EX-10.3 5 y49999ex10-3.txt CREDIT AGREEMENT 1 Exhibit 10.3 SUBSCRIPTION AGREEMENT NTL AUSTRALIA PTY LIMITED (AS BORROWER) EACH PARTY LISTED IN SCHEDULE 1 (AS A GUARANTOR) EACH PARTY LISTED IN SCHEDULE 2 (AS A SUBSCRIBER) CHASE SECURITIES AUSTRALIA LIMITED (AS AGENT) CHASE CAPITAL MARKETS FIDUCIARY SERVICES AUSTRALIA LIMITED (AS SECURITY TRUSTEE) AND CHASE SECURITIES AUSTRALIA LIMITED (AS ARRANGER) (FREEHILLS LOGO) MLC Centre Martin Place Sydney NSW 2000 Australia Telephone 61 2 9225 5000 Facsimile 61 2 9322 4000 www.freehills.com.au DX361 Sydney SYDNEY MELBOURNE PERTH CANBERRA BRISBANE HANOI HO CHI MINH CITY SINGAPORE Correspondent Offices JAKARTA KUALA LUMPUR Liability limited by the Solicitors' Limitation of Liability Scheme, approved under the Professional Standards Act 1994 (NSW) Reference CJR:BKT:36A 2 NTL Subscription Agreement -------------------------------------------------------------------------------- TABLE OF CONTENTS Clause Page 1 DEFINITIONS AND INTERPRETATION 1 1.1 Definitions 1 1.2 Interpretation 20 1.3 Business Day 21 1.4 Accounting Standards 21 1.5 Issue of Debentures 22 2 CONDITIONS PRECEDENT 22 2.1 Conditions precedent to initial Funding Portion 22 2.2 Conditions precedent to all Funding Portions 24 2.3 Certified copies 25 2.4 Subscriber's conditions precedent 25 2.5 Conditions subsequent 25 3 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY 25 3.1 Provision of Commitment 25 3.2 Several obligations and rights of Subscribers 26 3.3 Purpose 26 3.4 Cancellation of Commitment during Availability Period 27 3.5 Cancellation at end of Availability Period 27 3.6 Prepayment 27 3.7 Prepayment date 28 4 FUNDING PROCEDURES 28 4.1 Delivery of Funding Notice 28 4.2 Requirements for a Funding Notice 28 4.3 Irrevocability of Funding Notice 29 4.4 Number of Funding Portions 29 4.5 Amount of Funding Portions 29 4.6 Selection of Funding Periods 29 4.7 Determination of Funding Rate 30 5 TRANCHE A FACILITY (REVOLVING FACILITY) 30 5.1 Subscription for, and issue of Debentures 30 5.2 Payment to Borrower 31 5.3 Repayment 31 5.4 Interest 31 5.5 Updating Register 32 5.6 First Funding Portion 32 6 TRANCHE B FACILITY (AMORTISING FACILITY) 32 6.1 Subscription for, and issue of Debentures 32 6.2 Payment to Borrower 33 6.3 Repayment 33 6.4 Interest 33 -------------------------------------------------------------------------------- page 1 3 NTL Subscription Agreement 6.5 Scheduled repayment and reduction in Tranche B Commitment 34 6.6 First Funding Portion 34 7 MARGIN AND FEES 34 7.1 Commitment Fee 34 7.2 Other fees 35 7.3 Calculation of Margin and Commitment Fee 35 7.4 Agency Fee 36 8 RELIQUEFACTION BILLS 36 8.1 Reliquefaction Bills 36 8.2 Nature of Reliquefaction Bills 36 8.3 Drawing of Reliquefaction Bills 36 8.4 Subscriber's dealing 36 8.5 Bills of Exchange Act 36 8.6 Stamp duty on Reliquefaction Bills 36 8.7 Indemnity in respect of Reliquefaction Bills 36 8.8 Reduction in Borrower's obligation 37 9 PAYMENTS 37 9.1 Manner of payment 37 9.2 Payments on a Business Day 37 9.3 Appropriation of payments 37 9.4 Payments in gross 38 9.5 Additional payments 38 9.6 Taxation deduction procedures 38 9.7 Amounts payable on demand 39 9.8 Distribution by Agent 39 9.9 Non-receipt of funds by the Agent from the Borrower 39 9.10 Non-receipt of Funding Portion by the Agent from a Subscriber 40 9.11 Redistribution of payments 40 10 REPRESENTATIONS AND WARRANTIES 41 10.1 Representations and warranties 41 10.2 Survival and repetition of representations and warranties 45 10.3 Reliance by Finance Parties 45 11 UNDERTAKINGS 45 11.1 Term of undertakings 45 11.2 Provision of information and reports 46 11.3 Proper accounts 47 11.4 Notices to the Agent 47 11.5 Compliance with statutes and Authorisations 47 11.6 Conduct of business 48 11.7 Payment of Taxes and outgoings 48 11.8 Material Documents 48 11.9 Compliance with Material Documents 49 11.10 Enforcement of Material Documents 49 11.11 Negative pledge and disposal of assets 49 11.12 Finance Debt 50 -------------------------------------------------------------------------------- page 2 4 NTL Subscription Agreement 11.13 No change to business 50 11.14 Disposal of Assets 50 11.15 Loans, guarantees and financial accommodation 50 11.16 Restrictions on dealings 50 11.17 Restrictions on Distributions 50 11.18 Undertakings regarding Secured Property 51 11.19 Insurance 52 11.20 Hedging 54 11.21 Financial undertakings 54 11.22 Debenture Trust Deed 55 12 EVENTS OF DEFAULT 55 12.1 Events of Default 55 12.2 Effect of Event of Default 58 12.3 Review Event 58 12.4 Material Document Default 59 12.5 Financial Ratios Default 59 13 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION 59 13.1 Increased costs 59 13.2 Procedure for claim 60 13.3 Prepayment on increased cost 61 13.4 Illegality 61 14 GUARANTEE 62 14.1 Guarantee 62 14.2 Payment 62 14.3 Securities for other moneys 62 14.4 Amount of Secured Moneys 62 14.5 Proof by Agent 63 14.6 Avoidance of payments 63 14.7 Indemnity for avoidance of Secured Moneys 63 14.8 No obligation to marshal 64 14.9 Non-exercise of Guarantors' rights 64 14.10 Principal and independent obligation 64 14.11 Suspense account 65 14.12 Unconditional nature of obligations 65 14.13 No competition 67 14.14 Continuing guarantee 68 14.15 Variation 68 14.16 Judgments 68 14.17 Additional Guarantors 68 14.18 Conditions 69 15 INDEMNITIES 69 15.1 General indemnity 69 15.2 Foreign currency indemnity 70 15.3 Conversion of currencies 71 15.4 Continuing indemnities and evidence of loss 71 -------------------------------------------------------------------------------- page 3 5 NTL Subscription Agreement 16 TAX, COSTS AND EXPENSES 71 16.1 Tax 71 16.2 Costs and expenses 72 16.3 GST 72 17 INTEREST ON OVERDUE AMOUNTS 73 17.1 Payment of interest 73 17.2 Accrual of interest 73 17.3 Rate of interest 73 18 RELATIONS BETWEEN THE AGENT AND THE SUBSCRIBERS 73 18.1 Appointment of the Agent 73 18.2 Event of Default and Agent's Power 74 18.3 Discretion of the Agent 74 18.4 Borrower not concerned to enquire 74 18.5 Liability of the Agent 75 18.6 Delegation 75 18.7 Agent entitled to rely 75 18.8 Agent not regarded as having notice of Event of Default 75 18.9 Rights of the Agent as a Subscriber 76 18.10 Indemnity by the Subscribers 76 18.11 Agent to forward copies 77 18.12 Independent credit decision by the Subscribers 77 18.13 No monitoring 77 18.14 Information 77 18.15 Agent not responsible for obligations of other parties 77 18.16 Resignation and removal of the Agent 78 18.17 Amendment of Transaction Documents 78 18.18 Institution and joining of actions 78 18.19 Identity of Subscribers 79 19 ASSIGNMENT AND SUBSTITUTION 79 19.1 Assignment by Transaction Party 79 19.2 Assignment or substitution by Subscribers 79 19.3 Substitution certificate 80 19.4 References to a Subscriber 80 19.5 Reduction of Commitments 81 19.6 Assist transfer or assignment 81 19.7 Participation permitted 81 19.8 Securitisation permitted 81 19.9 Lending Office 82 19.10 No increase in costs 82 20 SALE AND DISTRIBUTION OF THE DEBENTURES 82 20.1 Arranger and Subscriber undertakings 82 20.2 Public offer provisions 83 20.3 Debenture Trust Deed and Master Debentures 84 -------------------------------------------------------------------------------- page 4 6 NTL Subscription Agreement 21 SAVING PROVISIONS 85 21.1 No merger of security 85 21.2 Exclusion of moratorium 85 21.3 Conflict 85 21.4 Consents 85 21.5 Principal obligations 86 21.6 Non-avoidance 86 21.7 Set-off authorised 86 21.8 Certificates of Agent 86 21.9 No reliance or other obligations and risk assumption 87 21.10 Power of Attorney 87 21.11 Opinion of a Finance Party 87 22 GENERAL 88 22.1 Confidential information 88 22.2 Performance by Agent of obligations 88 22.3 Transaction Party to bear cost 88 22.4 Notices 89 22.5 Governing law and jurisdiction 90 22.6 Prohibition and enforceability 91 22.7 Waivers 91 22.8 Variation 91 22.9 Cumulative rights 91 22.10 Attorneys 92 SCHEDULE 1 - GUARANTORS 93 SCHEDULE 2 - SUBSCRIBERS 94 SCHEDULE 3 - PRE-FUNDING CERTIFICATE 100 SCHEDULE 4 - DIRECTOR'S CERTIFICATE 102 SCHEDULE 5 - FUNDING NOTICE 103 SCHEDULE 6 - COMPLIANCE CERTIFICATE 105 SCHEDULE 7 - GROUP STRUCTURE DIAGRAM 106 EXECUTED AS AN AGREEMENT: 107 ANNEXURE A - GUARANTEE ASSUMPTION AGREEMENT -------------------------------------------------------------------------------- page 5 7 NTL Subscription Agreement 1 INTERPRETATION 111 2 GUARANTEE 111 3 REPRESENTATIONS AND WARRANTIES 112 4 STATUS OF GUARANTOR 112 5 GOVERNING LAW 112 6 BENEFIT OF DEED POLL 112 7 ADDRESS FOR NOTICES 112 8 ATTORNEYS 113 ANNEXURE B - SUBSTITUTION CERTIFICATE 1 INTERPRETATION 115 1.1 Incorporated definitions 115 1.2 Definitions 115 1.3 Interpretation 115 2 SUBSTITUTION 116 2.1 Effect of substitution 116 2.2 Substitute Subscriber a Subscriber 116 2.3 Preservation of accrued rights 116 2.4 Nature of rights and obligations 116 3 ACKNOWLEDGMENTS 117 3.1 Copies of Transaction Documents 117 3.2 Acknowledgment to Agent 117 4 PAYMENTS 117 4.1 Payments by Agent 117 4.2 As between Subscribers 117 -------------------------------------------------------------------------------- page 6 8 NTL Subscription Agreement 5 OUTSTANDING BILLS 117 6 WARRANTY 117 7 NOTICES 118 8 GENERAL 118 9 ATTORNEYS 118 -------------------------------------------------------------------------------- page 7 9 -------------------------------------------------------------------------------- THIS SUBSCRIPTION AGREEMENT is made on 2001 between the following parties: 1. NTL AUSTRALIA PTY LIMITED ACN 086 048 562 of Level 3, 655 Pacific Highway, St Leonards, NSW, 2065 (BORROWER) 2. EACH PARTY LISTED IN SCHEDULE 1 (each a GUARANTOR) 3. EACH PARTY LISTED IN SCHEDULE 2 (each a SUBSCRIBER) 4. CHASE SECURITIES AUSTRALIA LIMITED ACN 002 888 011 of Level 25, Grosvenor Place, 225 George Street, Sydney, NSW, 2000 (AGENT) 5. CHASE CAPITAL MARKETS FIDUCIARY SERVICES AUSTRALIA LIMITED ACN 002 916 396 of Level 35, AAP Centre, 259 George Street, Sydney, NSW, 2000 (SECURITY TRUSTEE) 6. CHASE SECURITIES AUSTRALIA LIMITED ACN 002 888 011 of Level 25, Grosvenor Place, 225 George Street, Sydney, NSW, 2000 (ARRANGER) RECITALS A. The Borrower and each Guarantor have requested the Subscribers to make available to the Borrower financial accommodation in the form of subscription for Debentures and to subscribe for Debentures. B. The Subscribers have agreed to provide financial accommodation to the Borrower in the form of subscription for Debentures and to subscribe for Debentures up to a maximum amount of $350,000,000 on the terms and conditions contained in this agreement. THE PARTIES AGREE in consideration of, among other things, the mutual promises contained in this agreement and the payment of $10 by the Finance Parties to each Guarantor. -------------------------------------------------------------------------------- 1 DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS In this agreement: ABC means The Australian Broadcasting Corporation, a corporation established by the Australian Broadcasting Corporation Act 1983; -------------------------------------------------------------------------------- page 1 10 NTL Subscription Agreement ABC ANALOGUE TSA means the Transmission Services Agreement dated 24 March 1999 between ABC and the Borrower (then known as National Transmission Company Pty Limited); ABC DIGITAL TSA means the Digital Terrestrial Television Transmission Services Agreement dated 6 December 2000 between ABC, the Borrower and NTL Incorporated; ABC TRIPARTITE DEED means the ABC Tripartite Deed to be entered into between ABC, the Borrower and the Security Trustee in accordance with clause 2.5; ACCOUNTING STANDARDS means the accounting standards and practices determined under clause 1.4; ACQUISITION AGREEMENT means the Acquisition Agreement (for the National Transmission Network) dated 18 March 1999 between the Commonwealth of Australia, NTL Australia Pty Limited (now NTL Australia Holdings Pty Limited), the Borrower (then known as National Transmission Company Pty Limited), NTL Communications Corporation and NTL Incorporated; AGGREGATE COMMITMENT means: (a) the Aggregate Tranche A Commitment; and (b) the Aggregate Tranche B Commitment; AGGREGATE TRANCHE A COMMITMENT means the maximum amount agreed to be provided by the Tranche A Subscribers under the Tranche A Facility, being: (a) until the Conditions Subsequent Satisfaction Date, $50,000,000; and (b) after the Conditions Subsequent Satisfaction Date, $150,000,000, or such other amount determined to be the Aggregate Tranche A Commitment under this agreement; AGGREGATE TRANCHE B COMMITMENT means the maximum amount agreed to be provided by the Tranche B Subscribers under the Tranche B Facility, being: (a) until the Conditions Subsequent Satisfaction Date, $150,000,000; and (b) after the Conditions Subsequent Satisfaction Date, $200,000,000, or such other amount determined to be the Aggregate Tranche B Commitment under this agreement; ASSOCIATE has the meaning given to that term in section 128F(9) of the Tax Act; ATTORNEY means an attorney appointed under a Transaction Document; AUTHORISATION includes: (a) any consent, registration, filing, agreement, notarisation, certificate, licence, approval, permit, authority or exemption from, by or with a Governmental Agency; or (b) any consent or authorisation regarded as given by a Governmental Agency due to the expiration of the period specified by a statute within which the Governmental Agency should have acted if it wished to proscribe or limit anything already lodged, registered or notified under that statute; AVAILABILITY PERIOD means, in relation to a Facility, the period commencing on the date of this agreement and ending at 2.00 pm (Sydney time) on the earlier of: -------------------------------------------------------------------------------- page 2 11 NTL Subscription Agreement (a) the Termination Date for the Facility; and (b) the date on which the Aggregate Commitment for that Facility is cancelled in full; BASE RATE means, on any Interest Set Date in respect of a Funding Period for a Funding Portion: (a) the rate percent per annum determined by the Agent which is equal to the "bid rate" quoted on the page entitled "BBSY" of the Reuters Monitor System at or about 10.15am (Sydney time) on that Interest Set Date for bank accepted Bills which have a tenor equal to or most closely approximating the Funding Period of the Funding Portion commencing on that Interest Set Date; or (b) if in respect of any Interest Set Date, the Base Rate cannot be determined in accordance with paragraph (a) of this definition, the rate percent per annum determined by the Agent as the average of the rates quoted to the Agent by at least 3 of the Reference Banks for the purchase of Bills accepted by the Reference Banks which have a tenor equal to or closely approximating the Funding Period of the Funding Portion and a face value amount equal to or closely approximating the amount of the Funding Portion; or (c) if in respect of any Interest Set Date, the Base Rate cannot be determined in accordance with paragraphs (a) or (b) of this definition, the rate percent per annum determined by the Agent in good faith to be the appropriate rate having regard to comparable indices then available in the then current bill market and then (if necessary) rounding up the resultant figure to four decimal places; BILL means a bill of exchange as defined in the Bills of Exchange Act 1909 (Cth), but does not include a cheque; BORROWER GROUP means the Borrower and its Subsidiaries; BUSINESS means the business of directly or indirectly owning and/or operating the Transmission Facilities, and any of the following: (a) directly or indirectly owning and/or operating any telephone, cable transmission or telecommunications facilities; and (b) directly or indirectly providing a service, product or content or related activity used in relation to the business referred to above; BUSINESS DAY means: (a) for the purposes of clause 22.4, a day on which banks are open for business in the city where the notice or other communication is received excluding a Saturday, Sunday or public holiday; and (b) for all other purposes, a day on which banks are open for business in Sydney excluding a Saturday, Sunday or public holiday; BUSINESS PLAN means the 8 year financial model prepared by the Borrower and set out in the Information Memorandum; COLLATERAL SECURITY means any present or future Encumbrance, Guarantee or other document or agreement created or entered into by a Transaction Party or any other person as security for the payment of any of the Secured Moneys; -------------------------------------------------------------------------------- page 3 12 NTL Subscription Agreement COMMITMENT means in relation to a Subscriber: (a) the Tranche A Commitment of the Subscriber; and (b) the Tranche B Commitment of the Subscriber; COMMITMENT FEE means the fee calculated and payable under clause 7.1 and 7.3; COMMONWEALTH TRIPARTITE DEED means the Tripartite Deed to be entered into between the Commonwealth of Australia, NTLH, the Borrower, the Agent and the Security Trustee in accordance with clause 2.5; COMPLIANCE CERTIFICATE means a certificate in the form of Schedule 6; CONDITIONS SUBSEQUENT SATISFACTION DATE means the first date on which each of the following conditions have been satisfied to the complete satisfaction of the Agent: (a) each of the Commonwealth Tripartite Deed, the SBS Tripartite Deed and the ABC Tripartite Deed have been executed and delivered by all parties to them (other than the Financing Parties) in form and substance acceptable to the Agent; (b) each Deed of Charge and the Share Mortgage has been executed and delivered by all parties to them (other than the Finance Parties) in form and substance acceptable to the Agent and: (1) duly stamped or, if the Agent permits, sufficient Same Day Funds or other provision to meet all liabilities to Tax on or in respect of them; and (2) where registrable, in registrable form together with all executed documents necessary to effect registration of them; and (c) the Agent has received a legal opinion from Freehills in form and substance acceptable to it in relation to the execution by the Transaction Parties of the documents referred to in paragraphs (a) and (b) above; CONTESTED TAX means a Tax payable by a Transaction Party where the Transaction Party: (a) in good faith and in accordance with proper procedures, is contesting its liability to pay that Tax; (b) is not required by applicable law to pay that Tax before contesting its liability to pay the Tax; and (c) has satisfied the Agent that it has set aside sufficient reserves of liquid assets to pay that Tax and any fine, penalty or interest payable if the contest is unsuccessful; CORPORATIONS LAW means the Corporations Law of each state or territory of Australia; CORPORATIONS REGULATIONS means the Corporations Regulations of each state or territory of Australia; DEBENTURE has the meaning as defined in the Debenture Trust Deed; DEBENTURE HOLDER has the meaning as defined in the Debenture Trust Deed; DEBENTURE TRUST DEED means the debenture trust deed dated on or about the date of this agreement between the Borrower and the Security Trustee; -------------------------------------------------------------------------------- page 4 13 NTL Subscription Agreement DEEDS OF CHARGE means each of: (a) each charge to be granted by the Borrower in accordance with clause 2.5 and identified as a Deed of Charge for the purposes of this agreement and the other Transaction Documents; and (b) the Guarantee Facility Charge; DEED OF FINANCIAL SECURITY means the Deed of Financial Security issued by The Chase Manhattan Bank in favour of the Australian Communications Authority dated 1 March 2001 pursuant to a Letter of Offer dated 28 February 2001 from The Chase Manhattan Bank to the Borrower; DISTRIBUTION means, in relation to a Transaction Party, if that Transaction Party: (a) declares or pays any dividend, distribution, Finance Charge (other than a Finance Charge payable to a Finance Party) or other amount on any Marketable Securities in it; or (b) applies any of its property or assets to, or set aside any sum for, the purchase, redemption or other reduction of, or for any other distribution in respect of, any Marketable Securities in it; or (c) reduces or attempts to reduce its capital; or (d) proposes to redeem or buy-back or makes an offer to redeem or buy-back any of its shares whether under an equal access scheme, an on-market buy-back, an employee share scheme buy-back or a selective buy-back (each as defined in the Corporations Law; or (e) pays any principal, interest or other amounts of any Subordinated Debt; or (f) pays any fee or charge under any management or technical assistance agreements or arrangements with any Related Corporation (including, without limitation, Management Fees but excluding, for the avoidance of doubt, expenses referred to in paragraph (f)(1) of the definition of Permitted Finance Debt); DOLLARS, A$ and $ means the lawful currency of the Commonwealth of Australia; EBITDA means in respect of a period, the Operating Profit of the Borrower Group for that period shown in the consolidated profit and loss statement of the Borrower Group for the period but adjusted so as to reflect the amount before accounting for: (a) Interest Expense of the Borrower Group in respect of the period; (b) taxation of the Borrower Group in respect of the period; (c) depreciation and amortisation expense of the Borrower Group in respect of the period; (d) any amounts in respect of the period for items of a non-recurring nature of the Borrower Group; ENCUMBRANCE means an interest or power: (a) reserved in or over an interest in any asset including, but not limited to, any retention of title; or (b) created or otherwise arising in or over any interest in any asset under a bill of sale, mortgage, charge, lien, pledge, trust or power, -------------------------------------------------------------------------------- page 5 14 NTL Subscription Agreement by way of security for the payment of a debt, any other monetary obligation or the performance of any other obligation, and includes, but is not limited to, any agreement to grant or create any of the above; ENVIRONMENTAL LAW means any law, whether statute or common law, concerning environmental matters, and includes but is not limited to law concerning land use, development, pollution, waste disposal, toxic and hazardous substances, conservation of natural or cultural resources and resource allocation including any law relating to exploration for, or development or exploitation of, any natural resource; ENVIRONMENTAL LIABILITIES means any obligation, expense, penalty or fine under Environmental Law which could be imposed upon a Finance Party or any occupier of the Secured Property as a result of activities carried on during the ownership or occupation of the property by a Transaction Party, or by the Transaction Party's predecessors in title or by any previous occupier of the Secured Property; EVENT OF DEFAULT means any event specified in clause 12.1; EXCLUDED TAX means a Tax imposed by any jurisdiction on the net income of a Finance Party but not a Tax: (a) calculated on or by reference to the gross amount of any payment (without allowance for any deduction) derived by a Finance Party under a Transaction Document or any other document referred to in a Transaction Document; or (b) imposed as a result of a Finance Party being considered a resident of or organised or doing business in that jurisdiction solely as a result of it being a party to a Transaction Document or any transaction contemplated by a Transaction Document; EXCLUDED SUBSIDIARY means, at any time, each Subsidiary of the Borrower at that time which: (a) has net assets of $500,000 or less; and (b) has net assets which do not, when added to the net assets of all other Subsidiaries of the Borrower which have not executed a Guarantee Assumption Agreement and a charge under clause 14.17 at or before that time, exceed $5,000,000; EXPOSURE means at any time: (a) in respect of a Subscriber, the total of all amounts due for payment, or which will or may become due for payment in connection with any Transaction Document (including any transactions contemplated by it) to that Subscriber; and (b) in respect of a Hedge Counterparty, the amount for which the Borrower would be liable at that time to that Hedge Counterparty in respect of each Hedging Agreement as if it had at that time been closed out or terminated, calculated (whether or not the Hedging Agreement is in fact in the form of, or based on, the ISDA Master Agreement) on a net basis under section 6(e)(i)(3) of the ISDA Master Agreement (unless the Hedging Agreement nominates section 6(e)(i)(4) of the ISDA Master Agreement to apply on termination, in which event that provision will apply), plus (without double counting) the aggregate of all amounts which have fallen due for payment -------------------------------------------------------------------------------- page 6 15 NTL Subscription Agreement to the Hedge Counterparty under the Hedging Agreement but not been paid; FACILITY means: (a) the Tranche A Facility; and (b) the Tranche B Facility; FEE LETTERS means: (a) the Commitment Letter dated 5 February 2001 issued by the Arranger to the Borrower and accepted and agreed by the Borrower; (b) the Fee Letter dated 16 February 2001 issued by the Arranger to the Borrower and accepted and agreed by the Borrower; (c) the Agency Fee Letter dated on or about the date of this agreement issued by the Agent and accepted and agreed by the Borrower; (d) the Security Trustee fee letter dated on or about the date of this agreement issued by the Security Trustee and accepted and agreed by the Borrower; FINANCE CHARGE means, in respect of the Borrower Group, interest and amounts in the nature of interest (without double counting), or having a similar purpose or effect to interest, which in accordance with Accounting Standards would be included in the consolidated profit and loss statement of the Borrower Group as having been paid or incurred by the Borrower Group and includes, but is not limited to: (a) any dividend payable on any share the obligations in respect of which constitute Finance Debt of the Borrower Group; (b) any discount on any Bills (other than Reliquefaction Bills) or bonds, notes or other instruments drawn, accepted or endorsed by the Borrower Group; (c) any line, facility, acceptance, discount, guarantee or other fees and amounts incurred on a regular or recurring basis payable in relation to Finance Debt of the Borrower Group; FINANCE DEBT means any debt or other monetary liability in respect of moneys borrowed or raised or any financial accommodation whatever including, but not limited to, under or in respect of any: (a) Bill, bond, debenture, note or similar instrument; (b) acceptance, endorsement or discounting arrangement; (c) Guarantee; (d) finance or capital Lease; (e) deferred purchase price (for more than 90 days) of any asset or service; (f) amount of capital and premium payable on or in connection with the redemption of any preference shares or any amount of purchase price payable for or in connection with the acquisition of redeemable preference shares; (g) net liability or other net exposure in respect of any interest rate swaps, foreign currency hedges or other derivatives, and irrespective of whether the debt or liability: -------------------------------------------------------------------------------- page 7 16 NTL Subscription Agreement (h) is present or future; (i) is actual, prospective, contingent or otherwise; (j) is at any time ascertained or unascertained; (k) is owed or incurred alone or severally or jointly or both with any other person; or (l) comprises any combination of the above; FINANCE LEASE means a Lease constituting, or accounted for in a similar way to, a finance lease or capitalised lease under the Accounting Standards; FINANCE LEASE CHARGE means the portion of hire and rental payments under a Finance Lease which exceeds the reduction of principal indebtedness attributable to that Finance Lease resulting from those payments and which in accordance with the Accounting Standards would be included in the consolidated profit and loss statement of the Borrower Group as having been paid or incurred by the Borrower Group; FINANCE PARTY means each of the following: (a) the Agent; (b) each Subscriber; (c) the Arranger; (d) the Security Trustee; (e) each Hedge Counterparty; and (f) the Guarantee Facility Provider; FINANCIAL REPORT has the same meaning given to that term in the Corporations Law; FUNDING DATE means the date on which a Funding Portion is, or is to be, provided or regarded as provided to the Borrower under this agreement by the subscription for Debentures, and by the paying up of unpaid amounts in relation to those Debentures; FUNDING NOTICE means a notice given, or to be given, under clauses 4.1 and 4.2; FUNDING PERIOD means a period for the fixing of interest rates for, and the funding of, a Funding Portion being a period of time selected under clause 4.6; FUNDING PORTION means, in relation to a Facility, each portion of the Aggregate Commitment provided under this agreement in relation to that Facility, by the subscription for Debentures, and by the paying up of unpaid amounts in relation to those Debentures, which has the same Funding Date and the same Funding Period; FUNDING RATE means in respect of an Interest Set Date for a Funding Period in respect of a Funding Portion under a Facility the rate per cent per annum which is the aggregate of: (a) the Margin for that Facility; and (b) the Base Rate on that Interest Set Date for that Funding Period; GEARING RATIO means, on any Relevant Date the ratio of: (a) Total Senior Debt on the Relevant Date; to -------------------------------------------------------------------------------- page 8 17 NTL Subscription Agreement (b) EBITDA for the quarter ending on the Relevant Date multiplied by four; GOVERNMENTAL AGENCY means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity; GST means the goods and services tax levied under A New Tax System (Goods and Services Tax) Act 1999 (GST ACT); GROUP STRUCTURE DIAGRAM means the group structure diagram contained in Schedule 7 as amended or updated by delivery of a new diagram to the Agent from time to time in accordance with clause 11.2(g); GUARANTEE means any guarantee, suretyship, letter of credit, legally binding letter of comfort or any other obligation (whatever called and of whatever nature): (a) to provide funds (whether by the advance or payment of money, the purchase of or subscription for shares or other securities, the purchase of assets or services, or otherwise) for the payment or discharge of; (b) to indemnify any person against the consequences of default in the payment of; or (c) to be responsible for, any debt or monetary liability of another person or the assumption of any responsibility or obligation in respect of the insolvency or the financial condition of any other person; GUARANTEE ASSUMPTION AGREEMENT means an agreement in the form of annexure A; GUARANTEE FACILITY CHARGE means the fixed and floating charge entitled Guarantee Facility Charge to be granted by the Borrower to the Security Trustee after the date of this agreement in relation to the Guarantee Facility as contemplated by clause 2.5; GUARANTEE FACILITY COMMITMENT means, at any time, the maximum amount of accommodation agreed to be provided by the Guarantee Facility Provider at that time under the Guarantee Facility, and which must not exceed $10,000,000 at any time; GUARANTEE FACILITY PROVIDER means National Australia Bank Limited; GUARANTEE FACILITY means the performance guarantee dated issued on 12 December 2000 by the Guarantee Facility Provider at the request of the Borrower in favour of ABC in respect of the Borrower's obligations under the ABC Digital TSA; GUARANTOR means: (a) each party specified in Schedule 1; and (b) upon its execution of a Guarantee Assumption Agreement, any person who executes a Guarantee Assumption Agreement; HEDGING AGREEMENT means an interest rate hedge agreement entered into with a Subscriber under clause 11.20, including any master agreement and any transaction or confirmation under it; HEDGE COUNTERPARTY means each Subscriber which is a counterparty to a Hedging Agreement with the Borrower; -------------------------------------------------------------------------------- page 9 18 NTL Subscription Agreement INFORMATION MEMORANDUM means the Information Memorandum dated February 2001 prepared by the Agent on the basis of information provided by the Borrower to assist with the syndication of the Facility; INITIAL DEBENTURES means, in relation to a Facility, the initial Debentures issued in relation to that Facility to the initial Debenture Holders on the first Funding Portion being provided under that Facility; INTANGIBLE ASSETS means all assets which are: (a) future tax benefits, patents, trade marks, goodwill; and (b) any other assets which in accordance with Accounting Standards are regarded as intangible assets; INTEREST COVER RATIO means: (a) on the first three Relevant Dates after the Signing Date; (1) EBITDA for the quarter ending on the Relevant Date; to (2) Senior Interest for the quarter ending on the Relevant Date; and (b) on any other Relevant Date, the ratio of: (1) EBITDA for the quarter ending on that Relevant Date multiplied by four; to (2) Senior Interest for the 12 month period ending on that Relevant Date; INTEREST EXPENSE means in respect of a period (without double counting), interest and amounts in the nature of interest, or having a similar purpose or effect to interest shown in the most recent consolidated profit and loss statement of the Borrower Group for the period as having been paid or incurred by the Borrower Group for the period and includes, but is not limited to: (a) any dividend payable on any share or stock the obligations in respect of which constitute Finance Debt of the Borrower Group; (b) any discount on any Bills or bonds, notes or other instruments drawn, accepted or endorsed by the Borrower Group; (c) any line, facility, acceptance, discount, guarantee or other fees and amounts incurred on a regular or recurring basis payable in relation to Finance Debt of the Borrower Group; and (d) Finance Lease Charges; and, for the avoidance of doubt, in determining Interest Expense in accordance with this definition, Interest Expense shall be calculated on a gross basis without taking into account any interest income of any member of the Borrower Group; INTEREST PAYMENT DATE means the last day of a Funding Period; INTEREST SET DATE means, in relation to a Funding Period for a Funding Portion, the first day of that Funding Period; KEY ELEMENT means: (a) a Key Element (as defined in the SBS Analogue TSA, the ABC Analogue TSA or the ABC Digital TSA); and -------------------------------------------------------------------------------- page 10 19 NTL Subscription Agreement (b) the technical characteristics and parameters set out in Schedule 1 to the SBS Analogue TSA Extension or the SBS Digital TSA; LEASE means an agreement or arrangement under which any property is or may be used, operated or managed: (a) by a person other than the owner; or (b) for or on behalf of the owner or another person by a person other than the owner where that last-mentioned person or one of its Related Corporations is required to make or assume minimum periodic payments, including, but not limited to, a lease, charter, hire purchase or hiring arrangement but excluding agreements under which the manager of a joint venture on behalf of the joint venturers uses assets owned by the joint venturers; LENDING OFFICE means in respect of a Subscriber the office of that Subscriber set out opposite its name in Schedule 2 or such other office as notified by the Subscriber under this agreement; LEVERAGE RATIO means, on any date, Total Senior Debt of the Borrower Group on that date divided by the aggregate of: (a) Total Senior Debt of the Borrower Group on that date; and (b) Shareholder Equity on that date; MAJORITY SUBSCRIBERS means: (a) if no Event of Default subsists, those Subscribers whose Commitments (added, in the case of the Guarantee Facility Provider, to the Guarantee Facility Commitment of the Guarantee Facility Provider) aggregate more than two thirds of the Aggregate Commitments and the Guarantee Facility Commitment or, if either of the Aggregate Tranche A Commitment or the Aggregate Tranche B Commitment is cancelled, Subscribers to whom more than two thirds of the Principal Outstanding (added, in the case of the Guarantee Facility Provider, to the Guarantee Facility Commitment of the Guarantee Facility Provider) is owing; (b) if an Event of Default subsists, those Subscribers and Hedge Counterparties the exposure to whom exceeds two thirds of the total Exposure to all Subscribers and Hedge Counterparties; MANAGEMENT FEE means any management fee incurred by the Borrower before the Signing Date and interest accrued on that management fee before the Signing Date in respect of management or technical assistance agreements or arrangements with any Related Corporation; MARGIN means the rate per cent per annum calculated under clause 7.3; MARKETABLE SECURITIES has the meaning given to that expression in the Corporations Law; MASTER DEBENTURE has the meaning as defined in the Debenture Trust Deed; MATERIAL ADVERSE EFFECT means, in the opinion of the Agent acting on the instructions of the Majority Subscribers, a material adverse effect upon: (a) the business, assets, operations, material contracts (taken as a whole) or condition, financial or otherwise, of the NTL Parties taken as a whole; -------------------------------------------------------------------------------- page 11 20 NTL Subscription Agreement (b) the ability of a Transaction Party to perform any of its obligations under a Transaction Document; (c) the validity or enforceability of a Transaction Document; MATERIAL DOCUMENTS means: (a) the Acquisition Agreement; (b) the ABC Analogue TSA; (c) the ABC Digital TSA; (d) the SBS Analogue TSA; (e) the SBS Digital TSA; (f) the SBS Analogue TSA Extension; (g) the Operations and Maintenance Agreement; NTLH means NTL Australia Holdings Pty Limited (ACN 086 459 127); NTL PARTY means each Transaction Party other than NTLH; NTLT means NTL Telecommunications Holdings Pty Limited (ACN 093 979 223); NTL TELECOMMUNICATIONS means NTL Telecommunications Pty Limited (ACN 093 095 419) OFFICER means: (a) in relation to a Transaction Party, a director or a secretary, or a person notified to be an authorised officer, of the Transaction Party; (b) in relation to a Finance Party, any officer, as that expression is defined in the Corporations Law, of that Finance Party, any person whose title includes the word "Director", "Managing Director", "Manager" or "Vice President", and any other person appointed by the Security Trustee to act as its authorised officer for the purposes of this Agreement; and (c) in relation to a Receiver or an Attorney which is a corporation, any officer, as that expression is defined in the Corporations Law, of that Receiver or Attorney; OPERATING PROFIT means, in respect of a period, the operating profit of the Borrower Group which in accordance with Accounting Standards is or would be shown in a consolidated profit and loss statement of the Borrower Group for that period; OPERATIONS AND MAINTENANCE AGREEMENT means the Operations and Maintenance Agreement dated 4 June 1999 between the Borrower (then known as National Transmission Company Pty Limited) and TVNZ (Australia) Pty Limited; OVERDUE MARGIN means 2%; OVERDUE RATE means the aggregate of: (a) the Overdue Margin; and (b) the applicable Margin as at the relevant date on which the Overdue Rate is calculated under clause 17; and -------------------------------------------------------------------------------- page 12 21 NTL Subscription Agreement (c) the Base Rate on the relevant date on which the Overdue Rate is calculated under clause 17, such Base Rate to be determined by the Agent in accordance with the definition of Base Rate in this clause 1.1 except that in making such determination all references in that definition: (1) to "Funding Period" shall be references to a period of 30 days; (2) to "Interest Set Date" shall be to the relevant date on which the Overdue Rate is calculated under clause 17; (3) to "Funding Portion" shall be to the relevant overdue amount; PAID UP AMOUNT means, in relation to a Debenture, the aggregate of the amounts paid up on that Debenture, as recorded in the Register; PAYMENT CURRENCY means the currency in which any payment is actually made; PERMITTED DISPOSALS means: (a) disposals in the ordinary course of business on arms length terms; (b) a disposal of assets to any Security Provider other than NTLH; (c) a disposal of assets for the purposes of replacement of those assets with assets which are of equal or superior value or capability; (d) disposals of Sites: (1) which in aggregate, have a book value of not more than $25,000,000; and (2) which would not have a Material Adverse Effect; (e) disposals made in connection with a Permitted Securitisation; (f) disposals made with the consent of the Agent (acting on instructions of the Majority Subscribers); (g) disposals of assets otherwise permitted under and in accordance with the Transaction Documents; PERMITTED DISTRIBUTION means a Distribution to the extent that the following conditions remain satisfied: (a) no Event of Default or Potential Event of Default subsists before the Distribution is made; (b) no Event of Default or Potential Event of Default would occur as a result of the Distribution being made, including, without limitation, under clause 11.21; and (c) on the most recent Relevant Date occurring before the Distribution is made the Gearing Ratio for the immediately preceeding quarter was less than 4.50:1 or other level agreed by the Agent acting on the instructions of the Majority Subscribers; (d) immediately after the Permitted Distribution is made the Post Distribution Gearing Ratio would be less than 4.50:1 or other level agreed by the Agent acting on the instructions of the Majority Subscribers; (e) immediately after the Permitted Distribution is made the Leverage Ratio would not be greater than 40%; -------------------------------------------------------------------------------- page 13 22 NTL Subscription Agreement (f) where the Distribution is a payment of Subordinated Debt on any date (PAYMENT DATE), the proportion of the Distribution applied to pay interest on the Subordinated Debt which has been capitalised after the Signing Date is no more than the ratio of: (1) interest on the Subordinated Debt which has been capitalised after the Signing Date but before the Distribution is made on the Payment Date; to (2) the principal amount of Subordinated Debt on the Payment Date before the Distribution is made (excluding interest on the Subordinated Debt which has been capitalised after the Signing Date); and (g) where the Distribution is a payment of the Management Fee, payment of the Distribution, when added to all previous Distributions which comprised a payment of the Management Fee, will not cause the aggregate of all Distributions applied in payment of the Management Fee to exceed $12,000,000; PERMITTED ENCUMBRANCE means: (a) every lien created by operation of law securing an obligation that is not yet due; (b) every lien for the unpaid balance of purchase moneys under an instalment contract entered into in the ordinary course of business; (c) every lien for the unpaid balance of moneys owing for repairs; (d) each Security; (e) Encumbrances under Material Documents; (f) a banker's lien or right of set off or combination arising by operation of law or practice over money deposited with a banker in the ordinary course of business; (g) the Set Off Letter; (h) in relation to a member of the Borrower Group, each title retention arrangement entered into by that member of the Borrower Group in the ordinary course of business but only for the period that person complies with all its obligations in relation to those title retention arrangements including the payment of all moneys payable when due, (i) Encumbrances securing the repayment of Finance Debt under performance bond facilities which replace the Guarantee Facility which are limited in aggregate to secure an amount not exceeding $10,000,000, which affects or relates to any of the assets of any member of the Borrower Group; PERMITTED FINANCE DEBT means: (a) Subordinated Debt; (b) indebtedness arising under transactional banking facilities and arrangements; (c) indebtedness under finance leases in respect of motor vehicles and office equipment for the Borrower Group up to an aggregate amount at any time of $5,000,000; -------------------------------------------------------------------------------- page 14 23 NTL Subscription Agreement (d) indebtedness in respect of performance bond facilities which replace the Guarantee Facility up to an aggregate amount of $10,000,000; (e) indebtedness in respect of the Deed of Financial Security up to an aggregate amount of $10,000,000; (f) indebtedness of a member of the Borrower Group to a Related Corporation in respect of expenses incurred by the Related Corporation on behalf of a member of the Borrower Group for goods or personnel provided to a member of the Borrower Group at cost by the Related Corporation where: (1) those expenses were incurred on an arm's length basis and in the ordinary course of business; and (2) payment or reimbursement of those expenses would not constitute a Distribution; (g) indebtedness to Related Corporations in respect of the Management Fee which does not exceed $12,000,000 in aggregate at any time; (h) trade or similar indebtedness incurred in the ordinary course of ordinary business; (i) indebtedness arising pursuant to the Transaction Documents; (j) any other indebtedness incurred with the prior written consent of the Agent; PERMITTED SECURITISATION means: (a) a securitisation of receivables under the SBS Analogue TSA, the SBS Analogue TSA Extension or the ABC Analogue TSA, subject to consent of the Agent acting on the instructions of the Majority Subscribers, such consent not to be unreasonably withheld, where all amounts received by the Borrower in connection with the securitisation are applied as a prepayment first of the Principal Outstanding under the Tranche B Facility and second as a prepayment of Principal Outstanding under the Tranche A Facility; or (b) a securitisation of receivables under any other contract with the consent of the Agent acting on the instructions of all Subscribers; POST DISTRIBUTION GEARING RATIO means, on any date in relation to a Permitted Distribution, the ratio of: (a) Total Senior Debt on that date (including any Funding Portion provided for the purpose of making the relevant Permitted Distribution); to (b) EBITDA for the quarter ending on the last Relevant Date multiplied by four; POTENTIAL EVENT OF DEFAULT means any thing which would be likely to become an Event of Default after the giving of notice, the expiration of time, the satisfaction of any condition, or any combination of the above; POWER means any right, power, authority, discretion or remedy conferred on a Finance Party, or a Receiver or an Attorney by any Transaction Document or any applicable law; PRINCIPAL OUTSTANDING means, in relation to a Facility at any time, the aggregate outstanding paid up amounts of all Debentures issued in relation to that Facility at that time; -------------------------------------------------------------------------------- page 15 24 NTL Subscription Agreement PRO RATA SHARE means in relation to a Subscriber and a Facility, the Commitment of that Subscriber for that Facility expressed as a percentage of the aggregate Commitments of the Subscribers for that Facility; RECEIVER means a receiver or receiver and manager appointed under a Security; REFERENCE BANK means any one of The Chase Manhattan Bank Limited, Westpac Banking Corporation, National Australia Bank Limited, Commonwealth Bank of Australia and Australia and New Zealand Banking Group Limited or such other person as the Agent may select in consultation with the Borrower; REGISTER has the meaning as defined in the Debenture Trust Deed; RELATED CORPORATION means: (a) in the case of a Finance Party a "related body corporate" as that expression is defined in the Corporations Law (on the basis that the term "subsidiary" in that definition has the same meaning as in this agreement); and (b) in the case of a Transaction Party a "related body corporate" as that expression is defined in the Corporations Law (on the basis that the term "subsidiary" in that definition has the same meaning as in this agreement) and includes a body corporate which is at any time after the date of this agreement a "related body corporate" but ceases to be a "related body corporate" because of an amendment, consolidation or replacement of the Corporations Law; RELEVANT CURRENCY means the currency in which a payment is required to be made under the Transaction Documents and, if not expressly stated to be another currency, is Dollars; RELEVANT DATE means each 31 March, 30 June, 30 September and 31 December; RELEVANT PERIOD means each period listed under the headings "Relevant Period" in clause 11.21; RELIQUEFACTION BILL means a Bill drawn under clause 8; RETIRING SUBSCRIBER means a Subscriber who has assigned or transferred any of its rights or obligations under clause 19.3; REVIEW EVENT has the meaning given to that term in clause 12.3; SAME DAY FUNDS means immediately available and freely transferable funds; SBS means Special Broadcasting Service Corporation, a body corporate preserved and contained in existence by the Special Broadcasting Service Act 1999; SBS ANALOGUE TSA means the Transmissions Services Agreement dated 30 April 1999 between SBS and the Borrower (then known as National Transmission Company Pty Limited); SBS ANALOGUE TSA EXTENSION means the Heads of Agreement - Transmission Services Agreement (Analogue Extension) dated 12 July 2000 between SBS, the Borrower and NTL Incorporated; SBS DIGITAL TSA means the Heads of Agreement - Digital Television Services No. 1 dated 8 March 2000 between SBS, the Borrower and NTL Incorporated; SBS TRIPARTITE DEED means the SBS Tripartite Deed to be entered into between SBS, the Borrower and the Security Trustee in accordance with clause 2.5; -------------------------------------------------------------------------------- page 16 25 NTL Subscription Agreement SECURED MONEYS means all debts and monetary liabilities of the Transaction Parties (or any of them) to the Finance Parties (or any of them) in any capacity under or in relation to any Transaction Document, irrespective of whether the debts or liabilities: (a) are present or future; (b) are actual, prospective, contingent or otherwise; (c) are at any time ascertained or unascertained; (d) are owed or incurred by or on account of a Transaction Party alone, or severally or jointly with any other person; (e) are owed to or incurred for the account of any Finance Party alone, or severally or jointly with any other person; (f) are owed to any other person as agent or trustee (whether disclosed or not) for or on behalf of any Finance Party; (g) are owed or incurred as principal, interest, fees, charges, taxes, duties or other imposts, damages (whether for breach of contract or tort or incurred on any other ground), losses, costs or expenses, or on any other account; (h) are owed to or incurred for the account of any Finance Party directly or as a result of: (1) the assignment or transfer to any Finance Party of any debt or liability of a Transaction Party (whether by way of assignment, transfer or otherwise); or (2) any other dealing with any such debt or liability; (i) are owed to or incurred for the account of a Finance Party before the date of this agreement, before the date of any assignment of this agreement to any Finance Party by any other person or otherwise; or (j) comprise any combination of the above; SECURED PROPERTY means the property subject to a Security; SECURITY means: (a) the Deeds of Charge; (b) the Share Mortgage; and (c) any other Encumbrance which secures the Secured Money; SECURITY PROVIDER means a person who has granted a Security; SENIOR INTEREST means for any period, all Interest Expense payable under the Total Senior Debt for that period; SET OFF LETTER means the Letter of Set Off from the Borrower to The Chase Manhattan Bank dated 28 February 2001 in relation to the Deed of Financial Security; SHAREHOLDER EQUITY means, on any date the aggregate of: (a) the paid-up share capital of the Borrower Group on that date calculated on a consolidated basis; -------------------------------------------------------------------------------- page 17 26 NTL Subscription Agreement (b) all Subordinated Debt on that date (excluding any interest which is capitalised after the Signing Date under or in relation to the Subordinated Debt); and (c) any portion of the Management Fee which remains unpaid on that date; SHARE MORTGAGE means the share mortgage to be granted by NTLH to the Security Trustee over all of the shares in the Borrower; SIGNING DATE means the date of this agreement; SITE means a Site as defined in any Material Document; SUBORDINATED DEBT means: (a) all Finance Debt which is subordinated under the Subordination Deed; and (b) other Finance Debt which is subordinated on terms acceptable to the Agent; SUBORDINATION DEED means the Subordination Deed dated on or about the date of this agreement between the Security Trustee, the Borrower and the Subordinated Lender; SUBORDINATED LENDER means NTL Australia SPV, Inc. a company incorporated in Delaware, USA; SUBSCRIBERS means: (a) the Tranche A Subscribers; (b) the Tranche B Subscribers; SUBSIDIARY means in relation to a corporation: (a) a subsidiary of the corporation for the purposes of the Corporations Law; (b) if the corporation has appointed or is in a position to appoint one or more directors of another corporation and that director or those directors are in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a meeting of directors of that other corporation - that other corporation; SUBSTITUTE SUBSCRIBER means a person substituted by a Subscriber under it in clause 19.3 for any part of the Subscriber's participation under this agreement; TAX means: (a) any tax, including the GST, levy, charge, impost, duty, fee, deduction, compulsory loan or withholding; or (b) any income, stamp or transaction duty, tax or charge, which is assessed, levied, imposed or collected by any Governmental Agency and includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed on or in respect of any of the above; TAX ACT means the Income Tax Assessment Act 1936 of the Commonwealth of Australia; TAX INVOICE includes any document or record treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit; TECHNICAL ADVISER means Structel Pty Limited (ACN 064 274 835); -------------------------------------------------------------------------------- page 18 27 NTL Subscription Agreement TERMINATION DATE means in the case of both the Tranche A Facility and the Tranche B Facility, 5 years from the date of this agreement; TITLE DOCUMENT means any original, duplicate or counterpart certificate or document of title including, but not limited to, any real property certificate of title or any share certificate; TOTAL SENIOR DEBT means on any date, all Finance Debt of the Borrower Group on that date other than Subordinated Debt on that date; TRANCHE A FACILITY means the facility made available by the Tranche A Subscribers to the Borrower under clause 5; TRANCHE B FACILITY means the facility made available by the Tranche B Subscribers to the Borrower under clause 6; TRANCHE A COMMITMENT means in relation to a Subscriber: (a) until the Conditions Subsequent Satisfaction Date, the amount specified as the Tranche A Commitment of the Subscriber in part A of schedule 2; (b) after the Conditions Subsequent Satisfaction Date, the amount specified as the Tranche A Commitment of the Subscriber in part B of schedule 2; TRANCHE B COMMITMENT means in relation to a Subscriber: (a) until the Conditions Subsequent Satisfaction Date, the amount specified as the Tranche B Commitment of the Subscriber in part A of schedule 2; (b) after the Conditions Subsequent Satisfaction Date, the amount specified as the Tranche B Commitment of the Subscriber in part B of schedule 2; TRANCHE A SUBSCRIBERS means the Subscribers listed in schedule 2 as Tranche A Subscribers and any person who is a Substitute Subscriber in relation to the Tranche A Facility; TRANCHE B SUBSCRIBERS means the Subscribers listed in schedule 2 as Tranche B Subscribers and any person who is a Substitute Subscriber in relation to the Tranche B Facility; TRANSACTION DOCUMENT means: (a) this agreement; (b) each Fee Letter; (c) the Debenture Trust Deed; (d) each Master Debenture; (e) each Security; (f) a Guarantee Assumption Agreement; (g) a Collateral Security; (h) each Hedging Agreement; (i) the Subordination Deed; (j) each Tripartite Deed; or any document or agreement entered into or given under any of the above; -------------------------------------------------------------------------------- page 19 28 NTL Subscription Agreement TRANSACTION PARTY means: (a) the Borrower; (b) each Guarantor; (c) each Security Provider; TRANSMISSION FACILITY means a Transmission Facility as defined in any Material Document; TRIPARTITE DEED means each of: (a) the ABC Tripartite Deed; (b) the SBS Tripartite Deed; (c) the Commonwealth Tripartite Deed; UNDRAWN COMMITMENT means: (a) the Undrawn Tranche A Commitment; (b) the Undrawn Tranche B Commitment; UNDRAWN TRANCHE A COMMITMENT means, at any time, the Aggregate Tranche A Commitment at that time less the Principal Outstanding under the Tranche A Facility at that time; UNDRAWN TRANCHE B COMMITMENT means, at any time, the Aggregate Tranche B Commitment at that time less the Principal Outstanding under the Tranche B Facility at that time. 1.2 INTERPRETATION In this agreement, headings and boldings are for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires: (a) words importing the singular include the plural and vice versa; (b) words importing a gender include any gender; (c) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning; (d) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Governmental Agency; (e) a reference to any thing (including, but not limited to, any right) includes a part of that thing but nothing in this clause 1.2(e) implies that performance of part of an obligation constitutes performance of the obligation; (f) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this agreement and a reference to this agreement includes any annexure, exhibit and schedule; (g) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute -------------------------------------------------------------------------------- page 20 29 NTL Subscription Agreement includes all regulations, proclamations, ordinances and by-laws issued under that statute; (h) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document; (i) a reference to liquidation includes official management, appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or a similar procedure or, where applicable, changes in the constitution of any partnership or person, or death; (j) a reference to a party to any document includes that party's successors and permitted assigns; (k) a reference to an agreement other than this agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing; (l) a reference to an asset includes all property of any nature, including, but not limited to, a business, and all rights, revenues and benefits; (m) a reference to a document includes any agreement in writing, or any certificate, notice, instrument or other document of any kind; (n) no provision of this agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision; (o) a reference to the drawing, accepting, endorsing or other dealing with or of a Bill refers to a drawing, accepting, endorsing or dealing within the meaning of the Bills of Exchange Act 1909 (Cth); and (p) a reference to a body, other than a party to this agreement (including, without limitation, an institute, association or authority), whether statutory or not: (1) which ceases to exist; or (2) whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions. 1.3 BUSINESS DAY Subject to clause 9.2 and clause 4.6(c), where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next succeeding Business Day. 1.4 ACCOUNTING STANDARDS (a) In respect of any accounting practice relevant to this agreement, the following accounting standards apply: (1) the accounting standards required under the Corporations Law; -------------------------------------------------------------------------------- page 21 30 NTL Subscription Agreement (2) if no accounting standard applies under the Corporations Law in relation to an accounting practice, the standards acceptable to the Australian Accounting Standards Board, including: (A) the Australian Accounting Concepts; (B) the Australian Accounting Standards; (C) Urgent Issues Group Consensus Views; (D) Accounting Interpretations; (E) Accounting Bulletins; and (3) if no accounting standard applies under clause 1.4(a)(1) or 1.4(a)(2), the accounting practice agreed between the parties and, failing agreement, the accounting practice determined under clause 1.4(b). (b) If the parties do not agree under clause 1.4(a)(3), the matter must be referred within 3 Business Days to the President of the Institute of Chartered Accountants in Australia or his nominee for determination of the appropriate accounting practice. Any party may make the referral under this clause 1.4(b). (c) A determination under clause 1.4(b) is final and binding on the parties. (d) The Borrower must bear the costs of the referral and determination under clause 1.4(b) unless the determination made under clause 1.4(b) is in all material respects consistent with the accounting practice applied by the Borrower before referral under clause 1.4(b), in which case the costs of referral and determination must be borne by the Finance Parties. 1.5 ISSUE OF DEBENTURES References in the Transaction Documents to the issue of Debentures are references to the issue of the Master Debenture to which those Debentures relate and to the recording in the Register of the details of those Debentures and the Debenture Holders of those Debentures. ------------------------------------------------------------------------------- 2 CONDITIONS PRECEDENT 2.1 CONDITIONS PRECEDENT TO INITIAL FUNDING PORTION A Subscriber is not obliged to provide its Commitment until the Agent has received all of the following in form and of substance satisfactory to the Agent: (a) PRE-FUNDING CERTIFICATE: a certificate in the form of schedule 3 dated not more than 7 days before the first Funding Date, given in respect of each Transaction Party which is, or on the first Funding Date will be, a party to a Transaction Document, together with all attachments referred to in the certificate; (b) TRANSACTION DOCUMENTS: copies of each Transaction Document (other than each Security and the Tripartites) which is, or on the first Funding Date is required by the Agent to be, executed, duly executed by all parties to them other than the Finance Parties and, where applicable: -------------------------------------------------------------------------------- page 22 31 NTL Subscription Agreement (1) duly stamped or, if the Agent permits, sufficient Same Day Funds or other provision to meet all liabilities to Tax on or in respect of them; and (2) where registrable, in registrable form together with all fully executed documents and other things necessary to effect registration of them including, but not limited to, form 309 under the Corporations Regulations and a certificate complying with section 265(4)(b) of the Corporations Law or, if the Agent consents, a written undertaking from the relevant Transaction Party that a certificate complying with section 265(4)(b) of the Corporations Law will be provided to the Agent within 7 days after the relevant Security is duly stamped; (c) MATERIAL DOCUMENTS: copies of each Material Document duly executed by all parties to them and, where applicable, duly stamped, or if not duly stamped, evidence satisfactory to the Agent that they will be duly stamped; (d) TECHNICAL ADVISER'S REPORT: a report from the Technical Adviser in relation to the Transmission Facilities; (e) ACCOUNTS: a copy of: (1) the audited Financial Report for the Borrower Group for the period ending 31 December 1999; (2) the audited management accounts for the Borrower Group for the financial year ending 31 December 2000;` (f) DECLARATION OF SOLVENCY AND RELATED PARTIES: before, but not earlier than 2 Business Days before execution by a Transaction Party of any Transaction Document, a certificate in relation to the Transaction Party in the form of schedule 4 signed by a director of the Transaction Party; (g) ENQUIRIES: results of searches, enquiries and requisitions in respect of each Transaction Party and the Secured Property; (h) INSURANCE: evidence that each Transaction Party has complied with clause 11.19; (i) BUSINESS PLAN: a copy of the Business Plan; (j) FEES AND EXPENSES: evidence that all fees and expenses due and payable by a Transaction Party under the Transaction Documents have been paid or will be paid on the first Funding Date out of the proceeds of the first Funding Portion; (k) NO MATERIAL ADVERSE CHANGE: no event or change has occurred since the end of the most recent financial year for which audited Financial Statements have been provided to the Agent in relation to a Transaction Party that has had or is likely to have a Material Adverse Effect; (l) FINANCIAL MODEL AUDIT: a financial model audit report from an independent auditor acceptable to the Agent, confirming the mathematical integrity of the financial model contained in the Business Plan; (m) LITIGATION: no litigation has commenced or is threatened which has had or is likely to have a Material Adverse Effect; -------------------------------------------------------------------------------- page 23 32 NTL Subscription Agreement (n) LEGAL OPINION: a legal opinion from Freehills in relation to such matters about the Transaction Parties and the Transaction Documents as the Agent may require, including the execution by the Transaction Parties of the Transaction Documents and the enforceability of the Transaction Documents; (o) SUBORDINATION DEED: a legal opinion from legal counsel reasonably acceptable to the Agent in relation to the Subordinated Lender and the Subordination Deed; (p) OTHER INFORMATION: any other information or document which the Agent reasonably requests before the Signing Date in relation to the Transaction Parties, the Transaction Documents and the Material Documents. 2.2 CONDITIONS PRECEDENT TO ALL FUNDING PORTIONS A Subscriber is not obliged to provide any Funding Portion, or its Pro Rata Share of any Funding Portion, until the following conditions are fulfilled to the entire satisfaction of the Agent: (a) FUNDING NOTICE: the Borrower has delivered a Funding Notice to the Agent in respect of the Funding Portion in accordance with clause 4.2; (b) FUNDING DATE: the Funding Date for the Funding Portion is a Business Day within the Availability Period; (c) COMMITMENT: the Commitment of that Subscriber under the relevant Facility to which the Funding Portion relates is not, nor will be, exceeded by the provision of the Funding Portion; (d) NO DEFAULT: no Event of Default or Potential Event of Default has occurred and is continuing and no Event of Default or Potential Event of Default would result from the proposed Funding Portion being provided; (e) WARRANTIES CORRECT: each representation and warranty contained in clause 10 and which is expressed to be repeated on a Funding Date is true and correct in all material respects and not misleading in a material respect on and as of the proposed Funding Date as if it had been made on and as of that date in respect of the facts and circumstances existing at that time; (f) AUTHORISATIONS: the Agent has received all Authorisations required for the provision of the Funding Portion and all other documents which it has reasonably requested the Borrower to provide and each is in full force and effect and each statement contained in them is true and complete; (g) RELEVANT LAWS: the execution, delivery and performance by any Transaction Party of any Transaction Document, and the provision of the Funding Portion, has not and will not violate, breach or result in a contravention of any law, regulation or Authorisation; and (h) TRANCHE A: in the case of a Funding Portion requested under the Tranche A Facility for the purpose specified in clause 3.3(a)(3), the Borrower has delivered to the Agent a certificate signed by two directors of the Borrower certifying that, after the relevant Funding Portion has been provided, the directors have formed the view that the Borrower will have sufficient funds available to it under the then undrawn portion of the Tranche A Facility to -------------------------------------------------------------------------------- page 24 33 NTL Subscription Agreement enable the Borrower to meet its financial obligations and planned capital expenditure requirements for the immediately following 12 month period. 2.3 CERTIFIED COPIES An Officer of the relevant Transaction Party must certify a copy of a document given to a Finance Party under clauses 2.1 or 2.2 to be a true and up-to-date copy of the original document as at a date not more than 7 days before the date it is given to the Finance Party. 2.4 SUBSCRIBER'S CONDITIONS PRECEDENT A condition in this clause 2 is for the benefit only of the Finance Parties and only the Agent may waive it. 2.5 CONDITIONS SUBSEQUENT (a) The Borrower must use its best endeavours to procure that: (1) the Commonwealth enters into the Commonwealth Tripartite Deed; (2) SBS enters into the SBS Tripartite Deed; (3) ABC enters into the ABC Tripartite Deed; in each case in a form acceptable to the Agent (acting on instructions of all Subscribers), promptly after the Signing Date. (b) The Borrower must enter into the Guarantee Facility Charge and into a charge or charges to secure the Secured Moneys over all of the Borrower's assets in form and substance satisfactory to the Agent promptly after the Commonwealth has executed the Commonwealth Tripartite Deed under clause 2.5(a). (c) NTLH must enter into the Share Mortgage promptly after the Commonwealth has executed the Commonwealth Tripartite Deed under clause 2.5(a). (d) If the Tripartite Deeds, the Share Mortgage and the Deeds of Charge have not been executed and delivered by all parties (other than the Finance Parties) in a form acceptable to the Agent (acting on the instructions of all Subscribers) before 31 May 2001, the Borrower must repay the Secured Moneys in full on demand by the Agent in accordance with this agreement. ------------------------------------------------------------------------------ 3 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY 3.1 PROVISION OF COMMITMENT Subject to this agreement, each Subscriber must make its Commitment available to the Borrower under this agreement. -------------------------------------------------------------------------------- page 25 34 NTL Subscription Agreement 3.2 SEVERAL OBLIGATIONS AND RIGHTS OF SUBSCRIBERS The obligations and rights of the Subscribers under this agreement and each other Transaction Document are several and: (a) failure of a Subscriber to perform its obligations does not relieve any other Subscriber from any of its obligations; (b) no Subscriber is responsible for the obligations of any other Subscriber or the Agent (unless it is the Agent); and (c) subject to each Transaction Document each Subscriber may separately enforce its rights under any Transaction Document. 3.3 PURPOSE (a) The Borrower must only use the proceeds of a Funding Portion provided under the Tranche A Facility for the following purposes: (1) for general corporate purposes in connection with the Business; (2) to subscribe for shares in or to make loans to: (A) NTLT; or (B) NTLH, in order to subscribe for shares in or makes loans to NTLT or NTL Telecommunications; or (C) NTL Telecommunications, but only up to a maximum aggregate amount of $80,000,000; (3) to make a Permitted Distribution; or (4) for any other purpose agreed to by the Agent acting on the instructions of the Majority Subscribers. (b) The Borrower must only use the proceeds of a Funding Portion provided under the Tranche B Facility: (1) to repay the principal sum of $140,180,018 under the interest free promissory note issued on 24 November 2000 by the Borrower to the Subordinated Lender; (2) to repay amounts payable to the Subordinated Lender under working capital facilities provided by the Subordinated Lender to the Borrower up to a maximum amount of $15,100,000; (3) to repay principal and accrued interest under the promissory note having a principal sum of $300,000,000 issued on 30 April 1999 by the Borrower to the Subordinated Lender (whether or not the promissory note is repaid in full), but only so that the aggregate amount repaid or prepaid under clause 3.3(b)(1), (2) and (3) does not exceed the Aggregate Tranche B Commitment. (c) At the request of the Agent from time to time, the Borrower must provide a certificate to the Agent within 5 Business Days of such a request being made, confirming that it has complied with clause 3.3(a) and 3.3(b). -------------------------------------------------------------------------------- page 26 35 NTL Subscription Agreement 3.4 CANCELLATION OF COMMITMENT DURING AVAILABILITY PERIOD (a) The Borrower may at any time during the Availability Period for a Facility cancel all or part of the Undrawn Commitment for that Facility by giving the Agent at least 3 Business Days' prior notice. (b) A partial cancellation of the Undrawn Commitment for a Facility may only be made in a minimum amount of $1,000,000 and in an integral multiple of $1,000,000. (c) The undrawn Commitment of a Subscriber under a Facility is cancelled to the extent of its Pro Rata Share of the Undrawn Commitment for that Facility which is cancelled under this clause 3.4. (d) The face value amount of the Debenture held by a Subscriber for a Facility is reduced by its Pro Rata Share of the Undrawn Commitment for that Facility which is cancelled under this clause 3.4, as evidenced by the Register. (e) A notice given under clause 3.4(a) is irrevocable. (f) The Register will be updated by the Security Trustee on each occasion that a cancellation is made under this clause 3.4 to reflect the revised face value amounts of the relevant Debentures held by the relevant Subscribers. 3.5 CANCELLATION AT END OF AVAILABILITY PERIOD The Undrawn Commitment for a Facility is cancelled at 5.00 pm (Sydney time) on the last day of the Availability Period for that Facility. 3.6 PREPAYMENT (a) The Borrower may prepay all or part of the Principal Outstanding under a Facility by giving the Agent at least 3 Business Days' prior notice. (b) Prepayment of part of the Principal Outstanding under a Facility may only be made in a minimum amount of $1,000,000 and in an integral multiple of $1,000,000. (c) A notice given under clause 3.6(a) is irrevocable and on the prepayment date specified in the notice the Borrower must prepay the full amount of the Principal Outstanding specified in the notice and all unpaid interest accrued to the prepayment date on the relevant Debentures in respect of the prepaid amount. (d) The Commitment of a Subscriber for a Facility is reduced by its Pro Rata Share of any amount of Principal Outstanding for that Facility prepaid under clauses 13.3, 13.4 or 20.2(e) and, in the case of the Tranche B Facility or any prepayment of the Tranche A Facility from the proceeds of a Permitted Securitisation, any prepayment under this clause 3.6, (except where the prepayment relates to the Principal Outstanding of a particular Subscriber for a Facility under clause 13.3, 13.4 or 20.2(e), in which case the Commitment of that Subscriber for that Facility will be reduced by the full amount of the Principal Outstanding for that Facility which is prepaid) and accordingly (but subject to clause 3.6(e)) a prepaid amount must not be redrawn. -------------------------------------------------------------------------------- page 27 36 NTL Subscription Agreement (e) An amount prepaid under this clause 3.6 in respect of the Tranche A Facility may be redrawn unless the prepayment is made from the proceeds of a Permitted Securitisation in which case it may not be redrawn. An amount prepaid under this clause 3.6 in respect of the Tranche B Facility may not be redrawn. (f) The face value amount and Paid Up Amount of each Debenture held by a Subscriber for a Facility is reduced by its Pro Rata Share of any amount of Principal Outstanding for that Facility prepaid under this clause 3.6, or under clauses 13.3, 13.4 or 20.2(e) (except where the prepayment relates to the Principal Outstanding of a particular Subscriber for a Facility under clauses 13.3, 13.4 or 20.2(e), in which case the Paid Up Amount of that Subscriber for that Facility will be reduced by the full amount of the Principal Outstanding which is prepaid), as evidenced by the Register. (g) The Scheduled Reduction Amounts set out in clause 6.5 will be reduced in inverse order of maturity by an amount equal to each reduction in the Tranche B Commitment of the Tranche B Subscribers under clause 3.6(d). (h) The Register will be updated by the Security Trustee on each occasion that a prepayment is made under this clause 3.6, or under clauses 13.3, 13.4 or 20.2(e) to reflect the revised face value amounts and Paid Up Amounts of the relevant Debentures held by relevant Subscribers. 3.7 PREPAYMENT DATE The Borrower may make a prepayment under clause 3.6 on any Business Day. ------------------------------------------------------------------------------- 4 FUNDING PROCEDURES 4.1 DELIVERY OF FUNDING NOTICE (a) If the Borrower requires a Funding Portion under a Facility it must deliver to the Agent a Funding Notice in accordance with this clause 4. (b) Promptly after receipt of a Funding Notice, the Agent must notify each Subscriber of its contents and of each Subscriber's Pro Rata Share of each Funding Portion for the relevant Facility requested. (c) If a Funding Notice is received by the Agent after 4.00pm (Sydney time) on any Business Day the Agent is not obliged to notify the Subscribers under clause 4.1(b) until the next Business Day. 4.2 REQUIREMENTS FOR A FUNDING NOTICE A Funding Notice in relation to a Facility: (a) must be in writing in the form of, and specifying the matters set out in, schedule 5; (b) must be received by the Agent before 10.30 am (Sydney time) on a day at least 3 Business Days before the proposed Funding Date (or such shorter period as the Agent may agree in writing); (c) must be signed by an Officer of the Borrower and must be executed and delivered outside New South Wales and Victoria; -------------------------------------------------------------------------------- page 28 37 NTL Subscription Agreement (d) whether or not stated in the notice, constitutes a representation and warranty by the Borrower that: (1) each representation and warranty set out in clause 10 is true, correct and not misleading as if made at the date of the Funding Notice and the Funding Date in respect of the facts and circumstances then subsisting; and (2) there has been no Event of Default or Potential Event of Default which is continuing or which would result from the Funding Portion being provided to the Borrower, but if clauses 4.2(d)(1) or (2) or both are not correct the Funding Notice must contain a statement to that effect and must set out full details of any exceptions and the reasons and any remedial action taken or proposed. Any such statement is without prejudice to the rights of each Finance Party under clause 2. 4.3 IRREVOCABILITY OF FUNDING NOTICE The Borrower is irrevocably committed to draw Funding Portions from the Subscribers in accordance with each Funding Notice given to the Agent. 4.4 NUMBER OF FUNDING PORTIONS The Borrower must ensure that no more than 7 Funding Portions in aggregate are outstanding at any time under the Facilities. 4.5 AMOUNT OF FUNDING PORTIONS The Borrower must ensure that the amount of each Funding Portion under a Facility is either: (a) not less than $5,000,000 and is an integral multiple of $1,000,000; or (b) equal to the aggregate Undrawn Commitment under that Facility. 4.6 SELECTION OF FUNDING PERIODS (a) The Borrower must select a Funding Period for each Funding Portion under a Facility in the relevant Funding Notice delivered by the Borrower in relation to the relevant Funding Portion. (b) Each Funding Period under a Facility must be of 30, 60, 90 or 180 days or any other period that the Agent (after consultation with the Subscribers) agrees with the Borrower. (c) If a Funding Period ends on a day which is not a Business Day, it is regarded as ending on the next Business Day in the same calendar month or, if none, the preceding Business Day. (d) A Funding Period for a Funding Portion commences either on the first Funding Date for that Funding Portion or on the last day of the immediately preceding Funding Period for that Funding Portion. (e) No Funding Period for a Facility may end after the Termination Date for the relevant Facility. -------------------------------------------------------------------------------- page 29 38 NTL Subscription Agreement (f) If the Borrower fails to select a Funding Period under a Facility, the Funding Period will be 90 days or such other period selected by the Agent (after consultation with the Subscribers). (g) If the Borrower selects a Funding Period in a manner which does not comply with this clause 4.6, the Agent may select the Funding Period (after consultation with the Subscribers). 4.7 DETERMINATION OF FUNDING RATE (a) After the Agent has determined the Funding Rate for a Funding Period it must promptly notify each Subscriber and the Borrower of the Funding Rate for that Funding Period. (b) In the absence of manifest error, each determination of the Funding Rate by the Agent is conclusive evidence of that rate against the Borrower. ------------------------------------------------------------------------------ 5 TRANCHE A FACILITY (REVOLVING FACILITY) 5.1 SUBSCRIPTION FOR, AND ISSUE OF DEBENTURES (a) If the Borrower gives a Funding Notice for a Funding Portion under the Tranche A Facility then, subject to this agreement, each Tranche A Subscriber must provide to the Agent its Pro Rata Share of the Funding Portion in accordance with clauses 5.1(b) and (c) in Same Day Funds in Dollars not later than 12 noon (Sydney time) on the specified Funding Date and in accordance with that Funding Notice. (b) In the case of the first Funding Portion under the Tranche A Facility, each Subscriber must provide its Pro Rata Share of the Funding Portion by subscribing in the Australian Capital Territory for a Debenture recorded in the Register as being held by that Subscriber under clause 5.1(h) on the specified Funding Date. (c) In the case of the second and each subsequent Funding Portion under the Tranche A Facility, each Subscriber must provide its Pro Rata Share of the Funding Portion by paying up part of the unpaid amount of the Debenture recorded in the Register as being held by it under clause 5.1(h). (d) The Borrower must issue a Master Debenture for the benefit of each Tranche A Subscriber on the first Funding Date under the Tranche A Facility. (e) Each Master Debenture issued for the benefit of a Tranche A Subscriber under clause 5.1(d): (1) must be executed and issued in the Australian Capital Territory; (2) must be issued in or substantially in the form set out in schedule 1 of the Debenture Trust Deed. -------------------------------------------------------------------------------- page 30 39 NTL Subscription Agreement (f) The face value amount of each Debenture recorded in the Register as being held by Tranche A Subscriber will be equal to the Tranche A Commitment of that Subscriber set out in part B of schedule 2, and will have an initial Paid Up Amount equal to that Tranche A Subscriber's Pro Rata Share of the first Funding Portion provided on the first Funding Date under the Tranche A Facility. (g) The Paid Up Amount of each Debenture recorded in the Register as being held by a Tranche A Subscriber will be increased by an amount equal to that Tranche A Subscriber's Pro Rata Share of the second and each subsequent Funding Portion provided under clause 5.1(c). (h) Details of each Debenture subscribed for by a Tranche A Subscriber under this clause 5.1, including details of: (1) its face value; (2) its initial Paid up Amount; (3) all increases and decreases in its Paid up Amount, will be recorded in the Register by the Security Trustee in accordance with the Debenture Trust Deed. 5.2 PAYMENT TO BORROWER On receipt of the amounts paid to it by the Tranche A Subscribers under clause 5.1(b) and (c), the Agent must pay the same in Same Day Funds in Dollars to an account of the Borrower in the Australian Capital Territory. 5.3 REPAYMENT (a) The Paid Up Amount of each Debenture under the Tranche A Facility must be repaid by the Borrower to the Agent for the account of the Tranche A Subscribers: (1) in full on the Termination Date for the Tranche A Facility; and (2) otherwise as specified in, or required under, this agreement. (b) The Borrower must pay or repay the balance of the Secured Moneys for the Tranche A Facility in full to the Agent for the account of the Tranche A Subscribers on the Termination Date for the Tranche A Facility or on such other date on which the Paid Up Amount on each Debenture issued under the Tranche A Facility is, or is required to be, repaid or prepaid in full. 5.4 INTEREST (a) The Borrower must pay interest on the Paid Up Amount of each Debenture for the Tranche A Facility at the Funding Rate for the Tranche A Facility for each relevant Funding Period. (b) Interest must be calculated on daily balances on the basis of a 365 day year and for the actual number of days elapsed from and including the first day of each Funding Period to, but excluding, the last day of the Funding Period, or, in the case of a prepayment or repayment being made on a day other than the last day of the relevant Funding Period, the prepayment or repayment date. -------------------------------------------------------------------------------- page 31 40 NTL Subscription Agreement (c) The Borrower must pay accrued interest in arrears to the Agent for the account of the Tranche A Subscribers on each Interest Payment Date. 5.5 UPDATING REGISTER The Register will be updated by the Security Trustee on each occasion that: (a) a prepayment or repayment of the Principal Outstanding under the Tranche A Facility is made to reflect the revised face value amounts and Paid up Amounts of the Debentures held by the Tranche A Subscribers; (b) a prepayment or repayment of the Principal Outstanding under the Tranche B Facility is made to reflect the revised face value amounts and Paid Up Amounts of the Debentures held by the Tranche B Subscribers. 5.6 FIRST FUNDING PORTION Notwithstanding any other provision of the Transaction Documents, $100 of the Paid Up Amount of each Debenture held by each Tranche A Subscriber must not be repaid until all the Secured Moneys (other than each amount of $100 referred to in clause 6.6) have been paid or satisfied in full. ------------------------------------------------------------------------------ 6 TRANCHE B FACILITY (AMORTISING FACILITY) 6.1 SUBSCRIPTION FOR, AND ISSUE OF DEBENTURES (a) If the Borrower gives a Funding Notice for a Funding Portion under the Tranche B Facility then, subject to this agreement, each Tranche B Subscriber must provide to the Agent its Pro Rata Share of the Funding Portion in accordance with clauses 6.1(b) and (c) in Same Day Funds in Dollars not later than 12 noon (Sydney time) on the specified Funding Date and in accordance with that Funding Notice. (b) In the case of the first Funding Portion under the Tranche B Facility, each Subscriber must provide its Pro Rata Share of the Funding Portion by subscribing in the Australian Capital Territory for a Debenture recorded in the Register as being held by that Subscriber under clause 6.1(h) on the specified Funding Date. (c) In the case of the second and each subsequent Funding Portion under the Tranche B Facility, each Subscriber must provide its Pro Rata Share of the Funding Portion by paying up part of the unpaid amount of the Debenture recorded in the Register as being held by it under clause 6.1(h). (d) The Borrower must issue a Master Debenture for the benefit of each Tranche B Subscriber on the first Funding Date under the Tranche B Facility. (e) Each Master Debenture issued for the benefit of a Tranche B Subscriber under clause 6.1(d): (1) must be executed and issued in the Australian Capital Territory; (2) must be issued in or substantially in the form set out in schedule 1 of the Debenture Trust Deed. -------------------------------------------------------------------------------- page 32 41 NTL Subscription Agreement (f) The face value amount of each Debenture recorded in the Register as being held by a Tranche B Subscriber will be equal to the Tranche B Commitment of that Subscriber set out in part B of schedule 2, and will have an initial Paid Up Amount equal to that Tranche B Subscriber's Pro Rata Share of the first Funding Portion provided on the first Funding Date under the Tranche B Facility. (g) The Paid Up Amount of each Debenture recorded in the Register as being held by a Tranche B Subscriber will be increased by an amount equal to that Tranche B Subscriber's Pro Rata Share of the second and each subsequent Funding Portion provided under clause 6.1(c). (h) Details of each Debenture subscribed for by a Tranche B Subscriber under this clause 6.1, including details of: (1) its face value; (2) its initial Paid up Amount; (3) all increases and decreases in its Paid up Amount, will be recorded in the Register by the Security Trustee in accordance with the Debenture Trust Deed. 6.2 PAYMENT TO BORROWER On receipt of the amounts paid to it by the Tranche B Subscribers under clause 6.1(b) and (c), the Agent must pay the same in Same Day Funds in Dollars to an account of the Borrower in the Australian Capital Territory. 6.3 REPAYMENT (a) The Paid Up Amount of each Debenture under the Tranche B Facility must be repaid by the Borrower to the Agent for the account of the Tranche B Subscribers: (1) in full on the Termination Date for the Tranche A Facility; and (2) otherwise as specified in, or required under this agreement. (b) The Borrower must pay or repay the balance of the Secured Moneys for the Tranche B Facility in full to the Agent for the account of the Tranche B Subscribers on the Termination Date for the Tranche B Facility or on such other date on which the Paid Up Amount on each Debenture issued under the Tranche B Facility is, or is required to be, repaid or prepaid in full. 6.4 INTEREST (a) The Borrower must pay interest on the Paid Up Amount of each Debenture for the Tranche B Facility at the Funding Rate for the Tranche B Facility for each relevant Funding Period. (b) Interest must be calculated on daily balances on the basis of a 365 day year and for the actual number of days elapsed from