, constructing, creating, developing, acquiring, operating, owning, leasing and maintaining cable television networks (including for the avoidance of doubt master antenna television, satellite master antenna television, single and multi-channel microwave single or multi-point distribution systems and direct-to-home satellite systems) for the transmission, reception and/or delivery of multi-channel television and radio programming, telephony and internet and/or data services to the residential markets; or
|
(b)
|
any business which is incidental to or related to and, in either case, material to such business.”
|
5.
|
Excess Capacity Network Service:
include the following new definition:
|
6.
|
Financial Indebtedness:
amend the definition of Financial Indebtedness to:
|
(a)
|
delete limb (e); and
|
(b)
|
delete limb (d) and replace it with the following:
|
7.
|
Guarantor:
delete the definition of Guarantor and replace it with the following:
|
8.
|
Impaired Agent:
amend limb (c) of the definition of Impaired Agent to include the words “or (c)” before the words “of the definition of “
Defaulting Lender
”” and to replace the word “or” between the words “paragraph (a)” and “(b)”with a comma.
|
9.
|
Majority Lenders:
delete the final proviso paragraph of the definition of Majority Lenders and provide that it is subject to the snooze and lose provision to be included pursuant to paragraph 21 of Schedule 5 and Clause 10.7(d).
|
10.
|
Permitted Acquisition:
amend the definition of Permitted Acquisition to:
|
(a)
|
include an additional limb as follows:
|
(b)
|
amend limb (m) to include the words “, within 60 days of the date of such conversion,” after the words “ensure that the Security Agent is”;
|
(c)
|
delete the proviso at the end of the definition after paragraph (u); and
|
(d)
|
include an additional limb as follows:
|
11.
|
Permitted Disposal
: amend the definition of Permitted Disposal to:
|
(a)
|
amend limb (t) to delete “€50,000,000” and replace it with “€150,000,000” and to delete “1%” and replace it with “three per cent.”;
|
(b)
|
amend limb (t) to add the following to the end of limb (t) of the definition of Permitted Disposal:
|
(c)
|
amend limb (hh) to delete each reference to “€50,000,000” and replace it with “€150,000,000”;
|
(d)
|
amend limb (ii) to:
|
(i)
|
include, at the end of the limb, the words “and any disposal of assets pursuant to sale and leaseback transactions constituting Financial Indebtedness to the extent such Financial Indebtedness is permitted under this Agreement” after “in any financial year”;
|
(ii)
|
delete “2%” and replace it with “3%”; and
|
(iii)
|
delete “€100,000,000” and replace it with “€150,000,000”;
|
(e)
|
include an additional limb as follows:
|
(A)
|
undertakings, assets, rights and revenues comprising interests in the share capital of any person engaged solely in the competitive local exchange carrier (CLEC) business, including without limitation, the business of providing traditional voice and data services and services based on Transmission Control Protocol/Internet Protocol (RCP/IP) technology and other undertakings, assets, rights or revenues constituting a part of such businesses; and
|
(B)
|
undertakings, assets, rights and revenues comprising interests in the share capital of any person engaged solely in the business of television and radio programming, including without limitation, the business or creating and distributing special interest television channels, radio programmes, pay per view programmes and near video on demand services and other undertakings, assets, rights or revenues constituting a part of such businesses;”; and
|
(f)
|
delete limb (ww)(iii).
|
12.
|
Permitted Financial Indebtedness:
amend the definition of Permitted Financial Indebtedness to:
|
(a)
|
include an additional limb as follows:
|
(b)
|
include an additional limb as follows:
|
(A)
|
the extent of such recourse to such member of the Group is limited solely to the amount of any recoveries made on any such enforcement;
|
(B)
|
such person or persons are not entitled, pursuant to the terms of any agreement evidencing any right or claim arising out of or in connection with such Financial Indebtedness, to commence proceedings for the winding up, dissolution or administration of any member of the Group (or proceedings having an equivalent effect) or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of any member of the Group or any of its assets (save only for the Non-Distribution Business Assets the subject of that Security Interest) until
|
(C)
|
the aggregate outstanding amount of all such Financial Indebtedness of all members of the Group does not exceed €100,000,000 (or its equivalent in other currencies);”
|
(c)
|
amend limb (i) to delete the words “under paragraph (jj), (kk) and (ll) of that definition”; and
|
(d)
|
amend limb (r) to delete the words “no Default or”.
|
13.
|
Permitted Joint Venture:
delete the words “provided that no Event of Default has occurred and is continuing at the time of such proposed acquisition”.
|
14.
|
Construction
:
|
(a)
|
Add a new limb to Clause 1.2 (
Construction
) as follows:
|
15.
|
Permitted Payments
:
|
(a)
|
Amend Clause 21.11 (
Restricted Payments
) to include an additional limb (c) as follows:
|
“(c)
|
The restriction contained in paragraph (a) on the payment by any member of the Group of Management Fees shall cease to apply during such period as the applicable ratio for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) is 3.50:1 (or less), provided that no Management Fees may be paid by any member of the Group at any time after a Relevant Event has occurred or if a Relevant Event would result from such payment.”
|
(b)
|
Include the following new definition:
|
(c)
|
Include the following additional limb to the definition of Permitted Payment:
|
(d)
|
Amend limb (j) of the definition of Permitted Payment to delete the words “paragraph (s)” and replace them with “paragraph (jj)”.
|
(e)
|
Amend limb (cc) of the definition of Permitted Payment to delete “€10,000,000” and replace it with “€50,000,000”.
|
(f)
|
Delete limb (ll) of the definition of Permitted Payment and replace it with the following:
|
(g)
|
Delete “2%” and replace it with “3%” at limb (kk) of the definition of Permitted Payment.
|
(h)
|
Amend limb (r)(i) of the definition of Permitted Payment to replace the words “three days” with the words “three Business Days”.
|
16.
|
Signing Date:
amend all references to “the date of this Agreement” to “the Signing Date”.
|
17.
|
Wider Group:
amend paragraph (b) of the definition of Wider Group to add the words “(other than a member of the Group)” at the end.
|
18.
|
Spin-Off
: delete the existing definition of Spin-Off at Clause 10.2(c)(xi) (
Mandatory Prepayment - Change of Control
) and replace it with the following:
|
19.
|
Borrower
: delete the existing definition of Borrower and replace it with the following:
|
20.
|
Sub-participations
:
|
(a)
|
Include a new definition of Sub-participation as follows:
|
(b)
|
Amend Clause 29.3 (
Transfers by Lenders
) in order that this clause includes a restriction on Sub-participations of rights and obligations and is subject to the same consent regime as for assignments and transfers in accordance with recent Liberty precedent.
|
(c)
|
Add a new clause as follows:
|
(a)
|
such Lender remains a Lender under this Agreement with all rights and obligations pertaining thereto and remains liable under the Finance Documents for any such obligation;
|
(b)
|
such Lender retains exclusive control over all rights and obligations in relation to the participations and Commitments that are the subject of the relevant agreement or arrangement, including all voting rights (for the avoidance of doubt, free of any agreement or understanding pursuant to which it is required to or will consult with any other person in relation to the exercise of any such rights and/or obligations), unless:
|
(i)
|
the proposed sub-participant is a person to whom the relevant rights and obligations could have been assigned or transferred in accordance with the terms of this Clause 29; and
|
(ii)
|
prior to entering into the relevant agreement or arrangement, the relevant Lender provides the Company with full details of that proposed sub-participant and any voting, consultation or other rights to be granted to the sub-participant;
|
(c)
|
the relationship between the Lender and the proposed sub-participant is that of a contractual debtor and creditor (including in the bankruptcy or similar event of the Lender or an Obligor);
|
(d)
|
the proposed sub-participant will have no proprietary interest in the benefit of this Agreement or any of the Finance Documents or in any monies received by the relevant Lender under or in relation to this Agreement or any of the Finance Documents (in its capacity as sub-participant under that arrangement); and
|
(e)
|
the proposed sub-participant will under no circumstances: (i) be subrogated to, or be substituted in respect of, the relevant Lender’s claims under this Agreement or any of the Finance Documents; or (ii) otherwise have any contractual relationship with, or rights against, the Obligors under or in
|
(d)
|
Include the additional provision as follows:
|
“(a)
|
In the case of a Sub-participation (in each case, other than any non-voting derivatives (which are not participations) which would otherwise be caught by the definition of “Sub-participation”), the person granting the Sub-participation (or similar right) shall, acting solely for these purposes as non-fiduciary agent for the Company, maintain a register (a “
Sub-Participant Register
”) on which it enters the name and address of each sub-participant (or person holding the similar right) and the Commitment and obligations (including principal and stated interest) in which each sub-participant (or other person) has an interest or obligation.
|
(b)
|
Notwithstanding anything to the contrary hereunder, including without limitation Clause 24 (
Evidence and Calculations
), the entries in the Sub- Participant Register shall be conclusive absent manifest error, and such person maintaining the Sub-Participant Register shall treat each person whose name is recorded in the Sub-Participant Register as the owner of such Sub-participation (or similar right) for all purposes of a Finance Document notwithstanding any notice to the contrary.
|
(c)
|
Without prejudice to the other provisions of this Clause 29, no Lender shall have any obligation to disclose all or any portion of the Sub-Participant Register to any person (including the identity of any sub-participant or any information relating to a sub-participant’s interest in any Advance, Commitments or other obligations under any Finance Documents) except to the extent that such disclosure is to a tax authority and is necessary to establish that such Advance, Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or is otherwise required thereunder.”
|
(e)
|
Amend Clause [23.14 (
Relationship with Lenders
)] to include an additional sub-paragraph as follows:
|
21.
|
Additional Facilities:
|
(a)
|
Add a new paragraph (i) to Clause 2.2 (
Telenet Additional Facility
) as follows:
|
(b)
|
Amend the Additional Facilities Cap as defined in Clause 2.2(g) (
Telenet Additional Facility
) such that:
|
(i)
|
it includes an additional limb for the aggregate amount of any voluntary prepayments of (A) Term Facility Advances that are secured on a
pari passu
basis with the other Facilities or (B) Advances under Revolving Facilities (to the extent accompanied by a corresponding permanent cancellation of the relevant Revolving Facility Commitments), in each case, to the extent the relevant prepayment or cancellation is not funded or effected with any long-term Financial Indebtedness (including Financial Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced with long-term Financial Indebtedness); and
|
(ii)
|
the Company shall have the ability to classify such amounts of Financial Indebtedness on the date of their incurrence and shall only be required to include the amount and type of such Financial Indebtedness in one of such sub-paragraphs and will be permitted on the date of such incurrence to divide and classify an item of such Financial Indebtedness in more than one of the types of Financial Indebtedness described in such paragraphs, and, from time to time, may reclassify all or a portion of such Financial Indebtedness, in any manner.
|
22.
|
Consolidated EBITDA
: amend the definition of Consolidated EBITDA under the Credit Agreement to provide that any adjustments to reduce the impact of the cumulative effect of a change in accounting principles or policies and changes as a result of the adoption or modification of accounting principles or policies can be added (at the Company’s option) to the operating income of the Group for that Measurement Period.
|
23.
|
Additional Obligors
: Amend the Credit Agreement to provide that any Affiliate of the Company may accede to the Credit Agreement as a Guarantor in accordance with Clause 29.10 (
Additional Guarantors
) (provided that Security has been granted in form and substance satisfactory to the Facility Agent (acting reasonably) in favour of the Security Agent over 100% of its shares and all rights in relations to loans from members of the Wider Group to it) and that such Affiliate shall be a member of the Group and an Additional Guarantor. Add a new definition of “Affiliate Subsidiary” to Clause 1.1 (
Definitions
) such that it means any Affiliate of the Company that accedes to the Credit Agreement as a Guarantor pursuant to the amendments described in this paragraph and provided that it has not resigned as a Guarantor in accordance with the terms of the Credit Agreement.
|
24.
|
Right of Repayment and Cancellation in Relation to a Single Lender:
delete Clause 10.8(c)(i) and replace it with the following:
|
25.
|
Alternative Benchmarks
:
|
(a)
|
Add the following new definitions to Clause 1.1 (
Definitions
) as follows:
|
(b)
|
Replace the definition of “Screen Rate” in Clause 1.1 (
Definitions
) with the following:
|
(i)
|
at any time prior to an Alternative Benchmark Commencement Date in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
|
(ii)
|
at any time on or following an Alternative Benchmark Commencement Date in relation to LIBOR, the Alternative Benchmark Rate for the relevant currency and period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date; and
|
(i)
|
at any time prior to an Alternative Benchmark Commencement Date in relation to EURIBOR, the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
|
(ii)
|
at any time on or following an Alternative Benchmark Commencement Date in relation to EURIBOR, the Alternative Benchmark Rate for Euro for the relevant period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date,
|
26.
|
ERISA
:
|
(a)
|
Replace the definition of “ERISA Affiliate” in Clause 1.1 (
Definitions
) with the following:
|
(b)
|
Replace the definition of “Plan” in Clause 1.1 (
Definitions
) with the following:
|
(a)
|
maintained by any Obligor or any ERISA Affiliate; or
|
(b)
|
to which any Obligor or any ERISA Affiliate is required to make any payment or contribution.
|
(c)
|
Replace the definition of “Reportable Event” in Clause 1.1 (
Definitions
) with the following:
|
(a)
|
an event specified as such in section 4043 of ERISA or any regulation, other than an event in relation to which the requirement to give notice of that event is waived by any regulation; or
|
(b)
|
a failure to meet the minimum funding standard under section 412 or 430 of the Code or section 302 of ERISA, whether or not waived.
|
(d)
|
Amend Clause 18.16 (
ERISA
) to delete the words “member of the Group or”.
|
(e)
|
Delete paragraph (c) of Clause 19.6 (
Notification of Default
).
|
(f)
|
Delete Clause 21.19 (
ERISA
) and replace it with the following:
|
(a)
|
Each Obligor must as soon as reasonably practicable upon becoming aware of it notify the Facility Agent of:
|
(ii)
|
the termination of or withdrawal from, or any circumstances reasonably likely to result in the termination of or withdrawal from, any Plan; and
|
(iii)
|
any material non-compliance with any law or regulation relating to any Plan which is or is reasonably likely to have a Material Adverse Effect.
|
(b)
|
Each Obligor and its ERISA Affiliates must be, and remain, in compliance in all material respects with all laws and regulations relating to each of its Plans.
|
(c)
|
Each of the Obligors and its ERISA Affiliates must ensure that no event or condition exists at any time in relation to a Plan which is reasonably likely to result in the imposition of a lien or other encumbrance on any of its assets or which is reasonably likely to have a Material Adverse Effect.”
|
(g)
|
Delete Clause 22.15 (
ERISA
).
|
27.
|
Limited Condition Transaction
: amend the definition of “Limited Condition Transaction” in Clause 1.1 (
Definitions
) to include a third sub-paragraph as follows:
|
28.
|
Rollover
: Add a new definition of “Rollover Loan” in Clause 1.1 (
Definitions
) as follows:
|
(a)
|
“
Rollover Loan
” means:
|
(a)
|
a Rollover Advance that is for an amount which is equal to or less than the Maturing Advance in respect of which that Rollover Advance is being drawn to refinance; and
|
(b)
|
an Advance in relation to a Revolving Facility:
|
(i)
|
made or to be made on the same day that a demand by the Facility Agent pursuant to a drawing in respect of a Documentary Credit is due to be met;
|
(ii)
|
the aggregate amount of which is equal to or less than the amount of the relevant claim in respect of that Documentary Credit;
|
(iii)
|
in the same currency as the relevant claim in respect of that Documentary Credit; and
|
(iii)
|
made or to be made for the purpose of satisfying the relevant claim in respect of that Documentary Credit.
|
(b)
|
Amend paragraph (a) of Clause 4.2 (
Further Conditions Precedent
) to delete the reference to “Rollover Advance” and replace it with a reference to “Rollover Loan”.
|
(c)
|
Amend paragraph (c) of Clause 4.2 (
Further Conditions Precedent
), to delete the following words “Rollover Advance provided that the amount of the Maturing Advance is equal to or greater than the amount of that Rollover Advance” and to replace them with the words “Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)”.
|
(d)
|
Amend Clause 8.2(a) (
Unavailability of Optional Currency
) to delete the reference to “Rollover Advance” and replace it with a reference to “Rollover Loan”.
|
(e)
|
Amend the title to Clause 9.2 (
Rollover Advances
) (and all other references in the Credit Agreement to that title) to refer to “(
Rollover
)” and further amend it so that the words “and in an amount which is equal to or less than” on the 6
th
line are deleted.
|
29.
|
Cost of Funds
:
|
(a)
|
Amend paragraph (b) of Clause 13.4 (
Cost of Funds
) such that it also applies if LIBOR or EURIBOR is to be determined by reference to a Reference Bank Rate or an Alternative Reference Bank Rate and to provide that, in entering into negotiations with the Company with a view to agreeing a substitute basis for determining the rate of interest, the Facility Agent may act in its sole discretion and will not be required to consult with or seek any consent or instruction from the Lenders or any other Finance Party.
|
(b)
|
Delete paragraph (c) of Clause 13.4 (
Cost of Funds
) and replace it with the following:
|
(c)
|
Amend paragraph (e) of Clause 13.4 (
Cost of Funds
) to provide that if a Lender does not supply a quotation by the given time period in paragraph (a)(ii), the rate of interest for that Lender will be the weighted average of the quotations notified to the Facility Agent by the other Lenders.
|
30.
|
US Regulations
:
|
(a)
|
Add a new definition of Regulation U in Clause 1.1 (
Definitions
) as follows:
|
(b)
|
Replace Clause 18.17 (
United States Regulation
) with the following:
|
(c)
|
Delete Clause 18.19 (
Margin stock
) and replace it with the following:
|
31.
|
Amendments and Waivers
:
|
32.
|
Guarantees
: amend Clause 21.13 (
Loans and Guarantees
) to:
|
(a)
|
add the words “in respect of Financial Indebtedness only” after the words “no member of the Group will make any loans, grant any credit or give any guarantee”;
|
(b)
|
add a new paragraph as a carve out as follows:
|
(c)
|
delete “€100,000,000” and replace it with “€150,000,000” and delete “2%” and replace it with “3%” at Clause 21.13(bb) (
Loans and Guarantees
);
|
(d)
|
amend paragraph (g) to include an additional limb (v) as follows:
|
“(v)
|
by an Obligor in respect of the liabilities of any other member of the Group which is not an Obligor provided that that other member of the Group must become an Additional Guarantor in accordance with Clause 29.10 (
Additional Guarantors
) within 30 days of the granting of the guarantee made pursuant to this paragraph (v);”
|
(e)
|
amend paragraph (z) to delete “€10,000,000” and replace it with “€25,000,000”; and
|
(f)
|
to include additional limbs as follows:
|
(i)
|
“any loans or guarantees relating to Excess Capacity Network Services provided that the price payable to 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 Group in providing such Excess Capacity Network Services;”; and
|
(ii)
|
“any guarantees or similar undertakings granted by any member of the Group in favour of any tax authority in respect of any obligations of a member of the Group in respect of tax in order to facilitate the winding up of any member of the Group provided that the Facility Agent shall have first received confirmation from the Company that based on discussions with such tax authority and the Company’s reasonable assumptions, the Company does not believe that the liability under such guarantee will exceed €15,000,000 (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);”
|
33.
|
Spin Parent
: delete the following sentence in paragraph (b) of Clause 10.2 (
Mandatory Prepayment – Change of Control
):
|
34.
|
Reporting
:
|
(a)
|
Delete the definition of GAAP in Clause 1.1 (
Definitions
) and replace it with the following:
|
(b)
|
Delete the definition of IFRS in Clause 1.1 (
Definitions
) and replace it with the following:
|
(c)
|
Delete Clause 19.5 (
Change in Accounting Principles
) in its entirety and replace it with the following:
|
“(a)
|
Except as otherwise expressly provided below or in this Agreement, all ratios and calculations based on IFRS contained in this Agreement shall be computed in conformity with IFRS.
|
(b)
|
At any time after the OFS Date, the Company may elect to apply for all purposes of this Agreement, in lieu of IFRS, GAAP and, upon such election, references to IFRS herein will be construed to mean GAAP;
provided
that:
|
(i)
|
all financial statements and reports to be provided, after such election, pursuant to this Agreement shall be prepared on the basis of GAAP as in effect from time to time (including that, upon first reporting its financial year results under GAAP, the financial statements of the Reporting Entity shall be restated on the basis of GAAP for the year ending immediately prior to the first financial year for which financial statements have been prepared on the basis of GAAP); and
|
(ii)
|
from and after such election, all ratios, computations and other determinations based on GAAP contained in this Agreement shall, at the Company’s option:
|
(A)
|
continue to be computed in conformity with GAAP (
provided
that, following such election, the annual and quarterly information required by paragraphs (a)(i) and (a)(ii) of Clause 19.1 (
Financial Statements
) shall include a
|
(B)
|
be computed in conformity with GAAP with retroactive effect being given thereto assuming that such election had been made on the OFS Date, subject to any further election in accordance with the definition of GAAP.
|
(d)
|
Amend paragraphs (a)(i) and (a)(ii) of Clause 19.1 (
Financial Statements
) to provide that the relevant financial statements or accounts (as applicable) shall be prepared in accordance with IFRS.
|
35.
|
Business Division Transactions and Joint Ventures
:
|
(a)
|
In Clause 1.1 (
Definitions
):
|
(i)
|
amend the definition of “Business Division Transaction” to delete the words “, in each case, where such transaction has the prior approval of the Majority Lenders”; and
|
(ii)
|
add the following new definitions:
|
(b)
|
Amend the definition of Permitted Payments and Clause 21.13 (
Loans and Guarantees
) to include the following additional carve outs in each such clause:
|
(i)
|
“in relation to any Permitted Business Division Transaction; and
|
(ii)
|
in relation to any Acceptable Joint Venture.”
|
(c)
|
Amend paragraph (m) of the definition of Permitted Disposal and paragraph (s)(iv) of the definition of Permitted Payment such that the word “Permitted” is added before the words “Business Division Transaction”.
|
36.
|
Permitted Security Interest
: amend the definition of “Permitted Security Interest” in Clause 1.1 (
Definitions
):
|
(a)
|
to include in addition to the existing “Permitted Security Interests”:
|
(b)
|
include the following additional limb:
|
37.
|
Permitted Acquisitions and Permitted Joint Ventures
: delete sub-paragraph (e)(iii) of the definition of Permitted Acquisition in Clause 1.1 (
Definitions
) and delete sub-paragraph (b)(ii) of the definition of Permitted Joint Venture in Clause 1.1 (
Definitions
).
|
38.
|
Auditors
: delete the definition of “Auditors” in Clause 1.1 (
Definitions
) and replace it with the following:
|
39.
|
Additional Facilities
: amend paragraph (g) and sub-paragraph (g)(i) of Clause 2.2 (
Telenet Additional Facility
) to read as follows:
|
“(g)
|
Subject to paragraph (h) below, the aggregate principal amount of any proposed Telenet Additional Facility shall not, at the election of the Company acting in its sole discretion (x) on the date that the Telenet Additional Facility becomes effective (giving pro forma effect to the intended use of proceeds of such Telenet Additional Facility and assuming that the entire amount of that Telenet Additional Facility is drawn on such date, and provided that an election that this sub-paragraph (x) shall apply may not be made in relation to that Telenet Additional Facility if an election that sub-paragraph (y) shall apply has previously been made in relation to that Telenet Additional Facility) or (y) on the date of each Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)) of that Telenet Additional Facility (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that Telenet Additional Facility is drawn) exceed the aggregate of the sum of:
|
(i)
|
an unlimited amount provided that on a pro forma basis Net Senior Debt to Consolidated Annualised EBITDA is equal to or less than 4.50:1;
|
40.
|
Construction
:
|
(a)
|
Amend Clause 1.2(a) (
Construction
) to add the following additional limbs:
|
(i)
|
“
fair market value
” unless otherwise specified, wherever such term is used in this Agreement, may be conclusively established by means of an officer’s certificate or a resolution of the board of directors of the Company, any Permitted Affiliate Parent or any Affiliate Subsidiary setting out such fair
|
(ii)
|
any matter being “
permitted
” under this Agreement or any other Finance Document shall include references to such matters not being prohibited or otherwise being approved under this Agreement or any other such Finance Document; and
|
(iii)
|
“
consolidated
” in connection with the financial position of, financial statements of or accounts of or financial definitions in relation to, the Group shall be construed to mean that the accounts of any Affiliate Subsidiary shall be combined for the purpose of determining such financial position, financial statements, accounts or financial definitions.
|
(b)
|
Amend Clause 1.2 (
Construction
) to add the following additional paragraphs:
|
“(x)
|
No personal liability shall attach to any director, officer or employee of any member of the Wider Group or Group for any representation or statement made by that member of the Wider Group or Group (as applicable) in a certificate signed by such director, officer or employee; and
|
(y)
|
No Default, Event of Default or breach of any representation and warranty or undertaking under the Finance Documents shall arise merely as a result of a subsequent change in the Euro equivalent of any relevant amount due to fluctuations in exchange rates.”
|
(c)
|
Amend Clause 1.2 (
Construction
) to include the following wording at the start of sub-paragraph (a)(xvii)(C) of Clause 1.2 (
Construction
):
|
(d)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(e)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(f)
|
Amend Clause 1.2 (
Construction
) to include an additional limb in paragraph (a) as follows:
|
(g)
|
Amend Clause 1.2 (
Construction
) to delete limb (v) of paragraph (a) and replace it with the following:
|
(h)
|
Amend Clause 1.2 (
Construction
) to delete limb (viii) of paragraph (a) and replace it with the following:
|
(i)
|
Amend Clause 1.2 (
Construction
) to include an additional limb of Clause 1.2 as follows:
|
(j)
|
Amend Clause 1.2 (
Construction
) to include an additional limb of Clause 1.2 as follows:
|
“(a)
|
This Agreement is entered into subject to, and with the benefit of, the terms of the Intercreditor Agreement.
|
(b)
|
Notwithstanding anything to the contrary in this Agreement, the terms of the Intercreditor Agreement will prevail if there is a conflict between the terms of this Agreement and the terms of the Intercreditor Agreement.”
|
(k)
|
Where relevant in the Credit Agreement, amend references to “company” or “entity” to “person” in accordance with paragraph (a)(vii) of Clause 1.2 (
Construction
).
|
41.
|
Increase
: amend Clause 2.1 (
Increase
) to:
|
(a)
|
delete sub-paragraphs (a)(i) and (a)(ii); and
|
(b)
|
delete sub-paragraph (a)(iii) and replace it with the following:
|
“(iii)
|
at the election of the Company acting in its sole discretion, it shall be a condition:
|
(A)
|
that the aggregate principal amount of any proposed increase in the Commitments shall not exceed,
mutatis mutandis
, the Additional Facilities Cap on the date that such increase in the Commitments becomes effective (giving pro forma effect to the intended use of proceeds of such increased Commitment and assuming that the entire amount of that increased Commitment is drawn on such date, and provided that an election that this paragraph (A) shall apply may not be made in relation to that increased Commitment if an election that paragraph (B) shall apply has previously been made in relation to that increased Commitment); or
|
(B)
|
to any Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (
Renewal of Documentary Credits
)) of that increased Commitment that the aggregate principal amount of that increased Commitment to be drawn would not exceed,
mutatis mutandis
, the Additional Facilities Cap on the date of that Utilisation (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that increased Commitment is drawn); and”
|
42.
|
Increased Costs
:
|
(a)
|
Amend the first paragraph of Clause 14.1 (
Increased Costs
) to add “within ten Business Days of demand by the Facility Agent,” after “the Company must” in the first line.
|
(b)
|
Delete paragraph (a) of Clause 14.3 (
Claims
) and replace it with the following:
|
“(a)
|
A Finance Party intending to make a claim pursuant to Clause 14.1 (
Increased Costs
) shall, as soon as is reasonably practicable after that Finance Party becomes aware that circumstances have arisen which entitle it to make such claim, notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.”
|
43.
|
Springing Financial Covenant
: amend the covenant set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) so that is reads as follows:
|
“(a)
|
Subject to Clause 22.5 (
Cross-default and Cross-acceleration
), in the event that on the last day of a Measurement Period the aggregate of the Telenet Additional Facility Outstandings under any Revolving Facility (in each case, other than Documentary Credits that are cash collateralised or undrawn) and the net indebtedness outstanding under each Ancillary Facility less Cash of the Group exceeds an amount equal to 40 per cent. of the aggregate of the Revolving Facility Commitments and each Ancillary Facility Commitment (the “
Financial Ratio Test Condition
”), the Company shall procure that the ratio of Net Total Debt to Consolidated Annualised EBITDA on that day (the “
Financial Ratio
”) shall not exceed 6.00:1 unless otherwise agreed in writing by the Composite Revolving Facility Instructing Group and the Company.
|
(b)
|
If the financial covenant set out in paragraph (a) has been breached for a Measurement Period but is complied with on the last day of the next Measurement Period (either because the Financial Ratio Test Condition is not met for that next Measurement Period or because the Financial Ratio does not exceed 6.00:1 for that next Measurement Period), then, the prior breach of such financial covenant or any Event of Default arising therefrom shall not (or shall be deemed to not) directly or indirectly constitute, or result in, a breach of any representation, warranty, undertaking or other term in the Finance Documents or a Default or an Event of Default unless the Facility Agent has taken any action under Clause 22.18 (
Maintenance Covenant Revolving Facility Acceleration
) before the delivery of the certificate referred to at Clause 19.3(a) (
Compliance Certificate
) in respect of that next Measurement Period.”
|
44.
|
Financial Information:
amend paragraph (a) of Clause 19.3 (
Compliance Certificate
) so that it reads as follows:
|
“(a)
|
The Company must supply to the Facility Agent a Compliance Certificate with each set of its financial statements sent to the Facility Agent under this Agreement if, as at the last day of the Measurement Period ending on the date of such financial statements, the Financial Ratio Test Condition is met.”
|
45.
|
Cure Provisions:
delete Clause 20.4 (
Cure Provisions
) and replace it with the following:
|
“
20.4
|
Cure Provisions
|
(a)
|
The Company may cure a breach of the financial ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) by procuring that:
|
(i)
|
additional equity is injected into, and/or additional Subordinated Shareholder Loans is provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been deducted from Net Total Debt for the Measurement Period in respect of which the breach arose, would have avoided the breach; or
|
(ii)
|
additional equity is injected into, and/or additional Subordinated Shareholder Loans is provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been added to Consolidated Annualised EBITDA for the Measurement Period in respect of which the breach arose, would have avoided the breach; or
|
(iii)
|
any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility are prepaid (from any source selected by the Company in its sole discretion) in an amount which if such prepayment had occurred immediately prior to the calculation on the last day of the Measurement Period in respect of which the breach arose, the Financial Ratio Test Condition as at the last day of that Measurement Period would not have been met and therefore the financial ratio would not have been required to be tested.
|
(b)
|
A cure under this Clause 20.4 will not be effective unless:
|
(i)
|
in the case of paragraph (a)(i) or (a)(ii) above, an amount equal to or greater than the required amount of additional equity or the proceeds of any Subordinated Shareholder Loans is received by one or more members of the Group; or
|
(ii)
|
in the case of paragraph (a)(iii) above, the amount of any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility that are required to be prepaid are so prepaid,
|
(c)
|
No cure may be made under this Clause 20.4 (
Cure Provisions
)
|
(i)
|
in respect of more than five Measurement Periods during the life of the Telenet Additional Facilities; or
|
(ii)
|
in respect of consecutive Measurement Periods.
|
(d)
|
The Company shall make an election (at its sole discretion) by notice to the Facility Agent prior to the end of the Cure Period as to whether a breach of the financial ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) shall be
|
(e)
|
If the Company makes an election for a recalculation as described in sub-paragraphs (a)(i) or (a)(ii) above, it shall be under no obligation to apply the amount of additional equity or the proceeds of any Subordinated Shareholder Loans that are received by one or more members of the Group in prepayment of the Facilities or for any other specific purpose and such amount will be deemed to be deducted from Net Total Debt or added to Consolidated Annualised EBITDA for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) (as applicable) as at the last day of the relevant Measurement Period.
|
(f)
|
If the Company makes an election for a recalculation as described in sub-paragraph (a)(iii) above, the amount of any Telenet Additional Facility Outstandings under any Revolving Facility and/or net indebtedness under any Ancillary Facility that are prepaid shall be deemed to be deducted in the calculation of the Financial Ratio Test Condition for the purposes of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) as at the last day of the relevant Measurement Period.
|
(g)
|
For the purpose of ascertaining compliance with Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
), the Financial Ratio Test Condition and the ratio set out in Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) will be tested or retested, as applicable, giving effect to the elections and adjustments referred to in paragraph (d), (e) and (f) above. If, after giving effect to such elections and adjustments, the requirements of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) are met, then the requirements under Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) shall be deemed to have been satisfied as at the relevant original date of determination.
|
(h)
|
Where a cure is exercised under this Clause 20.4 in respect of a breach of Clause 20.2 (
Net Total Debt to Consolidated Annualised EBITDA
) for any financial quarter and the Company makes an election for a recalculation as described in sub-paragraph (a)(ii) above, the amount of additional equity or the proceeds of any Subordinated Shareholder Loans that are received by one or more members of the Group shall also be added in calculating Consolidated EBITDA for any future Measurement Period that includes such financial quarter. Any adjustments pursuant to this paragraph will not be treated as a separate cure.”
|
46.
|
Permitted Disposal:
amend the definition of Permitted Disposal to add a new limb as follows:
|
47.
|
Permitted Financial Indebtedness
:
|
(a)
|
Amend Clause 21.7 (
Financial Indebtedness
) to add a new paragraph (d) as follows:
|
(b)
|
Amend the definitions of “Senior Debt” and “Total Debt” in Clause 1.1 (
Definitions
) to include an additional limb as follows:
|
48.
|
Related Fund
: amend:
|
(a)
|
Clause 1.1 (
Definitions
) to include a new definition of “Related Fund” as follows:
|
(b)
|
Clause 29.3 (
Transfers by Lenders
) at paragraph (c), to add the words “or, if applicable, a Related Fund” after the words “an Affiliate”.
|
49.
|
Share Capital
:
|
(a)
|
Amend Clause 21.16 (
Share Capital
) to add a new sub-paragraph (i) at the end as follows: “relates to the cancellation of the share capital of any member of the Group or any Obligor”.
|
(b)
|
Amend Clause 21.16 (
Share Capital
) to add the words “or a solvent liquidation under Clause 21.23 (
Internal Reorganisation
)” after the words “Clause 21.9(b)(iii) (
Acquisitions and Mergers
)”.
|
50.
|
Stamp Taxes
: delete Clause 12.7 (
Stamp Taxes
) in its entirety and replace it with the following:
|
(a)
|
any such Tax liabilities payable in connection with any Transfer Certificate or other document relating to the assignment or transfer by any Lender of any of its rights and/or obligations under any Finance Document; or
|
(b)
|
any registration duties and any Tax liability payable due to a registration, submission or filing by a Finance Party of any Finance Document where such registration, submission or filing is or was not required to maintain or preserve the rights of that Finance Party under the applicable Finance Documents.”
|
51.
|
Increased Costs
: Amend Clause 14.2 (
Exceptions
) to include the following additional limbs:
|
“(i)
|
attributable to a change (whether of basis, timing or otherwise) in the Tax liability on the overall net income of the Finance Party (or any Affiliate of it) or of the branch or office through which it lends any Advance;
|
(j)
|
attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority upon the Finance Party (or any Affiliate of it) by virtue of its having exceeded any country or sector borrowing limits or breached any directives imposed upon it;
|
(k)
|
attributable to a breach of a Finance Document by the Finance Party claiming such Increased Cost.”
|
52.
|
Representations
:
|
(a)
|
Delete Clause 18.12 (
Security Interests
) in its entirety.
|
(b)
|
Delete paragraph (b) of Clause 18.6 (
No Event of Default
).
|
(c)
|
Amend paragraph (a) of Clause 18.7 (
Authorisations
) to include the words “(other than the Licences)” after the word “licenses”.
|
(d)
|
Amend paragraph (b) of Clause 18.10 (
Litigation and Insolvency Proceedings
) to replace the words “member of the Group” with the words “Obligor or Material Subsidiary”.
|
(e)
|
Amend Clause 18.18 (
Anti-Terrorism Laws
) to delete the words “It and each of its Affiliates have taken commercially reasonable measures to ensure compliance with the Anti-Terrorism Laws” and to replace them with “It has taken
|
53.
|
Defaulting Lender Disenfranchisement
: in addition to paragraph 10 of Schedule 4, provide in the Credit Agreement as follows:
|
54.
|
Consolidated EBITDA
:
|
(a)
|
Amend paragraph (y) of the definition of Consolidated EBITDA in order that the following words are deleted:
|
(i)
|
are not included in the Company’s externally reported operating cash flow or equivalent measure; or
|
(ii)
|
are deemed to be exception of unusual items”.
|
(b)
|
Amend paragraph (g) of the definition of Consolidated EBITDA to add the words “or other equity based” after the words “any stock based”.
|
55.
|
80% Security Test:
add the following words at the end of the definition of 80% Security Test in Clause 1.1 (
Definitions
):
|
56.
|
Insolvency Event:
amend the definition of Insolvency Event in Clause 1.1 (
Definitions
) to replace the words “in relation to a Finance Party means that the Finance Party:” with the words “in relation to a Finance Party means that the Finance Party or a Holding Company of it (as applicable):”.
|
57.
|
Notes Refinancing:
amend the definitions of Senior Secured Notes Refinancing and Senior Unsecured Refinancing in Clause 1.1 (
Definitions
) to delete the word “reasonable” before the words “fees, costs and expenses”.
|
58.
|
Optional Currency:
amend the definition of “Optional Currency” in Clause 1.1 (
Definitions
) in order that the words “in relation to that Advance” are included after the words “acting on the instructions of all the Lenders”.
|
59.
|
Permitted Acquisition:
amend the definition of Permitted Acquisition in Clause 1.1 (
Definitions
):
|
(a)
|
at paragraph (d) to replace the words “less than a 50 per cent. interest” with the words “an interest of 50 per cent. or less”; and
|
(b)
|
at paragraph (j) to replace the words “10 Business Days” with the words “60 days”.
|
60.
|
Finance Document:
|
(a)
|
Amend the definition of “Finance Document” in Clause 1.1 (
Definitions
) to delete the words “a Transfer Certificate;” and include the words “any Increase Confirmation;”.
|
(b)
|
Amend the definition of “Finance Document” in Clause 1.1 (
Definitions
) to include the following wording at the end of the definition:
|
61.
|
Finance Party:
amend the definition of “Finance Party” in Clause 1.1 (
Definitions
) to include the following wording at the end of the definition:
|
62.
|
Term of Advance
: add a new clause 1.4 as follows:
|
63.
|
Exchange Rates:
add a new clause 1.5 as follows:
|
64.
|
Increase
: amend paragraph (b) of Clause 2.1 (
Increase
) to add a new limb (iii) as follows:
|
65.
|
Additional Facility
: amend paragraph (h) of Clause 2.2 (
Telenet
Additional Facility
) to:
|
(a)
|
delete sub-paragraphs (h)(ii)(A), (h)(ii)(B) and (h)(ii)(C); and
|
(b)
|
delete sub-paragraphs (h)(iii)(B), (h)(iii)(C) and (h)(iii)(D).
|
66.
|
Prepayments
: amend Clause 10.10 (
Miscellaneous Provisions
) to delete paragraph (g) and replace it with the following:
|
67.
|
Tax Indemnity
: amend paragraph (b)(ii) of Clause 12.4 (
Tax Indemnity
) to add an additional limb as follows:
|
68.
|
Representations:
amend Clause 18 (
Representations and Warranties
) by inserting the word “substantially” after the word “business” at Clause 18.2(b) (
Status
).
|
69.
|
Share Capital:
amend Clause 21.16 (
Share Capital
) to add words “that is a member of the Group” after the words “Each Obligor” and before the words “will not”.
|
70.
|
Obligor Accession:
amend Clause 21.22 (
Further Assurances
) in order that the words “10 Business Days” at paragraph (b)(i) are replaced with “60 days”.
|
71.
|
Breach of obligations EOD
: amend Clause 22.3(a) (
Breach of Other Obligations
) to add the following language at the end:
|
72.
|
Cross Default EOD
: amend Clause 22.5 (
Cross-default and Cross-acceleration
):
|
(a)
|
by deleting the words “is placed on demand;” at paragraph (b)(ii);
|
(b)
|
by deleting limb (c);
|
(c)
|
at paragraph (d)(v), by deleting the words “is not placed on demand, becomes” and replacing them with the words “does not become” and adding the word “not” before the words “otherwise accelerated during that period”; and
|
(d)
|
by adding the following additional limb to paragraph (d):
|
73.
|
Defaulting Lenders
: amend Clause 29.3 (
Transfers by Lenders
) in order that the following is included as a new Clause 29.3(h):
|
“(h)
|
Notwithstanding any other provision of this Agreement, no Lender shall be entitled to assign or transfer any of its rights, benefits or obligations under the Finance Documents to a New Lender that is a Defaulting Lender.”
|
74.
|
Amendments
: add a new paragraph (d) to Clause 28.2 (
Exceptions
) as follows:
|
75.
|
Measurement Period:
delete the definition of Measurement Period and replace it with the following:
|
76.
|
Consolidated Annualised EBITDA
: delete the definition of “Consolidated Annualised EBITDA” in Clause 1.1 (
Definitions
) and replace it with the following:
|
77.
|
Telenet Additional Facility:
|
(a)
|
Amend paragraph (h) of Clause 2.2 (
Telenet Additional Facility
) and paragraphs (a) and (b) of Clause 2.3 (
Overall Facility Limits
) to amend each reference from “Advances” and “advances” to “Utilisations”.
|
(b)
|
Amend limb (ii)(D) and (iii)(E) of paragraph (h) of Clause 2.2 (
Telenet Additional Facility
) to delete the word “reasonable” before the word “fees”.
|
(c)
|
Add an additional limb to Clause 2.2 (
Telenet Additional Facility
) as follows:
|
78.
|
Amount of Advance
: amend paragraph (b) of Clause 5.3 (
Amount of Advance or Documentary Credit
) to include the words “under that Facility” after the words “on behalf of the Lenders”.
|
79.
|
Revaluation of Documentary Credits:
|
(a)
|
Amend paragraph (a) of Clause 6.4 (
Revaluation of Documentary Credits
) to replace the words “at six monthly intervals after the date of the Documentary Credit” with the words “on the last Business Day of each financial year”.
|
(b)
|
Amend paragraph (b) of Clause 6.4 (
Revaluation of Documentary Credits
) to replace the words “three Business Days” with the words “ten Business Days”.
|
80.
|
Affiliates of Borrowers:
amend paragraph (c) of Clause 7.7 (
Affiliates of Borrowers
) to include the words “, provided that such Affiliate is not an Affiliate of any other Obligor, ” after the words “its Affiliate”.
|
81.
|
Right of Repayment and Cancellation of a Single Lender:
amend paragraph (a)(iii) of Clause 10.8 (
Right of Repayment and Cancellation of a Single Lender
) to include the words “or Clause 15 (
Illegality and Mitigation
)” after the words “Clause 10.1 (
Mandatory Prepayment – Illegality
)” and to replace the reference to “or” before the reference to “Clause 10.1” with a comma.
|
82.
|
Selection:
|
(a)
|
Amend paragraph (d)(ii) of Clause 11.5 (
Selection – Term Facility
) to replace the word “Facility” with “Term Facility Advance” throughout such paragraph and to replace the words “Lenders whose commitments under the relevant Facility then aggregate two thirds or more of the aggregate Commitments under that Facility” with “Majority Lenders under the relevant Facility”.
|
(b)
|
Amend paragraph (c) of Clause 11.6 (
Selection – Revolving Facility
) to replace the words “under that Revolving Facility” with “under the relevant Advance under that Revolving Facility” throughout such paragraph and to replace the
|
83.
|
Payments:
amend Clause 16.4 (
Currency
) to include the following additional limbs and to re-number limb (c) to limb (e):
|
“(c)
|
A repayment or prepayment of an Advance is payable in the currency in which the Advance is denominated.
|
(d)
|
All interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated.”
|
84.
|
Information
: amend Clause 19.4 (
Information – Miscellaneous
) to delete paragraph (c) in its entirety.
|
85.
|
Change of Business
: delete Clause 21.8 (
Change of Business
) and replace it with the following:
|
86.
|
Acquisitions:
amend paragraph (b)(iii)(B) of Clause 21.9 (
Acquisitions and Mergers
) to replace the words “for the period commencing on the date of merger and ending on the earlier of the date that falls 3 years from the date of merger and the longest dated Final Maturity Date” with “on a pro forma basis following such merger or consolidation.”
|
87.
|
Insurance:
amend Clause 21.12 (
Insurance
) to delete the words “procure that each member of the Group will” and replace them with “procure that each of its Material Subsidiaries which is a member of the Group will”.
|
88.
|
Shareholder Loans:
amend paragraph (a) of Clause 21.14 (
Shareholder Loans
) to replace the words “30 days” with “60 days”.
|
89.
|
Share Security:
|
(a)
|
delete Clause 21.17 (
Share security
) and replace it with the following:
|
(a)
|
notwithstanding paragraph (b) below, an Obligor may issue shares to any person other than a member of the Group and shall not be required to procure that such shares are charged or pledged in favour of the Beneficiaries, provided that such share issue does not result in a Change of Control;
|
(b)
|
any member of the Group may issue shares to or otherwise acquire additional rights from any other member of the Group so long as (if any of the existing shares in the relevant member of the Group are charged or pledged in favour of any Beneficiary) such shares are charged or pledged in favour of the Beneficiaries pursuant to the terms of a Security Document and there are delivered at the same time to the Security Agent the relevant share certificates and blank stock transfer forms (or equivalent documents) in respect thereof together with such other documents and evidence and legal opinions as the Security Agent may reasonably require;
|
(c)
|
the Company may issue shares to Telenet Group BVBA provided that such shares are charged or pledged in favour of the Beneficiaries pursuant to the terms of a Security Document and there are delivered at the same time to the Security Agent the relevant share certificates and blank stock transfer forms (or equivalent documents) in respect thereof together with such other documents and evidence and legal opinions as the Security Agent may reasonably require;
|
(d)
|
any member of the Group may issue shares pursuant to the exercise of Approved Stock Options;
|
(e)
|
a member of the Group may issue shares as part of an Acquisition or merger or consolidation permitted by Clause 21.9 (
Acquisitions and Mergers
), provided that the issue of such shares does not cause a Change of Control;
|
(f)
|
a member of the Group (other than an Obligor) may issue shares to all the holders of the share capital of such member of the Group
pro rata
to their interests in such share capital provided that, if any existing shares in that member of the Group are charged or pledged in favour of any Beneficiary under any Security Document, upon issue the shares that are issued to any other member of the Group are charged or pledged in favour of the Beneficiaries as provided in paragraph (b) above; and
|
(g)
|
any member of the Group (other than the Company) may issue shares to any person pursuant to any agreement or other legally binding arrangement existing, and disclosed to the Facility Agent in writing, on or before the Signing Date, provided that such share issue does not result in a Change of Control.”
|
(b)
|
Add the following additional definition to Clause 1.1 (
Definitions
):
|
90.
|
Group Redesignation:
delete Clause 21.25 (
Group Redesignation
) and replace it with the following:
|
91.
|
Clean Up Period:
|
(a)
|
Amend the definition of Clean Up Period in Clause 22.3 (
Breach of Other Obligations
) to replace the words “120 days” with the words “180 days”.
|
(b)
|
Delete the words “(other than Clause 22.3(a) (
Breach of Other Obligations
) to the extent it refers to Clause 20 (
Financial Covenant
))” in paragraph (c) of Clause 22.3 (
Breach of Other Obligations
).
|
92.
|
Intercreditor Agreement:
amend paragraph (a) of Clause 22.12 (
Intercreditor Agreement
) to include the word “material” before the word “obligations”.
|
93.
|
Acceleration:
amend Clause 22.17 (
Acceleration
) to replace the words “may, and must if so instructed by the Majority Lenders” with the words “the Facility Agent shall, if the Majority Lenders so direct”.
|
94.
|
Indemnity:
|
(a)
|
Amend paragraph (a) of Clause 26.1 (
Currency Indemnity
) to include the words “, within 10 Business Days of demand” after the words “Obligor must”.
|
(b)
|
Amend paragraph (a)(i) of Clause 26.2 (
Other Indemnities
) to replace the word “Default” with the words “Event of Default”.
|
(c)
|
Amend paragraph (a) of Clause 26.3 (
Break Costs
) to include the words “, within ten Business Days of demand by a Lender, ” after the words “Each Borrower must”.
|
(d)
|
Amend paragraph (b) of Clause 26.3 (
Break Costs
) to include the words “, as soon as reasonably practicable after a demand by the Facility Agent, ” after the words “Each Lender must”.
|
95.
|
Amendments and waivers:
|
(a)
|
Amend Clause 28.2 (
Exceptions
) to add an additional limb (d) as follows:
|
“(d)
|
Notwithstanding any other provision of this Clause 28 (
Amendments and Waivers
), the Facility Agent may at any time without the consent or sanction 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:
|
(i)
|
would not be materially 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;
|
(ii)
|
relates to the increase in the principal amount of a Commitment of a Lender in relation to any Facility and such increased Commitment has been requested by the Company to fund any original issue discount required to be paid to that Lender in relation to that Facility under any Finance Document;
|
(iii)
|
is of a minor, operational or technical nature; or
|
(iv)
|
which relates to the implementation of any alternative basis for the calculation of interest that is binding on all Parties in accordance with paragraph (c) of Clause 13.4 (
Cost of Funds
).
|
(b)
|
Amend Clause 28.2 (
Exceptions
) to include the words “Subject to Clause 28.6 (
Structural Adjustments
) below,” at the beginning of paragraph (a).
|
(c)
|
Amend paragraph (a) of Clause 28.3 (
Non Consenting Lenders
) to delete limb (iii) in its entirety.
|
(d)
|
Add an additional provision to Clause 28.2 (
Exceptions
) as follows:
|
96.
|
Changes to the Parties:
|
(a)
|
Amend Clause 29.2 (
Assignment or Transfers by Obligors
) to include the words “except to the extent permitted by this Agreement” at the end of the paragraph.
|
(b)
|
Amend paragraph (a) of Clause 29.9 (
Additional Borrowers
) to delete the words “(following consultation with the Facility Agent)”.
|
(c)
|
Amend paragraph (b) of Clause 29.9 (
Additional Borrowers
) to include the words “under the relevant Facility” after the words “all the Lenders”.
|
(d)
|
Amend paragraph (b)(ii) of Clause 29.11 (
Resignation of an Obligor (other than the Company
) to replace the words “a Default” with the words “an Event of Default”.
|
97.
|
Governing law:
|
(a)
|
Delete Clause 38 (
Governing law
) and replace it with the following:
|
(b)
|
Amend the governing law provisions of the schedules to the Credit Agreement to refer to “non-contractual obligations” in conformity with paragraph (a) above.
|
98.
|
Order of Application:
amend Clause 10.4 (
Order of application
) by deleting sub-paragraph (e).
|
99.
|
Affiliate
: amend the definition of Affiliate in Clause 1.1 (
Definitions
) such that it reads as follows:
|
(a)
|
an Affiliate of the Company that issues any notes, bonds or other securities for the purpose of on-lending the proceeds of such issuances under a Facility and to a Borrower under this Agreement and which acts in accordance with the terms of any indentures or other documents governing such issuances (a “
Designated Notes Issuer
”) shall not be an Affiliate of the Company or any of its Affiliates; and
|
100.
|
Change of L/C Bank:
add the words “in relation to the Facility in respect of which such Documentary Credits are issued” after the words “Majority Lenders” in paragraph (c) of Clause 6.11 (
Appointment and Change of L/C Bank)
.
|
101.
|
Restricted Person:
amend the definition of Restricted Person in Clause 1.1 (
Definitions
) such that it reads as follows:
|
102.
|
Permitted Affiliate Group Designation:
amend limb (iv)(c) of Clause 29.8 (
Permitted Affiliate Group Designation
) to include the words “if available,” at the start of the limb.
|
103.
|
Permitted Payment
: add a new limb to the definition of Permitted Payment in Clause 1.1 (
Definitions
) as follows:
|
|
|
|