EX-10.4 6 y49999ex10-4.txt CREDIT AGREEMENT 1 Exhibit 10.4 C L I F F O R D LIMITED LIABILITY PARTNERSHIP C H A N C E CONFORMED COPY DATED 28 MARCH 2000 NTL INCORPORATED AS PARENT NTL CABLECOM HOLDING GmbH AS SHAREHOLDER CABLECOM (OSTSCHWEIZ) AG AS PRINCIPAL BORROWER CHASE MANHATTAN PLC AND MORGAN STANLEY SENIOR FUNDING, INC. AS ARRANGERS AND JOINT BOOK MANAGERS CHASE MANHATTAN INTERNATIONAL LIMITED AS AGENT AND OTHERS -------------------------------------------------------------- CHF4,100,000,000 CREDIT AGREEMENT RELATING TO THE ACQUISITION OF THE CABLECOM BUSINESS -------------------------------------------------------------- 2 CONTENTS

CLAUSE PAGE ------ ---- 1. Definitions And Interpretation .............................. 1 2. The Facilities .............................................. 34 3. Utilisation Of The Original Term Facility ................... 35 4. Interest Periods For Original Term Advances ................. 36 5. Payment And Calculation Of Interest On Original Term Advances 37 6. Utilisation Of The Revolving Facility ....................... 39 7. Payment And Calculation Of Interest On Revolving Advances ... 41 8. Market Disruption And Alternative Interest Rates ............ 41 9. Notification ................................................ 42 10. Repayment Of The Original Term Facility ..................... 43 11. Repayment Of The Revolving Facility And Term-Out Option ..... 44 12. Cancellation And Prepayment ................................. 46 13. Mandatory Prepayment ........................................ 48 14. Taxes ....................................................... 52 15. Tax Receipts ................................................ 55 16. Increased Costs ............................................. 56 17. Illegality .................................................. 57 18. Mitigation .................................................. 58 19. Representations ............................................. 58 20. Financial Information ....................................... 67 21. Financial Condition ......................................... 71 22. Covenants ................................................... 77 23. Events Of Default ........................................... 86 24. Guarantee And Indemnity ..................................... 92 25. Commitment Commission And Fees .............................. 95 26. Costs And Expenses .......................................... 97 27. Default Interest And Break Costs ............................ 98 28. Borrowers' Indemnities ...................................... 99 29. Currency Of Account And Payment ............................. 99 30. Payments .................................................... 100 31. Set-Off ..................................................... 103

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CLAUSE PAGE 32. Sharing ..................................................... 103 33. The Agent, The Arrangers And The Banks ...................... 107 34. Assignments And Transfers ................................... 113 35. Additional Borrowers ........................................ 116 36. Additional Guarantors ....................................... 117 37. Permitted Facilities Provider ............................... 118 38. Calculations And Evidence Of Debt ........................... 118 39. Remedies And Waivers, Partial Invalidity .................... 119 40. Notices ..................................................... 120 41. Counterparts ................................................ 121 42. Amendments .................................................. 121 43. Governing Law ............................................... 123 44. Jurisdiction ................................................ 123 Schedule 1 THE ORIGINAL PARTIES .................................. 125 Part A The Obligors ......................................... 125 Part B The Operating Companies .............................. 127 Part C The Banks ............................................ 128 Schedule 2 FORM OF TRANSFER CERTIFICATE .......................... 130 Schedule 3 CONDITIONS PRECEDENT .................................. 133 Schedule 4 NOTICE OF DRAWDOWN .................................... 137 Schedule 5 FORM OF COMPLIANCE CERTIFICATE ........................ 139 Schedule 6 FORM OF BORROWER ACCESSION MEMORANDUM ................. 140 Schedule 7 FORM OF GUARANTOR ACCESSION MEMORANDUM ................ 142 Schedule 8 ADDITIONAL CONDITIONS PRECEDENT ....................... 144 Schedule 9 FORM OF RESIGNATION NOTICE ............................ 146 Schedule 10 MANDATORY COSTS ...................................... 147 Schedule 11 CONFIDENTIALITY UNDERTAKING .......................... 149 Schedule 12 EXISTING MORTGAGES ................................... 153 Schedule 13 FORM OF DEED OF ACCESSION ............................ 154

4 THIS AGREEMENT is made on 28 March 2000 BETWEEN (1) NTL INCORPORATED a company registered in Delaware,of 110 East 59th Street, New York NY10022, USA (the "PARENT"); (2) NTL CABLECOM HOLDING GmbH (the "SHAREHOLDER"); (3) CABLECOM (OSTSCHWEIZ) AG (the "PRINCIPAL BORROWER"); (4) THE COMPANIES listed in Part A of Schedule 1 as original borrowers (The Original Parties) in their capacity as borrowers hereunder (together with the Principal Borrower, the "ORIGINAL BORROWERS"); (5) THE COMPANIES listed in Part A of Schedule 1 as original guarantors (The Original Parties) in their capacity as guarantors hereunder (together with the Shareholder and the Principal Borrower, the "ORIGINAL GUARANTORS"); (6) CHASE MANHATTAN PLC and MORGAN STANLEY SENIOR FUNDING, INC. as arrangers of the Facility (the "ARRANGERS"); (7) CHASE MANHATTAN INTERNATIONAL LIMITED as agent for the Banks (the "AGENT"); and (8) THE BANKS (as defined below). IT IS AGREED as follows. 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS In this Agreement: "A DEBT" means the rights and obligations of the lender under the First Loan Agreement, such rights being subordinated by the Subordination Deed and pledged by the Subordinated NTL CV1 Debt Pledge. "ACCESSION MEMORANDUM" means a Borrower Accession Memorandum or a Guarantor Accession Memorandum. "ACCOUNTANTS' LETTER" means the letter from Ernst & Young in the agreed form, addressed to and capable of being relied upon by the Finance Parties, confirming that based upon projections provided by the Parent, which have not been audited by Ernst & Young, each Original Borrower will have: (a) projected income (including, if relevant, dividend receipts) sufficient to enable it to service, in full, all its projected indebtedness under the Facilities; and (b) sufficient taxable income to ensure full tax deductibility on all projected interest payments to be made by it under the Facilities, - 1 - 5 or, to the extent either (a) or (b) above will not be satisfied based upon such projections, identifying any relevant shortfalls and indicating how the Original Borrowers intend to address those shortfalls. "ACQUISITION" means the purchase by the Parent (or its directly wholly owned subsidiary) and the Principal Borrower of the Cablecom Business. "ACQUISITION AGREEMENT" means the transaction agreement dated as of 12 December 1999 between the Parent, the Vendor and the Vendor's shareholders, setting out the terms of the Acquisition, together with all schedules, exhibits and attachments to such agreement. "ACQUISITION AGREEMENT ASSIGNMENT" means the assignment agreement entered into by the Shareholder and the Principal Borrower, assigning their respective rights under the Acquisition Documents to the Agent (on behalf of the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and/or to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "ACQUISITION DATE" means the date on which the Acquisition is completed in accordance with clause 3.3 of the Acquisition Agreement. "ACQUISITION DOCUMENTS" means the Acquisition Agreement and all documents executed pursuant thereto on or before the Acquisition Date, the assignment agreements between certain members of the NTL Inc. Holding Group and the Principal Borrower (assigning certain rights of the Parent under the Acquisition Agreement to the Shareholder and the Principal Borrower) and each other document (if any) relating to the transactions contemplated in the Acquisition Agreement and identified by the Agent and the Principal Borrower in writing as an Acquisition Document. "ACQUISITION EVENT OF DEFAULT" means any circumstance constituting an Event of Default under any of the following Clauses: (a) Clause 23.1 (Failure to Pay); (b) Clause 23.2 (Misrepresentation) (to the extent such relates to an Acquisition Repeated Representation); (c) Clause 23.7 (Insolvency and Rescheduling) to Clause 23.10 (Failure to Comply with Final Judgment) (inclusive), as if references therein to "any member of the Restricted Group" were references to the Parent, each other member of the NTL Inc. Holding Group, the Principal Borrower and CC AG; or (d) Clause 23.15 (Illegality). "ACQUISITION POTENTIAL EVENT OF DEFAULT" means any event which would become (with the passage of time, the giving of notice, the making of any determination hereunder or any combination thereof) an Acquisition Event of Default. - 2 - 6 "ACQUISITION RECOVERY PROCEEDS" means the proceeds of any payment made by the Vendor, the Vendor's shareholders or the Vendor's (or the Vendor's shareholders') affiliates, employees, officers or advisers under or in relation to the Acquisition Documents including (without limitation) the proceeds of any payment in respect of: (a) a claim for breach of contract or warranty, misrepresentation or a claim under an indemnity; or (b) an adjustment to the Net Purchase Price (as defined in the Acquisition Agreement) in accordance with either an adjustment to the net assets of the Cablecom Business and/or the number of subscribers comprised in the Cablecom Business, in accordance with clause 2.2.5 and clause 2.2.6 respectively of the Acquisition Agreement; (c) clause 6.2.1(b) of the Acquisition Agreement, relating to the number of subscribers of the Cablecom Business; or (d) clause 4.7 of the Acquisition Agreement, relating to a payment out of an escrow amount into which dividends of the Cablecom Business have been paid. "ACQUISITION REMEDY" means the application of Acquisition Recovery Proceeds towards: (a) the discharge of a liability, charge or claim made upon any member of the NTL Inc. Holding Group or the Group, where the Vendor or the Vendor's shareholders are obliged under the Acquisition Documents to indemnify or otherwise reimburse the relevant member of the NTL Inc. Holding Group or the Group for such a liability, charge or claim; or (b) reimbursing a member of the NTL Inc. Holding Group or the Group for monies disbursed in connection with discharging any liability, charge or claim referred to in paragraph (a) above; or (c) replacing, reinstating and/or repairing assets of the Cablecom Business where the loss of, or damage to, such assets gave rise to a claim for breach of contract or warranty, misrepresentation or a claim under an indemnity under the Acquisition Documents. "ACQUISITION REPEATED REPRESENTATIONS" means each of the representations set out in Clause 19.1 (Status) to Clause 19.4 (Execution of the Finance Documents), sub-clause 19.16.1 of Clause 19.16 (No NTL Note Defaults), Clause 19.21 (No Material Defaults), Clause 19.28 (Ownership of the Principal Borrower), Clause 19.30 (Consents and Approvals) (excluding sub-clause 19.30.1 thereof), Clause 19.31 (Security Interest) and Clause 19.33 (Good Title to Assets). "ADDITIONAL BORROWER" means any company which has become an Additional Borrower in accordance with Clause 35 (Additional Borrowers). - 3 - 7 "ADDITIONAL GUARANTOR" means any company which has become an Additional Guarantor in accordance with Clause 36 (Additional Guarantors). "ADDITIONAL MERGERS" means mergers of the Principal Borrower with other members of the Restricted Group where, in respect of each such merger: (a) the Principal Borrower is the surviving entity, having all the rights and obligations which the merged entity and the Principal Borrower itself had immediately prior to such a merger taking effect; and (b) the merger is effected pursuant to documentation, and in accordance with any Swiss legal or procedural requirements, approved or deemed applicable by the Agent's Swiss counsel. "ADDITIONAL OBLIGOR" means an Additional Borrower or Additional Guarantor. "ADDITIONAL SUBORDINATED DEBT" means any loan by the Shareholder or any member of the NTL Inc. Holding Group to a member of the Restricted Group, where: (a) the Agent has been given at least five Business Days prior written notice that such a loan is to be made; (b) the lender's rights under such a loan have been subordinated by an agreement or deed approved by the Agent, such an agreement or deed permitting repayments of principal, payments of interest and any other payments to the lender only to the extent that such payments amount to Permitted Distributions under paragraph (b) of the definition thereof; and (c) if either (i) requested by the Agent (acting reasonably) or (ii) the amount of such a loan, when aggregated with the amount of all other Additional Subordinated Debt owed by members of the Restricted Group at the time such a loan is made and in respect of which the relevant lenders' rights have not been assigned to the Agent (or the Finance Parties) and/or the Permitted Facilities Provider is equal to or greater than CHF25,000,000, the lender's rights under such a loan have been assigned to the Agent (or the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities by an agreement or deed approved by the Agent. "ADVANCE" means a Revolving Advance, an Original Term Advance or a Term-out Advance. "ANNUALISED EBITDA" has the meaning given to it in Clause 21 (Financial Condition). "AUTHORISED SIGNATORY" means, in relation to the Parent, NTL SPV LLC (as the general partner of NTL CV1), an Obligor or proposed Obligor, any person who is duly - 4 - 8 authorised (in such manner as may be reasonably acceptable to the Agent) to act on behalf of such person and in respect of whom the Agent has received a certificate signed by a director or another Authorised Signatory of the Parent, NTL SPV LLC or, as the case may be, such Obligor or proposed Obligor setting out the name and signature of such person and confirming such person's authority to act. "AVAILABLE COMMITMENT" means, in relation to a Bank at any time, the aggregate of its Available Term Commitment and Available Revolving Commitment. "AVAILABLE EXCESS CASH FLOW" means, at any time, the aggregate Excess Cash Flow generated in respect of each financial year of the Principal Borrower, commencing with the financial year ended 31 December 2003, less the amount of such Excess Cash Flow (in respect of each financial year) which is required to be used (with respect to such financial year) to prepay the Loan in accordance with Clause 13.1 (Mandatory Prepayment from Excess Cash Flow) PROVIDED THAT any amount falling within this definition of Available Excess Cash Flow may not be distributed or otherwise spent more than once. "AVAILABLE REVOLVING COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, its Revolving Commitment at such time LESS its share of the Revolving Advances which are then outstanding, PROVIDED THAT such amount shall not be less than zero. "AVAILABLE REVOLVING FACILITY" means, at any time, the aggregate amount of the Available Revolving Commitments adjusted, in the case of any proposed drawdown, so as to take into account: (a) any reduction in the Revolving Commitment of a Bank pursuant to the terms hereof; (b) any Revolving Advance which, pursuant to any other drawdown, is to be made; and (c) any Revolving Advance which is due to be repaid, on or before the proposed drawdown date. "AVAILABLE TERM COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, its Term Commitment at such time LESS the aggregate of its share of the Original Term Advances which are then outstanding. "AVAILABLE TERM FACILITY" means, at any time, the aggregate amount of the Available Term Commitments adjusted, in the case of any proposed drawdown, so as to take into account any reduction in the Term Commitment of a Bank on or before the proposed drawdown date pursuant to the terms hereof. - 5 - 9 "AVERAGE REVENUE CONTRIBUTION" means, in respect of any asset at any time: A + B - - - 2 where: A = the revenue generated by, or attributable (whether in whole or in part) to, such asset during the immediately preceding financial year of the Principal Borrower, expressed as a percentage of the total consolidated revenue of the Restricted Group for such a financial year; and B = the revenue generated by, or attributable (whether in whole or in part) to, such asset during the financial year of the Principal Borrower preceding that referred to in A above, expressed as a percentage of the total consolidated revenue of the Restricted Group for such financial year. "B DEBT" means the rights and obligations of the lender under the Second Loan Agreement. "BANK" means any financial institution: (a) named in Part C of Schedule 1 (The Original Parties); or (b) which has become a party hereto in accordance with Clause 34.4 (Assignments by Banks) or Clause 34.5 (Transfers by Banks), and which has not ceased to be a party hereto in accordance with the terms hereof. "BORROWERS" means each of the Original Borrowers and each Additional Borrower, PROVIDED THAT such company has not been released from its rights and obligations hereunder in accordance with Clause 35.3 (Resignation of a Borrower). "BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the form set out in Schedule 6 (Form of Borrower Accession Memorandum). "BUDGET" means a budget delivered by the Principal Borrower to the Agent pursuant to Clause 20.5 (Budgets). "BUSINESS DAY" means a day (other than a Saturday or Sunday) which is not a public holiday and on which banks generally are open for business in London and Zurich. "BUSINESS PLAN" means the financial model including profit and loss accounts, balance sheets and cash flow projections, in agreed form, relating to the Restricted Group (for these purposes assuming completion of the Acquisition). "BV1" means Nogenta Swiss Acquisition Holding 1 B.V., a limited liability company incorporated in The Netherlands and (following the completion of the Hivedown) being a wholly owned subsidiary of NTL CV1. - 6 - 10 "CABLECOM BUSINESS" means: (a) the Principal Borrower; (b) the Cablecom Subsidiaries and the minority interests of the Cablecom Subsidiaries; (c) the other assets and liabilities of the Vendor acquired by, or (as the case may be) transferred to, the Principal Borrower, CC AG or, as the case may be, the Cablecom Subsidiaries pursuant to the Acquisition Documents and the Hivedown; and (d) prior to the completion of the Initial Mergers, CC AG and its subsidiaries. "CABLECOM SUBSIDIARIES" means the direct and indirect subsidiaries of the Vendor acquired by the Principal Borrower pursuant to the Acquisition Documents and the Hivedown. "CC AG" means Cablecom AG. "C DEBT" means the rights and obligations of the lender under the Third Loan Agreement, such rights being subordinated by the Subordination Deed and pledged by the Subordinated NTL CV1 Debt Pledge. "COMMITMENT" means, in relation to a Bank at any time, the aggregate of its Term Commitment and its Revolving Commitment. "COMPLIANCE CERTIFICATE" means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate). "CONFIDENTIALITY UNDERTAKING" means the confidentiality undertaking set out in Schedule 11 (Confidentiality Undertaking) or such other form of confidentiality undertaking as may be agreed between the Parent, the Principal Borrower and the Agent. "CONSOLIDATED PRO-FORMA DEBT SERVICE" has the meaning given to it in Clause 21 (Financial Condition). "CONVERSION SUBSIDIARIES" means the members of the Restricted Group identified in the Reorganisation Summary as being entities who will be converted into Swiss limited liability companies ("GmbH"s) as part of the Reorganisation. "DEED OF ACCESSION" means a deed substantially in the form set out in Schedule 13 (Form of Deed of Accession). "DISPUTE" means any dispute referred to in Clause 43 (Jurisdiction). "DISCLOSURE LETTER" means the letter, in the agreed form, dated on or before the date of this Agreement from the Principal Borrower to the Agent (on behalf of the Finance - 7 - 11 Parties) setting out various matters to be excluded from certain representations and covenants in this Agreement. "EBITDA" has the meaning given to it in Clause 21 (Financial Condition). "EMU" means Economic and Monetary Union as contemplated in the Treaty on European Union. "EMU LEGISLATION" means legislative measures of the European Union for the introduction of, changeover to or operation of the euro in one or more member states, being in part legislative measures to implement EMU. "ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other encumbrance securing any obligation of any person, (b) any arrangement under which money or claims to, or the benefit of, a bank or other account may be applied, set off or made subject to a combination of accounts so as to effect discharge of any sum owed or payable to any person or (c) any other type of preferential arrangement (including any title transfer and retention arrangement) having a similar effect. "ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any person pursuant to any Environmental Law. "ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in which any member of the Restricted Group conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants. "ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and other authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Restricted Group conducted on or from the properties owned or used by the relevant member of the Restricted Group. "ESCROW ACCOUNT" means an escrow account, bearing interest at a commercially reasonable rate in relation to the given circumstances, held with the Agent (or any financial institution acceptable to the Agent) in the name of the Shareholder or a member of the Restricted Group which is opened after the date hereof (as the same may be redesignated, substituted or replaced from time to time) which is pledged, charged or assigned to the Agent (or the Finance Parties) pursuant to a Security Document to secure all amounts due under the Finance Documents and into which certain monies are paid pursuant to Clause 13 (Mandatory Prepayment). "EVENT OF DEFAULT" means any circumstance described as such in Clause 23 (Events of Default). "EXCESS CASH FLOW" has the meaning given to it in Clause 21 (Financial Condition). "EXISTING INDEBTEDNESS" means the indebtedness of the Cablecom Business outstanding on the Acquisition Date. - 8 - 12 "EXISTING MORTGAGES" means the Swiss law mortgages ("Hypotheken") set out in Schedule 12 (Existing Mortgages) granted by certain members of the Restricted Group, subsisting on the date of this Agreement and relating only to those assets identified in Schedule 12 (Existing Mortgages). "FACILITIES" means the Original Term Facility, the Revolving Facility and the Term-Out Facility. "FACILITY OFFICE" means, in relation to the Agent, the office identified with its signature below or such other office as it may select by notice and, in relation to any Bank, the office notified by it to the Agent in writing prior to the date hereof (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) or such other office as it may from time to time select by notice to the Agent. "FINANCE DOCUMENTS" means this Agreement, any Borrower Accession Memorandum, any Guarantor Accession Memorandum, any fee letters delivered pursuant to Clause 25 (Commitment Commission and Fees), the Security Documents, the Hedging Agreements, the Subordination Deed (and any other subordination agreements or deeds executed in relation to any Additional Subordinated Debt) and any other document designated as such by agreement between the Agent and the Principal Borrower. "FINANCE PARTIES" means the Agent, the Arrangers, the Banks and any Hedge Counterparties. "FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of: (a) Indebtedness for Borrowed Money; (b) any documentary or standby letter of credit facility or performance bond facility; (c) any interest rate swap, currency swap, forward foreign exchange transaction, cap, floor, collar or option transaction or any other treasury transaction or any combination thereof or any other transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and the amount of the Financial Indebtedness in relation to any such transaction shall be calculated by reference to the mark-to-market valuation of such transaction at the relevant time); and (d) (without double counting) any guarantee or indemnity for any of the items referred to in paragraphs (a) to (c) above. "FINANCIAL QUARTER" has the meaning given to it in Clause 21 (Financial Condition). "FIRST LOAN AGREEMENT" means the loan agreement, in the agreed form, entered into between NTL SPV Inc. as lender and the Principal Borrower as borrower, setting out the terms on which the indebtedness owed by the Principal Borrower in respect of the First Sale and Purchase Agreement remains outstanding. - 9 - 13 "FIRST SALE AND PURCHASE AGREEMENT" means the share sale and purchase agreement, in the agreed form, entered into in relation to the Hivedown, between NTL SPV Inc. as seller and the Principal Borrower as buyer of Cablecom (Zentralschweiz) AG, Cablecome (Bern) AG, Cablecom Signal Olten AG and Kilchenmann Holding AG, the consideration payable by the Principal Borrower being represented by the A Debt. "GROUP" means the Shareholder and its subsidiaries from time to time. "GROUP STRUCTURE CHART" means the group structure chart in agreed form: (a) showing the NTL Inc. Holding Group; (b) showing all members of the Group; (c) showing any person in which any Group member has an interest in the issued share capital or equivalent ownership interest of such person; (d) showing the jurisdiction of incorporation or establishment of each person within paragraph (a), paragraph (b) or paragraph (c) above; (e) showing all Intra-Group Loans existing as at the Acquisition Date and the Subordinated Funding; (f) confirming that, on the Acquisition Date, all members of the NTL Inc. Holding Group (other than the Parent) are wholly-owned subsidiaries of the Parent; and (g) confirming that all members of the Restricted Group are wholly-owned subsidiaries of the Principal Borrower (or specifying the percentage shareholdings of any members of the Restricted Group which are not such wholly-owned subsidiaries). "GUARANTORS" means each of the Original Guarantors and each Additional Guarantor, PROVIDED THAT such company has not been released from its rights and obligations hereunder in accordance with Clause 36.3 (Resignation of a Guarantor). "GUARANTOR ACCESSION MEMORANDUM" means a memorandum substantially in the form set out in Schedule 7 (Form of Guarantor Accession Memorandum). "HEDGE COUNTERPARTY" means a Bank or an affiliate of a Bank who (a) is, at the time it enters into a Hedging Agreement rated at least A by Standard and Poor's Rating Corporation and A2 by Moody's Investors Services, Inc. and (b) has agreed to enter into a Hedging Agreement. "HEDGING AGREEMENTS" means each of the agreements entered into or to be entered into between certain Borrowers and Hedge Counterparties for the purpose of hedging interest rate liabilities in accordance with Clause 22.26 (Hedging). "HEDGING BANK" means a Bank who either is, or becomes, a Hedge Counterparty or who has an affiliate which is, or becomes, a Hedge Counterparty. - 10 - 14 "HEDGING LIABILITIES" means all present and future sums and actual or contingent liabilities and obligations payable, owing, due or incurred by any Borrower to any Hedge Counterparty pursuant to the terms of any Hedging Agreement, as determined by the relevant Hedge Counterparty (acting reasonably) and agreed by the Agent. "HIVEDOWN" means, in respect of that part of the Cablecom Business acquired by NTL SPV Inc. the transfer of such in accordance with the structure chart and step plan set out in schedule 4 to the Accountants' Letter, so that such part of the Cablecom Business is (at the end of the series of transactions set out therein) owned by the Shareholder and the Principal Borrower. "INDEBTEDNESS FOR BORROWED MONEY" means any indebtedness for or in respect of: (a) moneys borrowed; (b) any amount raised by acceptance under any acceptance credit facility; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) any amount raised pursuant to any issue of shares which are expressed to be redeemable (other than shares redeemable after 30 September 2010); (e) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with generally accepted accounting principles in the relevant jurisdiction, be treated as a finance or capital lease; (f) the amount of any liability in respect of any advance or deferred purchase agreement if the primary reason for entering into such agreement is to raise finance; (g) receivables sold or discounted (other than on a non-recourse basis); (h) any agreement or option to re-acquire an asset if the primary reason for entering into such agreement or option is to raise finance; (i) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; and (j) (without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above. "INFORMATION MEMORANDUM" means the document concerning the Cablecom Business and the Parent which, at the request and on behalf of the Parent, has been prepared in relation to this transaction, approved by the Parent and distributed by the Arrangers to selected banks during February 2000 (as the same may be updated on or before the Syndication Date). - 11 - 15 "INITIAL MERGERS" means the mergers of the Principal Borrower with: (a) Kilchenmann Holding AG after Kilchenmann Kabelfernsehen AG is merged into it; (b) Cablecom (Zentralschweiz) AG, Cablecom (Mittelland) AG, Cablecom (Bern) AG, and Cablecom Signal Olten AG; and (c) thereafter, with CC AG, in each case (i) with the Principal Borrower being the surviving entity, having all the rights and obligations which each of the above merged entities and the Principal Borrower itself had immediately prior to such mergers taking effect and (ii) pursuant to documentation, and in accordance with any Swiss legal or procedural requirements, approved or deemed applicable by the Agent's Swiss counsel. "INITIAL SHARE PLEDGES" means the Swiss law pledges over the shares of certain members of the Restricted Group (as agreed between the Agent and the Principal Borrower), such pledges being granted in favour of the Finance Parties as security for the obligations of the Obligors under the Finance Documents and/or the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "INSTRUCTING GROUP" means: (a) before any Advances have been made, a Bank or Banks whose Commitments amount in aggregate to more than sixty-six and two thirds per cent. of the Total Commitments; and (b) thereafter, a Bank or Banks to whom in aggregate more than sixty-six and two thirds per cent. of the Loan is (or, immediately prior to its repayment, was then) owed. "INTELLECTUAL PROPERTY" means all patents, trade marks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered, and the benefit of all licences, applications and rights to use such intellectual property now or hereafter belonging to any member of the Group. "INTEREST PERIOD" means, save as otherwise provided herein: (a) any of those periods mentioned in Clause 4.1 (Original Term Advance Interest Periods) or Clause 11.4 (Term-Out Advance Interest Periods); and (b) in relation to an Unpaid Sum, any of those periods mentioned in Clause 27.1 (Default Interest Periods). - 12 - 16 "INTRA-GROUP LOAN ASSIGNMENTS" means the assignment agreements entered into by: (a) the Principal Borrower, in respect of the Intra-Group Loan owed to it by Cablecom Suisse Romande SA and Cablecom Engineering SA following the completion of paragraph (a) of the definition of the Reorganisation; and (b) any Obligor, in respect of an Intra-Group Loan by such an Obligor to another Obligor, in each case in favour of the Agent (or the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and/or the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "INTRA-GROUP LOANS" means any loan (a) between the Shareholder and members of the Restricted Group and (b) between members of the Restricted Group. "KEY SITES" means the digital master headend sites located at Zurich-Leimbach, Winterthur and St. Gallen. "LEGAL OPINIONS" means the legal opinions delivered to the Agent pursuant to Clause 2.3 (Conditions Precedent), Clause 35.2 (Borrower Conditions Precedent) or, as the case may be, Clause 36.2 (Guarantor Conditions Precedent). "LIBOR" means, in relation to any amount to be advanced to or owing by an Obligor under the Finance Documents on which interest for a given period is to accrue: (a) the percentage rate per annum equal to the offered quotation which appears on the page of the Telerate Screen which displays the British Bankers Association Interest Settlement Rate for Swiss Francs (being currently "3750") or the currency of any Unpaid Sum for such period as of 11.00 a.m. on the Quotation Date for such period or, if such page or such service shall cease to be available, such other page or such other service for the purpose of displaying the British Bankers Association Interest Settlement Rate for Swiss Francs (or the currency of such Unpaid Sum) as the Agent, after consultation with the Banks and the Principal Borrower, shall select; or (b) if no quotation for Swiss Francs (or the currency of such Unpaid Sum) and the relevant period is displayed under (a) above and the Agent has not selected an alternative service on which a quotation is displayed, the arithmetic mean (rounded upwards to five decimal places) of the rates (as notified to the Agent) at which each of the Reference Banks was offering to prime banks in the London interbank market deposits in Swiss Francs (or the currency of such Unpaid Sum) for such period as of 11.00 a.m. on the Quotation Date for such period. "LICENCES" means: (a) telecommunication licences, under the Telecommunication Act; - 13 - 17 (b) broadcasting and transmission licences ("Weiterverbreitungs- Konzessionen"), under the Radio and Television Act; and (c) Telecommunication Act permits. "LOAN" means, at any time, the aggregate of the Original Term Loan and the Revolving Loan (or, after the Revolving Termination Date, the Term-Out Loan). "MANDATORY COST RATE" means the rate determined in accordance with Schedule 10 (Mandatory Costs). "MARGIN" means, for all Advances, the percentage rate per annum determined in accordance with Clause 5.3 (Margin Ratchet) to Clause 5.5 (Default Margin). "MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of the Restricted Group taken as a whole or (b) the ability of an Obligor to perform its material obligations under the Finance Documents to which it is a party. "MATERIAL COMMERCIAL CONTRACTS" means any agreements, contracts or licences entered into or granted to any member of the Restricted Group which are reasonably likely to be material to the business or prospects of the Restricted Group taken as a whole. "MAXIMUM PERMITTED INTRA-GROUP LOANS" has, in relation to an Obligor, the meaning given to it in sub-clause 20.2.2 of Clause 20.2 (Quarterly Statements). "MORTGAGES" means the Swiss law mortgages, in the agreed form, over the Key Sites, to be granted by certain Obligors in favour of the Finance Parties as security for the obligations of the Obligors under the Finance Documents and/or the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "NET AVERAGE REVENUE CONTRIBUTIONS" means, at any time: (a) the aggregate of the Average Revenue Contributions of all assets disposed of under paragraph (f) of the definition of Permitted Disposals, less (b) the aggregate of the estimated Average Revenue Contributions of all assets acquired by members of the Restricted Group either in exchange for, or out of the proceeds of the disposal of, assets disposed of under paragraph (f) of the definition of Permitted Disposals (such estimated Average Revenue Contributions to be reasonably agreed between the Principal Borrower and the Agent on the basis of the revenues such acquired assets could have reasonably been expected to have generated for the two financial years of the Principal Borrower immediately preceding the date of their acquisition, had such assets - 14 - 18 been owned by the relevant member of the Restricted Group throughout those two financial years). "NOTICE OF DRAWDOWN" means a notice substantially in the form set out in Schedule 4 (Notice of Drawdown). "NOTICE PERIOD" means the period commencing ten Business Days before the last day of the current Interest Period or Term of an existing Advance and ending 10.00 a.m. three Business Days before the last day of the current Interest Period or Term of an existing Advance or, as the case may be, the period commencing ten Business Days before the proposed date for the making of an Advance and ending 10.00 a.m. three Business Days before the proposed date for the making of the Advance. "NOTIFICATION TIME" means 5.30 p.m. on the day three Business Days before the first day of an Interest Period or Term. "NTL CV1" means Cable Connect Switzerland 1 C.V., a limited partnership ("Commanditaive Vennoolschap") established under Dutch law between NTL SPV Inc. as a limited partner and NTL SPV LLC as a general partner. "NTL HOLDINGS INC." means a newly incorporated company which, as part of the acquisition by the Parent of the cable business of Cable and Wireless Communications plc, it is proposed will acquire 100 per cent. of the issued share capital of the Parent. "NTL INC. GROUP" means the Parent or, after the acquisition of the Parent by NTL Holdings Inc., NTL Holdings Inc. and each of the Parent's or, as the case may be, NTL Holdings Inc.'s subsidiaries (other than any member of the NTL Inc. Holding Group (other than the Parent) or the Group). "NTL INC. HOLDING GROUP" means the Parent (or, after the acquisition of the Parent by NTL Holdings Inc., NTL Holdings Inc.) and the Shareholder's other holding companies. "NTL NOTES" means, to the extent such have been issued in either domestic or international capital markets, the bonds, notes or similar public debt instruments issued by members of the NTL Inc. Group or, as the case may be, members of the NTL Inc. Holding Group (in each case where such members of the NTL Inc. Group or NTL Inc. Holding Group are incorporated in any state of the United States of America) and outstanding at or at any time after the date of this Agreement. "NTL SPV INC." means NTL Switzerland SPV, Inc., a newly incorporated Delaware company, being a wholly owned subsidiary of the Parent. "NTL SPV LLC" means NTL Switzerland Holdings SPV LLC, a newly formed Delaware limited liability corporation, being a wholly owned subsidiary of NTL SPV Inc. "OBLIGORS" means the Borrowers and the Guarantors. - 15 - 19 "OPERATING COMPANIES" means the members of the Restricted Group named in Part B of Schedule 1 (The Original Parties). "ORIGINAL FINANCIAL STATEMENTS" means: (a) in relation to the Cablecom Business, the audited pro-forma combined financial statements of the companies which constitute the Cablecom Business on the Acquisition Date, for the financial year ended 31 December 1999 based on the Vendor's audited consolidated financial statements for its financial year ended 31 December 1999; (b) in relation to each Obligor (other than the Shareholder), its audited financial statements for its financial year ended 31 December 1998; (c) in relation to each Obligor (other than the Shareholder), its audited balance sheet as at 31 December 1999; and (d) in relation to any Additional Obligor, its audited financial statements delivered pursuant to Schedule 8 (Additional Conditions Precedent). "ORIGINAL OBLIGORS" means the Original Borrowers and the Original Guarantors. "ORIGINAL TERM ADVANCE" means an advance (as from time to time consolidated, divided or reduced by repayment) made or to be made by the Banks under the Original Term Facility. "ORIGINAL TERM AVAILABILITY PERIOD" means, in relation to the Original Term Facility, the period from and including the date hereof to and including the earlier of (a) 31 October 2000 and (b) the first Business Day on which the Available Term Commitment of each of the Banks is zero. "ORIGINAL TERM FACILITY" means the Swiss Franc term loan facility granted to the Borrowers in this Agreement. "ORIGINAL TERM LOAN" means, at any time, the aggregate principal amount of outstanding Original Term Advances at such time. "ORIGINAL TERM REPAYMENT DATE" means each of the dates specified in Clause 10.1 (Original Term Loan Repayment Instalments), PROVIDED THAT if such date is not a Business Day, it shall be deemed to be the next succeeding Business Day. "PARTICIPATING MEMBER STATE" means each member state of the European Union which has adopted the euro as its lawful currency at the relevant time. "PERMITTED ACQUISITIONS" means any of the following: (a) acquisitions of (or of any interests in) companies, partnerships, consortia, joint ventures or other arrangements made by the Shareholder or a newly incorporated subsidiary of the Shareholder referred to in paragraph (b) below, - 16 - 20 where the relevant company, partnership, consortium, joint venture or other arrangement: (i) engages in, or the business, licence, revenues or assets of such a company, partnership, consortium, joint venture or other arrangement relate to, the operation of a telecommunications and/or cable and/or television and/or telephone network or system or the provision of such services; and (ii) operates primarily within Switzerland, the European Union or any other country in Europe; (b) the purchase, subscription for, or other acquisition of any shares by: (i) the Shareholder in a newly incorporated company which becomes a subsidiary of the Shareholder, where such subsidiary's primary purpose is to make acquisitions within paragraph (a) above; or (ii) any member of the Restricted Group in a newly incorporated Swiss company which becomes a subsidiary of that member of the Restricted Group, where such subsidiary's only activity is to make acquisitions within paragraph (d) and/or paragraph (e) below; (c) acquisitions comprising the purchase, subscription for, or other acquisition of any new shares in: (i) any Obligor by any other Obligor, where (a) such acquiring Obligor is and remains the immediate holding company of the Obligor issuing the new shares and (b) such shares are made subject to a Share Pledge; or (ii) any member of the Restricted Group by another member of the Restricted Group which is not an Obligor; (d) acquisitions of (or of any interests in) (A) companies, partnerships, consortia, joint ventures or other arrangements or (B) businesses, licences, revenues or assets made by any member of the Restricted Group, where: (i) the aggregate consideration for such acquisitions under this paragraph (d) does not exceed CHF50,000,000; (ii) the acquired company, partnership, consortium, joint venture or other arrangement or the acquired business, licence, revenues or asset (a) engages in or, as the case may be, relates to the operation of a telecommunications and/or cable and/or television and/or telephone network or system or the provision of such services and (b) primarily operates or, as the case may be, is located within Switzerland; and - 17 - 21 (iii) the Financial Indebtedness of any acquired company which becomes a member of the Restricted Group, outstanding immediately after the acquisition, comprises only Permitted Financial Indebtedness; (e) acquisitions made by any member of the Restricted Group, where: (i) if such acquisition is an acquisition of a company, partnership, consortium, joint venture or other person, the acquired entity has, for its most recent financial year, positive earnings before interest, depreciation, amortisation and tax (calculated on the same basis as EBITDA); (ii) the consideration for such acquisition is financed out of Subordinated Funding and/or Available Excess Cash Flow; (iii) the acquired company, partnership, consortium, joint venture or other arrangement or the acquired business, licence, revenues or asset (a) engages in or, as the case may be, relates to the operation of a telecommunications and/or cable and/or television and/or telephone network or system or the provision of such services and (b) primarily operates or, as the case may be, is located within Switzerland; and (iv) the Financial Indebtedness of any acquired company which becomes a member of the Restricted Group, outstanding immediately after the acquisition, comprises only Permitted Financial Indebtedness; (f) acquisitions comprising the acquisition of any assets, revenues or, licences of, or the business or any interest therein of: (i) any member of the Restricted Group who is not an Obligor by another member of the Restricted Group who is not an Obligor; or (ii) any Obligor by another Obligor, where the disposal of such an asset, revenue, licence or business is a Permitted Disposal under paragraph (e) of the definition thereof; and (g) acquisitions of any shares, assets, revenues or licences of, or the business or any interest therein of, a member of the Restricted Group by another member of the Restricted Group, where such an acquisition is made to effect the Reorganisation or an Additional Merger. "PERMITTED DISPOSALS" means any disposal: (a) made in the ordinary and usual course of business; - 18 - 22 (b) on arm's length commercial terms of an asset by a member of the Restricted Group who is not an Obligor; (c) for cash on arm's length commercial terms of any surplus or obsolete assets no longer required for the efficient operation of the business of the Restricted Group; (d) of cash, where such a disposal is not otherwise prohibited by the Finance Documents; (e) by an Obligor to another Obligor, provided that: (i) if the relevant assets are subject to an Encumbrance pursuant to a Security Document, they remain so or become subject to a similar Encumbrance in favour of the Finance Parties in the hands of the acquiring Obligor; and (ii) the acquiring Obligor is a Guarantor, and the Principal Borrower demonstrates (to the reasonable satisfaction of the Agent) that the freely distributable reserves of the acquiring Obligor, immediately following such a disposal, will be at least equal to the freely distributable reserves of the disposing Obligor; (f) on (A) arm's length commercial terms for cash consideration or (B) in exchange for similar assets located in Switzerland (or, in the case of a disposal by a member of the Restricted Group incorporated in Austria, located in Austria) which the Agent (acting reasonably) determines to be of a comparable or superior quality, provided that in each case: (i) the Net Average Revenue Contributions at no time exceed 15 per cent; and (ii) the proceeds of any disposal under (A) of this paragraph (f) are applied in accordance with Clause 13.2 (Mandatory Prepayment from Asset Disposals); (g) of an interest in real property by way of a lease or licence granted by a member of the Restricted Group to another member of the Restricted Group on arm's length commercial terms; (h) by a member of the Restricted Group who is not an Obligor to another member of the Restricted Group who is not an Obligor; and (i) necessary to effect the Reorganisation or an Additional Merger. - 19 - 23 "PERMITTED DISTRIBUTIONS" means: (a) the payment or declaration of any dividend, return on capital, repayment of capital contributions or other distribution or payment in respect of share capital by any member of the Restricted Group other than: (i) by the Principal Borrower and, prior to the Initial Mergers, CC AG; or (ii) by a member of the Restricted Group who is an Obligor to another member of the Restricted Group who is not an Obligor; and (b) the payment or declaration of any dividend, return on capital, repayment of capital contributions or other distribution or payment in respect of share capital by the Principal Borrower, or the repayment of principal or payment of interest on Subordinated Funding by the Principal Borrower or any other member of the Restricted Group, in each case where: (i) no Event of Default is continuing; and (ii) such payment, dividend, distribution or, as the case may be, repayment is funded out of Available Excess Cash Flow. "PERMITTED ENCUMBRANCE" means: (a) any Encumbrance relating to the Existing Mortgages, to the extent such Encumbrances relate only to the assets identified in Schedule 12 (Existing Mortgages); (b) any Encumbrance over or affecting any asset acquired by a member of the Restricted Group after the date hereof and subject to which such asset is acquired, if: (i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Restricted Group; and (ii) the Financial Indebtedness secured by such Encumbrance at all times falls within paragraph (k) of the definition of Permitted Financial Indebtedness; (c) any Encumbrance over or affecting any asset of any company which becomes a member of the Restricted Group after the date hereof, where such Encumbrance is created prior to the date on which such company becomes a member of the Restricted Group, if: (i) such Encumbrance was not created in contemplation of the acquisition of such company; and - 20 - 24 (ii) the Financial Indebtedness secured by such Encumbrance at all times falls within paragraph (k) of the definition of Permitted Financial Indebtedness; (d) any netting or set-off arrangement entered into by any member of the Restricted Group in the normal course of its banking arrangements for the purpose of netting its debit and credit balances; (e) any right of set-off or any title transfer or retention of title arrangement entered into by any member of the Restricted Group in the normal course of its trading activities on the counterparty's standard or usual terms (where such terms reasonably accord with the terms generally adopted in the market to which such a trading activity relates); (f) any lien arising by operation of law or by a contract having a similar effect and in each case arising or entered into in the normal course of business, if such lien is discharged within thirty days of arising; (g) any Encumbrance created pursuant to, arising under or evidenced by the Security Documents; (h) any Encumbrance created by any arrangements referred to in paragraph (e) or paragraph (f) of the definition of Indebtedness for Borrowed Money; (i) any Encumbrance arising pursuant to an order of attachment, an injunction restraining the disposal of assets or any similar legal process in each case arising in connection with court proceedings being diligently conducted by the relevant Obligor in good faith; (j) any Encumbrance over cash deposited as security for the relevant Obligor's obligations in respect of a performance bond, guarantee, standby letter of credit or similar facility entered into by such an Obligor in the ordinary course of business; (k) any Encumbrance securing Permitted Financial Indebtedness within paragraph (j) of the definition of Permitted Financial Indebtedness (other than (save for the assignment of receivables granted by Cablecom (Bern) AG and referred to in sub-clause 22.11.4 of Clause 22.11 (Security)) an Encumbrance by way of assignment over receivables assigned by the Receivables and Receivables Account Assignment); and (l) any Encumbrance over receivables (other than an Encumbrance by way of an assignment over receivables assigned by the Receivables and Receivables Account Assignment) entered into by any member of the Restricted Group in the normal course of its banking arrangements in favour of any Swiss bank with whom it maintains accounts PROVIDED THAT (a) such Encumbrance is in existence on the date of this Agreement, (b) that Encumbrance does not secure any outstanding indebtedness of the relevant member of the Restricted Group - 21 - 25 to the relevant bank, (c) the relevant member of the Group is entitled to have such Encumbrance discharged by the relevant bank and (d) such Encumbrance is discharged within 20 Business Days of the date of this Agreement. "PERMITTED FACILITIES" means the Secured Permitted Facilities and any other bank facilities made available to members of the Group (on normal commercial terms) PROVIDED THAT the aggregate indebtedness of all members of the Group in respect of the Secured Permitted Facilities and such other bank facilities at no time exceeds CHF40,000,000 (or its equivalent). "PERMITTED FACILITIES PROVIDER" means the financial institution (if any) which has become the Permitted Facilities Provider in accordance with Clause 37 (Permitted Facilities Provider). "PERMITTED FINANCIAL INDEBTEDNESS" means any Financial Indebtedness: (a) arising under or permitted pursuant to the Finance Documents; (b) in respect of the Subordinated NTL CV1 Debt; (c) in respect of any Additional Subordinated Debt; (d) arising under Permitted Treasury Transactions; (e) of the Shareholder, where: (i) such Financial Indebtedness does not oblige or permit the Shareholder to make any interest payments at any time prior to the date five years after the date hereof (any interest accruing during such a five year period being capitalised with the principal amount outstanding); (ii) such Financial Indebtedness does not have any scheduled repayments or other amortisations prior to 30 September 2010 and has a final maturity date on or after 30 September 2010; and (iii) the proceeds of such Financial Indebtedness are applied by the Shareholder towards Subordinated Funding; (f) arising under Permitted Loans and Guarantees; (g) secured by the Existing Mortgages PROVIDED THAT the amount of Financial Indebtedness secured by each Existing Mortgage does not exceed the relevant amount set out in Schedule 12 (Existing Mortgages); (h) falling within paragraph (e) of the definition of Indebtedness for Borrowed Money ("FINANCE LEASE DEBT") which, when aggregated with any other Finance Lease Debt incurred or by each member of the Restricted Group does not exceed CHF5,000,000 (or its equivalent); - 22 - 26 (i) arising under Permitted Facilities; (j) in respect of Existing Indebtedness PROVIDED THAT such Existing Indebtedness is refinanced by an Original Term Advance within 30 days of the date of this Agreement; and (k) not falling within paragraphs (a) to (j) above PROVIDED THAT the aggregate amount does not exceed CHF10,000,000 (or its equivalent) . "PERMITTED JOINT VENTURE" means either the disposal of shares in the Shareholder or any member of the NTL Inc. Holding Group to, or the issue of further shares by the Shareholder or any member of the NTL Inc. Holding Group to, a company or a subsidiary of a company: (a) which engages primarily in the operation of a telecommunications network; and (b) rated at least A by Standard and Poor's Rating Corporation and A2 by Moody's Investors Services, Inc. "PERMITTED LOANS AND GUARANTEES" means any of the following: (a) trade credit or indemnities granted in the ordinary course of business on usual and customary terms; (b) Intra-Group Loans made by a member of the Restricted Group who is not an Obligor to any other member of the Restricted Group who is not an Obligor; (c) Intra-Group Loans made by a member of the Restricted Group who is not an Obligor to a member of the Restricted Group who is an Obligor, where the rights of the lending member of the Restricted Group have been (a) subordinated to the rights of the Finance Parties under the Finance Documents and (b) assigned to the Agent (or the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities, in each case by agreements or deeds approved by the Agent; (d) Intra-Group Loans made by one Obligor to another Obligor, where: (i) in respect of each relevant borrower Obligor, the aggregate amount of such Intra-Group Loans to that Obligor which are outstanding, at the time of the delivery by the Principal Borrower of a certificate in respect of that borrower Obligor in accordance with sub-clause 20.2.2 of Clause 20.2 (Quarterly Statements), do not exceed the Maximum Intra-Group Loans for that borrower Obligor set out in such a certificate or are (within 10 Business Days of the delivery of such certificate) reduced to an amount no greater than - 23 - 27 the Maximum Intra-Group Loans for that Obligor as set out in such a certificate; (ii) the rights of the lending Obligor under such an Intra-Group Loan have been assigned to the Agent (or the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities by an agreement or deed approved by the Agent; and (iii) if such an Intra-Group Loan is made by the Shareholder it constitutes either Subordinated NTL CV1 Debt or Additional Subordinated Debt; (e) the Intra-Group Loans owed by Cablecom Suisse Romande SA and Cablecom Engineering AG to the Principal Borrower following the completion of paragraph (a) of the definition of the Reorganisation; (f) loans made to employees of any members of the Restricted Group, to a maximum aggregate amount of CHF100,000; (g) Intra-Group Loans existing at the date hereof which do not fall within paragraph (d) above and which have been disclosed in the Disclosure Letter; and (h) any other Intra-Group Loans approved by the Agent (acting on the instructions of an Instructing Group, acting reasonably). "PERMITTED TREASURY TRANSACTIONS" means: (a) the Treasury Transactions entered into in accordance with Clause 22.26 (Hedging); and (b) any other foreign exchange transactions for spot or forward delivery entered into in the ordinary course of business (and not for investment or speculative purposes) to hedge currency exposures incurred by members of the Restricted Group. "POTENTIAL EVENT OF DEFAULT" means any event which would become (with the passage of time, the giving of notice, the making of any determination hereunder or any combination thereof) an Event of Default. "PROPORTION" means, in relation to a Bank: (a) whilst no Advances are outstanding, the proportion borne by its Commitment to the Total Commitments (or, if the Total Commitments are then zero, by its Commitment to the Total Commitments immediately prior to their reduction to zero); or - 24 - 28 (b) whilst at least one Advance is outstanding, the proportion borne by its share of the Loan to the Loan. "QUALIFYING LENDER" means a financial institution which qualifies as a bank pursuant to the laws of its jurisdiction of incorporation and which carries on a genuine banking activity as per explanatory note of the Swiss Federal Tax Administration No. S-02.128 (1.2000). "QUOTATION DATE" means, in relation to any period for which an interest rate is to be determined under the Finance Documents, the day on which quotations would ordinarily be given by prime banks in the London Interbank Market for deposits in Swiss Francs (or the currency of any Unpaid Sum) for delivery on the first day of that period, PROVIDED THAT, if, for any such period, quotations would ordinarily be given on more than one date, the Quotation Date for that period shall be the last of those dates. "RADIO AND TELEVISION ACT" means the Swiss Radio and Television Act ("Bundesgesetz uber Radio und Fernsehen", "RTVB") of 21 June 1991 and all of the ordinances implementing such. "RECEIVABLE ACCOUNTS" means, with respect of each member of the Restricted Group, the bank account(s) into which all the receivables (if any) due to such member of the Restricted Group are paid and such other bank accounts identified in the Receivables and Receivables Accounts Assignment. "RECEIVABLES AND RECEIVABLES ACCOUNTS ASSIGNMENT" means the assignment agreement(s) entered into by the Operating Companies, assigning each Operating Company's rights to all current and future receivables due to it from its trade debtors or subscribers, all current and future monetary claims due or owing to it and its rights in respect of its Receivable Accounts to the Agent (on behalf of the Finance Parties) as security for the obligations of the Obligors under the Finance Documents and/or to the Permitted Facilities Provider as security for the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "REFERENCE BANKS" means the principal London offices of Bank of America, N.A., Paribas and The Chase Manhattan Bank or such other bank or banks as may from time to time be agreed between the Principal Borrower and the Agent acting on the instructions of an Instructing Group. "RELEVANT PERIOD" has the meaning given to it in Clause 21 (Financial Condition). "REORGANISATION" means: (a) the transfers, for deferred consideration, by the Principal Borrower of the entire issued share capital of (i) Coditel SA to Cablecom Suisse Romande SA and (ii) Cablecom Media AG to Cablecom Engineering SA; (b) the Initial Mergers; and - 25 - 29 (c) thereafter, the conversion of the Conversion Subsidiaries from joint stock companies ("AG"s) to limited liability companies ("GmbH"s) and the granting of the Reorganisation Share Pledges, in each case in accordance with the Reorganisation Summary. "REORGANISATION SHARE PLEDGES" means: (a) an Austrian law pledge over the shares in Cablecom KabelKommunication GmbH; and (b) Swiss law pledges in the agreed form over the shares in the Conversion Subsidiaries, such pledges being granted in favour of the Finance Parties and the Permitted Facilities Provider as security for the obligations of the Obligors under the Finance Documents and the documentation relating to the Secured Permitted Facilities. "REORGANISATION SUMMARY" means the step plan, in the agreed form, setting out the consents, authorisations and approvals and steps to be taken by the Shareholder and certain members of the Restricted Group to implement the Reorganisation. "REPAYMENT DATE" means, in relation to any Revolving Advance, the last day of the Term thereof. "REPEATED REPRESENTATIONS" means each of the representations set out in Clause 19.1 (Status) to Clause 19.6 (Audited Financial Statements), Clause 19.8 (No Material Adverse Change), Clause 19.11 (Legal and Beneficial Owner), sub-clause 19.16.1 of Clause 19.16 (No NTL Note Defaults), Clause 19.21 (No Material Defaults), Clause 19.23 (Budgets), Clause 19.24 (Other Information) (excluding sub-clause 19.24.1 thereof), Clause 19.27 (Encumbrances and Financial Indebtedness) and Clause 19.30 (Consents and Approvals) (excluding sub-clause 19.30.1 thereof) to Clause 19.33 (Good Title to Assets). "RESERVATIONS" means: (a) the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors, the time barring of claims under any applicable law, the possibility that an undertaking to assume liability for or to indemnify against nonpayment of any stamp duty or other tax may be void, defences of set-off or counterclaim and similar principles; (b) anything analogous to any of the matters set out in paragraph (a) above under any laws of any applicable jurisdiction; and (c) anything disclosed by any of the Legal Opinions. - 26 - 30 "RESIGNATION NOTICE" means a notice substantially in the form set out in Schedule 9 (Form of Resignation Notice). "RESTRICTED GROUP" means the Principal Borrower, the Principal Borrower's subsidiaries from time to time and, prior to the completion of the Initial Mergers, CC AG. "RESTRICTED OBLIGATIONS" means any obligations of a Swiss Obligor under (a) Clause 24 (Guarantee and Indemnity) and/or the Security Documents and (b) Clause 14 (Taxes), in each case in respect of: (a) a holding company of that Swiss Obligor; and/or (b) a subsidiary of a holding company of that Swiss Obligor, who is not that Swiss Obligor or a subsidiary of that Swiss Obligor. "REVOLVING ADVANCE" means an advance made or to be made by the Banks under the Revolving Facility. "REVOLVING COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, the amount set opposite its name under the heading "REVOLVING COMMITMENT" in Part C of Schedule 1 (The Original Parties). "REVOLVING FACILITY" means the Swiss Franc revolving loan facility granted to the Borrowers in this Agreement. "REVOLVING LOAN" means, at any time, the aggregate principal amount of the outstanding Revolving Advances at such time. "REVOLVING TERMINATION DATE" means 30 June 2003. "ROLLOVER ADVANCE" means a Revolving Advance which is used to refinance a maturing Revolving Advance and which is the same amount as such maturing Revolving Advance and is to be drawn on the day such maturing Revolving Advance is to be repaid. "SECOND LOAN AGREEMENT" means the loan agreement, in the agreed form, entered into between NTL SPV Inc. as lender and BV1 as borrower, setting out the terms on which the indebtedness owed by BV1 in respect of the Second Sale and Purchase Agreement remains outstanding. "SECOND SALE AND PURCHASE AGREEMENT" means the share sale and purchase agreement, in the agreed form, entered into in relation to the Hivedown, between NTL SPV Inc. as seller and BV1 as buyer of part of NTL SPV Inc.'s interest in CC AG and its entire interest in the Principal Borrower, the consideration payable by BV1 being represented by the B Debt. - 27 - 31 "SECURED PERMITTED FACILITIES" means any bank facilities (if any) made available by the Permitted Facilities Provider to members of the Restricted Group pursuant to documentation in the agreed form. "SECURITY" means the security from time to time constituted by or pursuant to the Security Documents and the guarantees provided hereunder. "SECURITY DOCUMENTS" means each of the following documents in agreed form delivered to the Agent in accordance with either Clause 2.3 (Conditions Precedent) or Clause 22.30 (The Reorganisation and Mortgages): (a) the Share Pledges; (b) the Receivables and Receivables Accounts Assignment; (c) the Subordinated NTL CV1 Debt Pledge; (d) the Acquisition Agreement Assignment; (e) the Mortgages; and (f) the Intra-Group Loan Assignments, together with any other document entered into by any member of the Group creating or evidencing an Encumbrance granted in favour of the Agent or, as the case may be, the Finance Parties for all or any part of the obligations of the Obligors or any of them under any of the Finance Documents and/or granted in favour of the Permitted Facilities Provider for all or any part of the obligations of any members of the Group under any documentation relating to the Secured Permitted Facilities. "SECURITY PARTIES" means the Finance Parties and the Permitted Facilities Provider. "SECURITY PROCEEDS" means all receipts or recoveries by the Agent (or by any of the Finance Parties or by the Permitted Facilities Provider) pursuant to, or upon enforcement of, the Security and all other monies which are by the terms of any of the Finance Documents to be applied in accordance with Clause 30.7 (Application of Security Proceeds), after deducting (to the extent not already deducted or retained prior to such receipt or recovery by the Agent or, as the case may be, any other Security Party): (a) all sums which are by law or contract payable to any receiver of the assets subject to the Security; (b) all sums which the Agent is required by the terms of any of the Security Documents to pay to any other person before distributing any such receipts or recoveries to any of the Security Parties and/or discharging any of the obligations secured by the Security Documents; and (c) all sums which the Agent is by law required to pay to any person in priority to the Security Parties. - 28 - 32 "SENIOR DEBT" has the meaning given to it in Clause 21 (Financial Condition). "SHARE PLEDGES" means the Initial Share Pledges and, following the Reorganisation, the Reorganisation Share Pledges. "SUBORDINATED NTL CV1 DEBT" means the indebtedness owed by the Principal Borrower to NTL CV1 in respect of the A Debt and the C Debt, such indebtedness being subordinated by the Subordination Deed and pledged by the Subordinated NTL CV1 Debt Pledge. "SUBORDINATED NTL CV1 DEBT PLEDGE" means the pledge agreement in the agreed form between NTL SPV LLC (as the general partner of NTL CV1) and the Agent (on behalf of the Finance Parties), pursuant to which NTL CV1 pledges its rights in respect of the Subordinated NTL CV1 Debt to the Finance Parties as security for the obligations of the Obligors under the Finance Documents. "SUBORDINATED FUNDING" means: (a) the subscription by the Shareholder or any member of the NTL Inc. Holding Group, for new equity capital of either the Principal Borrower or, prior to the completion of the Initial Mergers, CC AG; (b) the Subordinated NTL CV1 Debt; and (c) any Additional Subordinated Debt. "SUBORDINATION DEED" means the subordination deed in the agreed form between the Agent (for itself and for and on behalf of the other Finance Parties) and NTL SPV LLC (as the general partner of NTL CV1), pursuant to which the Subordinated NTL CV1 Debt is subordinated to the Principal Borrower's obligations under the Finance Documents and any documentation relating to the Secured Permitted Facilities. "SWISS OBLIGOR" means an Obligor incorporated under the laws of Switzerland. "SYNDICATION DATE" means the earlier of (i) the day specified by the Arrangers, after having given five Business Days' prior notice to the Shareholder, as the day on which primary syndication of the Facilities is completed and (ii) 30 June 2000. "TELECOMMUNICATION ACT" means the Swiss Telecommunications Act ("Fernmeldegesetz FMG") of 30 April 1997, together with all of the ordinances implementing such. "TERM" means, save as otherwise provided herein, in relation to any Revolving Advance, the period for which such Revolving Advance is borrowed, as specified in the Notice of Drawdown relating thereto. "TERM ADVANCE" means an Original Term Advance or a Term-Out Advance. - 29 - 33 "TERM COMMITMENT" means, in relation to a Bank at any time and save as otherwise provided herein, the amount set opposite its name under the heading "TERM COMMITMENT" in Part C of Schedule 1 (The Original Parties). "TERM FACILITIES" means the Original Term Facility and the Term-Out Facility. "TERM-OUT ADVANCE" means an advance (as from time to time reduced by repayment) under the Term-Out Facility arising from the conversion of Revolving Advances outstanding on the Revolving Termination Date. "TERM-OUT FACILITY" means the Revolving Facility as converted into a Swiss Franc term loan facility in accordance with Clause 11 (Repayment of the Revolving Facility and Term-Out Option). "TERM-OUT LOAN" means, at any time, the aggregate principal amount of outstanding Term-Out Advances at such time. "TERM-OUT REPAYMENT DATE" means each of the dates specified in Clause 11.10 (Term-Out Loan Repayment Instalments) PROVIDED THAT if such date is not a Business Day it shall be deemed to be the next succeeding Business Day. "THIRD LOAN AGREEMENT" means the loan agreement, in the agreed form, entered into between BV1 as lender and the Principal Borrower as borrower, setting out the terms on which the indebtedness owed by the Principal Borrower in respect of the Third Sale and Purchase Agreement remains outstanding. "THIRD SALE AND PURCHASE AGREEMENT" means the share sale and purchase agreement, in the agreed form, entered into in relation to the Hivedown, between BV1 as seller and the Principal Borrower as buyer of Cablecom (Mittelland) AG, the consideration payable by the Principal Borrower being represented by the C Debt. "TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks' Commitments. "TRANSFER CERTIFICATE" means a certificate substantially in the form set out in Schedule 2 (Form of Transfer Certificate) or in such other form as may be agreed between the Principal Borrower and the Agent signed by a Bank and a Transferee under which: (a) such Bank seeks to procure the transfer to such Transferee of all or a part of such Bank's rights, benefits and obligations under the Finance Documents upon and subject to the terms and conditions set out in Clause 34.3 (Assignments and Transfers by Banks); and (b) such Transferee undertakes to perform the obligations it will assume as a result of delivery of such certificate to the Agent as contemplated in Clause 34.5 (Transfers by Banks). "TRANSFER DATE" means, in relation to any Transfer Certificate, the date for the making of the transfer as specified in such Transfer Certificate. - 30 - 34 "TRANSFEREE" means a person to which a Bank seeks to transfer by novation all or part of such Bank's rights, benefits and obligations under the Finance Documents. "TREASURY TRANSACTION" means any currency or interest purchase, cap or collar agreement, forward rate agreements, interest rate or currency future or option contract, foreign exchange or currency purchase or sale agreement, interest rate swap, currency swap or combined interest rate and currency swap agreement and any other similar agreement. "UNPAID SUM" means the unpaid balance of any of the sums referred to in Clause 27.1 (Default Interest Periods). "VENDOR" means Cablecom Holding AG. 1.2 INTERPRETATION Any reference in this Agreement to: the "AGENT", an "ARRANGER", any "HEDGE COUNTERPARTY", the "PERMITTED FACILITIES PROVIDER" or any "BANK" shall be construed so as to include it and any subsequent successors and permitted transferees in accordance with their respective interests; an "AFFILIATE" of a person shall be construed as a reference to a subsidiary of that person or a holding company of that person or any other subsidiary or holding company of that holding company; "AGREED FORM" in relation to any document means a form which is initialled by each of the Agent and the Principal Borrower for the purposes of identification (as such form may be amended from time to time by agreement between such parties) or a document executed on or before the Acquisition Date by the Principal Borrower and the Agent or, if not so executed or initialled, is in form and substance reasonably satisfactory to the Agent; "ASSETS" includes present and future properties, revenues and rights of every description; "CONTINUING", in relation to an Event of Default, shall be construed as a reference to an Event of Default which has not been waived in writing or remedied and, in relation to a Potential Event of Default, one which has not been remedied within the relevant grace period or waived in accordance with the terms hereof; "DISPOSAL" includes any sale, lease, transfer or other disposal; the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of an amount denominated in another currency (the "SECOND CURRENCY") is a reference to the amount of the first currency which could be purchased with the amount of the second currency at the spot rate of exchange quoted by the Agent at or about 11.00 a.m. on such date for the purchase of the first currency with the second currency; - 31 - 35 a "HOLDING COMPANY" of a company or corporation shall be construed as a reference to any company or corporation of which the first-mentioned company or corporation is a subsidiary; "INDEBTEDNESS" shall be construed so as to include any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; a "LAW" shall be construed as any law (including common or customary law), statute, constitution, decree, judgment, treaty, regulation, directive, bye-law, order or any other legislative measure of any government, supranational, local government, statutory or regulatory body or court; a "MONTH" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month save that: (a) if any such numerically corresponding day is not a Business Day, such period shall end on the immediately succeeding Business Day to occur in that next succeeding calendar month or, if none, it shall end on the immediately preceding Business Day; and (b) if there is no numerically corresponding day in that next succeeding calendar month, that period shall end on the last Business Day in that next succeeding calendar month, (and references to "MONTHS" shall be construed accordingly); a "PERSON" shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing; "REPAY" (or any derivative form thereof) shall, subject to any contrary indication, be construed to include "PREPAY" (or, as the case may be, the corresponding derivative form thereof) and vice versa; a "SUBSIDIARY" of a company or corporation shall be construed as a reference to any company or corporation: (a) which is controlled, directly or indirectly, by the first-mentioned company or corporation; (b) more than half the issued share capital of which is beneficially owned, directly or indirectly, by the first-mentioned company or corporation; or (c) which is a subsidiary of another subsidiary of the first-mentioned company or corporation - 32 - 36 and, for these purposes, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body; a "SUCCESSOR" shall be construed so as to include an assignee or successor in title of such party and any person who under the laws of its jurisdiction of incorporation or domicile has assumed the rights and obligations of such party under this Agreement or to which, under such laws, such rights and obligations have been transferred; "TAX" shall be construed so as to include any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); "VAT" shall be construed as a reference to value added tax including any similar tax which may be imposed in place thereof from time to time; a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be construed as a reference to any company or corporation which has no other members except that other company or corporation and that other company's or corporation's wholly-owned subsidiaries or persons acting on behalf of that other company or corporation or its wholly-owned subsidiaries; and the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors. 1.3 CURRENCY SYMBOLS 1.3.1 "CHF" and "SWISS FRANCS" denote lawful currency of Switzerland. 1.3.2 "EURO" means the single currency of the European Union as constituted by the treaty on European Union and as referred to in EMU Legislation and "EURO UNIT" means the currency unit of the euro as defined in the EMU Legislation. 1.4 AGREEMENTS AND STATUTES Any reference in this Agreement to: 1.4.1 this Agreement or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document as the same may have been, or may from time to time be, amended, varied, novated or supplemented; and 1.4.2 a statute or treaty shall be construed as a reference to such statute or treaty as the same may have been, or may from time to time be, amended or, in the case of a statute, re-enacted. - 33 - 37 1.5 HEADINGS Clause and Schedule headings are for ease of reference only. 1.6 TIME Any reference in this Agreement to a time of day shall, unless a contrary indication appears, be a reference to London time. 1.7 THIRD PARTY RIGHTS A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. 2. THE FACILITIES 2.1 GRANT OF THE FACILITIES The Banks grant to the Borrowers, upon the terms and subject to the conditions hereof: 2.1.1 a Swiss Franc term loan facility in an aggregate amount of CHF2,700,000,000; and 2.1.2 a Swiss Franc revolving loan facility in an aggregate amount of CHF1,400,000,000 (such facility being convertible into the Term-Out Facility). 2.2 PURPOSE AND APPLICATION The Facilities are intended for the following purposes: 2.2.1 the Original Term Facility is intended (a) to finance the acquisition by the Principal Borrower of that part of the Cablecom Business not acquired by NTL SPV Inc. and transferred to the Shareholder and the Principal Borrower pursuant to the Hivedown, (b) to refinance the existing indebtedness (other than Permitted Financial Indebtedness) of the Borrowers and (c) to finance, in an amount of up to CHF30,000,000, working capital of the Borrowers; 2.2.2 the Revolving Facility is intended to finance operating expenses, working capital and other capital expenditure of the Borrowers and for the Borrowers' general corporate financing requirements; and 2.2.3 the Term-Out Facility is intended to refinance Revolving Advances outstanding on the Revolving Termination Date, and, accordingly, each Borrower shall apply all amounts raised by it hereunder in or towards satisfaction of the consideration for such acquisition, refinancings, operating expenses, working capital requirements, capital expenditure or (as the case may be) its general corporate financing requirements and none of the Finance Parties shall be obliged to concern themselves with such application. 2.3 CONDITIONS PRECEDENT Save as the Banks may otherwise agree, none of the Borrowers may deliver any Notice of Drawdown unless the Agent has confirmed to the Principal Borrower and the Banks - 34 - 38 that it has received all of the documents and other evidence listed in Schedule 3 (Conditions Precedent) and that each is, in form and substance, satisfactory to the Agent. The Agent shall notify the Principal Borrower and the Banks promptly upon being so satisfied. 2.4 BANKS' OBLIGATIONS SEVERAL The obligations of each Bank are several and the failure by a Bank to perform its obligations hereunder shall not affect the obligations of an Obligor towards any other party hereto nor shall any other party be liable for the failure by such Bank to perform its obligations hereunder. 2.5 BANKS' RIGHTS SEVERAL The rights of each Bank are several and any debt arising hereunder at any time from an Obligor to any of the other parties hereto shall be a separate and independent debt. Each such party shall be entitled to protect and enforce its individual rights arising out of this Agreement independently of any other party (so that it shall not be necessary for any party hereto to be joined as an additional party in any proceedings for this purpose). 3. UTILISATION OF THE ORIGINAL TERM FACILITY 3.1 DRAWDOWN CONDITIONS FOR ORIGINAL TERM ADVANCES An Original Term Advance will be made by the Banks to a Borrower if: 3.1.1 during the Notice Period, or such other period as the Agent (acting on the instructions of all of the Banks) may agree, the Agent has received a completed Notice of Drawdown from such Borrower; 3.1.2 the proposed date for the making of such Original Term Advance is a Business Day within the Original Term Availability Period; 3.1.3 the proposed amount of such Original Term Advance is (a) (if less than the Available Term Facility) an amount equal to or greater than CHF50,000,000 (or such lesser amount as the Principal Borrower and the Agent may agree in respect of an Original Term Advance to be utilised to refinance Existing Indebtedness) or (b) equal to the amount of the Available Term Facility; 3.1.4 excluding Original Term Advances utilised to refinance Existing Indebtedness (the maximum number of which shall be agreed between the Principal Borrower and the Agent), there would not, immediately after the making of such Original Term Advance, be more than four Original Term Advances outstanding; 3.1.5 neither of the events mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause 8.1 (Market Disruption) shall have occurred; and - 35 - 39 3.1.6 on and as of the proposed date for the making of such Original Term Advance: (a) in the case of Original Term Advances made on the Acquisition Date, (i) no Acquisition Event of Default or Acquisition Potential Event of Default is continuing and (ii) the Acquisition Repeated Representations are true in all material respects; or (b) in all other cases, (i) no Event of Default or Potential Event of Default is continuing and (ii) the Repeated Representations are true in all material respects. 3.2 EACH BANK'S PARTICIPATION IN ORIGINAL TERM ADVANCES Each Bank will participate through its Facility Office in each Original Term Advance made pursuant to Clause 3.1 (Drawdown Conditions for Original Term Advances) in the proportion borne by its Available Term Commitment to the Available Term Facility immediately prior to the making of that Original Term Advance. 3.3 REDUCTION OF AVAILABLE TERM COMMITMENT If a Bank's Available Term Commitment is reduced in accordance with the terms hereof after the Agent has received the Notice of Drawdown for an Original Term Advance and such reduction was not taken into account in the Available Term Facility, then the amount of that Original Term Advance shall be reduced accordingly. 4. INTEREST PERIODS FOR ORIGINAL TERM ADVANCES 4.1 ORIGINAL TERM ADVANCE INTEREST PERIODS The period for which an Original Term Advance is outstanding shall be divided into successive periods each of which (other than the first, which shall begin on the day such Original Term Advance is made) shall start on the last day of the preceding such period. 4.2 ORIGINAL TERM ADVANCE INTEREST PERIOD DURATION The duration of each Interest Period in respect of an Original Term Advance shall, save as otherwise provided herein, be one, two, three or six months or such other period as the Agent (acting on the instructions of all of the Banks) may agree, in each case as the Borrower to which such Original Term Advance is made may during the Notice Period, or such other period as the Agent may agree, by written notice to the Agent select (or, as the case may be, request and agree), PROVIDED THAT: 4.2.1 if such Borrower fails to give such notice of its selection in relation to an Interest Period, the duration of that Interest Period shall, subject to subclauses 4.2.2 , 4.2.3 and 4.2.4, be three months; 4.2.2 any Interest Period in respect of an Original Term Advance which begins at the same time as any other Interest Period in respect of an Original Term Advance borrowed by the same Borrower shall end at the same time as that other Interest Period; - 36 - 40 4.2.3 any Interest Period which would otherwise end during the month preceding, or extend beyond, an Original Term Repayment Date shall, if necessary to ensure that sufficient Original Term Advances mature on that Original Term Repayment Date to allow the relevant scheduled repayment of the Original Term Loan to be made, be of such duration that it shall end on that Original Term Repayment Date; and 4.2.4 prior to the Syndication Date, Interest Periods shall be one month or, if less, such duration necessary to end on the Syndication Date or such other period as the Arrangers and the Principal Borrower may agree. 4.3 CONSOLIDATION OF ORIGINAL TERM ADVANCES If two Interest Periods relating to Original Term Advances end at the same time and such Original Term Advances have been made to the same Borrower then, on the last day of those Interest Periods, the Original Term Advances to which they relate shall be consolidated into and treated as a single Original Term Advance. 4.4 DIVISION OF ORIGINAL TERM ADVANCES The Borrower to which an Original Term Advance is made may, by not less than five Business Days' prior written notice to the Agent, direct that such Original Term Advance shall, at the beginning of any Interest Period relating thereto, be divided into (and thereafter, save as otherwise provided herein, treated in all respects as) two or more Original Term Advances in such amounts (in aggregate, equalling the amount of the Original Term Advance being so divided) as shall be specified by such Borrower in such notice, PROVIDED THAT such Borrower shall not be entitled to make such a direction if: 4.4.1 as a result of so doing, there would, excluding Original Term Advances utilised to refinance Existing Indebtedness, be more than four outstanding Original Term Advances; or 4.4.2 any Original Term Advance thereby coming into existence would be of an amount less than CHF50,000,000. 5. PAYMENT AND CALCULATION OF INTEREST ON ORIGINAL TERM ADVANCES 5.1 PAYMENT OF INTEREST On the last day of each Interest Period of an Original Term Advance (and, if the duration of an Interest Period exceeds six months, on the expiry of each period of six months during such Interest Period) the Borrower to whom such Original Term Advance has been made shall pay accrued interest on such Original Term Advance. 5.2 CALCULATION OF INTEREST The rate of interest applicable to an Original Term Advance from time to time during an Interest Period relating thereto shall be the rate per annum which is the sum of: 5.2.1 the Margin at such time; - 37 - 41 5.2.2 the Mandatory Cost Rate; and 5.2.3 LIBOR. 5.3 MARGIN RATCHET From the date of this Agreement until the date 12 months after the Acquisition Date, the Margin will be 2.50 per cent. per annum. Thereafter, in accordance with the provisions of Clause 5.4 (Margin Changes) and subject to Clause 5.5 (Default Margin), the Margin shall be the percentage rate per annum determined by the ratio of Senior Debt to Annualised EBITDA in respect of the most recent Financial Quarter in accordance with the table set out below.

RATIO OF SENIOR DEBT TO ANNUALISED MARGIN EBITDA (PER CENT. PER ANNUM) ---------------------------------- --------------------- Greater than 6.0:1 2.50 Equal to or less than 6.0:1 but greater than 5.0:1 2.00 Equal to or less than 5.0:1 but greater than 4.0:1 1.75 Equal to or less than 4.0:1 but greater than 3.0:1 1.25 Equal to or less than 3.0:1 0.75

5.4 MARGIN CHANGES Any reduction or increase to the Margin provided for by Clause 5.3 (Margin Ratchet) shall take effect in relation to all existing Advances and future Advances, in each case with effect from the date the Agent receives the Principal Borrower's Compliance Certificate in accordance with Clause 20.4 (Compliance Certificates) for its most recent Financial Quarter. Any change in the Margin applicable to an existing Advance shall only relate to the remainder of the current Interest Period or Term of such an Advance. 5.5 DEFAULT MARGIN The Margin shall be 2.50 per cent. per annum from the date determined by the Agent (acting reasonably) (in writing) as being the date on which an Event of Default or Potential Event of Default has occurred or come into existence until the date specified by the Agent (in writing) as being the date on which it has been demonstrated to its satisfaction (acting reasonably) that such Event of Default or Potential Event of Default is no longer continuing. The Agent shall promptly notify the other parties hereto of any determination that an Event of Default or Potential Event of Default has occurred or exists or, as the case may be, that it has been demonstrated to its reasonable satisfaction that such is no longer continuing. - 38 - 42 6. UTILISATION OF THE REVOLVING FACILITY 6.1 DRAWDOWN CONDITIONS FOR REVOLVING ADVANCES A Revolving Advance will be made by the Banks to a Borrower if: 6.1.1 the Available Term Facility is or will be, at the proposed date for the making of such Revolving Advance, zero; 6.1.2 during the Notice Period the Agent has received a completed Notice of Drawdown from such Borrower; 6.1.3 the proposed date for the making of such Revolving Advance is a Business Day falling one month or more before the Revolving Termination Date; 6.1.4 the proposed date for the making of such Revolving Advance is not less than five Business Days after the date upon which the previous Revolving Advance (if any) was made; 6.1.5 the proposed amount of such Revolving Advance is (a) if less than the Available Revolving Facility an amount equal to or greater than CHF50,000,000 or (b) equal to the amount of the Available Revolving Facility; 6.1.6 there would not, immediately after the making of such Revolving Advance, be more than six Revolving Advances outstanding; 6.1.7 (save in relation to a Rollover Advance) the Principal Borrower provides the Agent with a certificate signed by an Authorised Signatory of the Principal Borrower, confirming (and setting out the calculations enabling such a confirmation to be given) that: (a) in respect of such a proposed Revolving Advance to be made before the consolidated financial statements of the Restricted Group for the Financial Quarter ended on 30 June 2000 have been delivered to the Agent, the ratio of Senior Debt of the Restricted Group to Annualised EBITDA of the Restricted Group will be no greater than 20.00:1 (where Senior Debt is calculated as at the Acquisition Date, immediately following the completion of the Acquisition and adjusted to take any outstanding Advances and the proposed Revolving Advance into account, and Annualised EBITDA is calculated in accordance with paragraph (a) of the definition thereof); (b) in respect of a proposed Revolving Advance to be made after the consolidated financial statements of the Restricted Group for the Financial Quarter ended on 30 June 2000 have been delivered to the Agent, having adjusted the last consolidated financial statements of the Restricted Group delivered to the Agent pursuant to Clause 20.2 (Quarterly Statements) to take the proposed Revolving Advance into account, the ratio of Senior Debt of the Restricted Group to Annualised - 39 - 43 EBITDA of the Restricted Group applicable at the immediately preceding Quarter Date (as specified in sub-clause 21.1.1 of Clause 21 (Financial Condition)) will continue to be satisfied; (c) in respect of a proposed Revolving Advance to be made on or after 30 June 2001, having adjusted the Consolidated Finance Charges of the Restricted Group for the Relevant Period ended on the last Quarter Date to include the interest that would have been payable on the proposed Revolving Advance had it been outstanding throughout such a Relevant Period, the ratio of the Consolidated Finance Charges of the Restricted Group to EBITDA applicable at the immediately preceding Quarter Date (as specified in sub-clause 21.1.2 of Clause 21 (Financial Condition)) will continue to be satisfied; and (d) in respect of such a Revolving Advance to be made on or after 31 March 2003, having made the adjustment to the Consolidated Finance Charges of the Restricted Group referred to in paragraph (c) above for the Relevant Period ended on the last Quarter Date, the ratio of Annualised EBITDA to Consolidated Pro Forma Debt Service applicable at the immediately preceding Quarter Date (as specified in sub-clause 21.1.3 of Clause 21 (Financial Condition)) will continue to be satisfied; 6.1.8 the proposed Term of the Revolving Advance requested is a period of one, two, three or six months or such other period as the Agent (acting on the instructions of all of the Banks) may agree in each case ending on or before the Revolving Termination Date PROVIDED THAT prior to the Syndication Date only periods of one month (or, if less, such duration necessary to ensure that such Term shall end on the Syndication Date) or such other period specified by the Arrangers may be requested; 6.1.9 (save in relation to a Rollover Advance) neither of the events mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause 8.1 (Market Disruption) shall have occurred; and 6.1.10 on and as of the proposed date for the making of such Revolving Advance: (a) (save in relation to a Rollover Advance) no Event of Default or Potential Event of Default is continuing; and (b) the Repeated Representations are true in all material respects. 6.2 EACH BANK'S PARTICIPATION IN REVOLVING ADVANCES Each Bank will participate through its Facility Office in each Revolving Advance made pursuant to this Clause 6 in the proportion borne by its Available Revolving Commitment to the Available Revolving Facility immediately prior to the making of that Revolving Advance. - 40 - 44 6.3 REDUCTION OF AVAILABLE REVOLVING COMMITMENT If a Bank's Revolving Commitment is reduced in accordance with the terms hereof after the Agent has received the Notice of Drawdown for a Revolving Advance and such reduction was not taken into account in the Available Revolving Facility, then the amount of that Revolving Advance shall be reduced accordingly. 7. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES 7.1 PAYMENT OF INTEREST On the Repayment Date relating to each Revolving Advance and, if the Term of such Revolving Advance exceeds six months, on the expiry of each period of six months during such Term, the Borrower to whom such Revolving Advance has been made shall pay accrued interest on that Revolving Advance. 7.2 CALCULATION OF INTEREST The rate of interest applicable to a Revolving Advance from time to time during its Term shall be the rate per annum which is the sum of: 7.2.1 the Margin at such time; 7.2.2 the Mandatory Cost Rate; and 7.2.3 LIBOR. 7.3 MARGIN The Margin for Revolving Advances shall be determined in accordance with Clause 5.3 (Margin Ratchet) to Clause 5.5 (Default Margin). 8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES 8.1 MARKET DISRUPTION If, in relation to any Advance: 8.1.1 LIBOR is to be determined by reference to Reference Banks and at or about 11.00 a.m. on the Quotation Date for the relevant Interest Period or Term none or only one of the Reference Banks supplies a rate for the purpose of determining LIBOR for the relevant Interest Period or Term; or 8.1.2 before the close of business in London on the Quotation Date for such Advance the Agent has been notified by a Bank or each of a group of Banks to whom in aggregate fifty per cent. or more of such Advance is owed (or, in the case of an undrawn Advance, if made, would be owed) that the LIBOR rate does not accurately reflect the cost of funding its participation in such Advance, then, the Agent shall notify the Principal Borrower, the relevant Borrower and the Banks of such event and, notwithstanding anything to the contrary in this Agreement, Clause 8.2 (Substitute Interest Period and Interest Rate) shall apply to such Advance (if it is a Term Advance which is already outstanding or a Rollover Advance). If sub- - 41 - 45 clause 8.1.1 or 8.1.2 applies to a proposed Advance (other than a Rollover Advance), such Advance shall not be made. 8.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE If sub-clause 8.1.1 of Clause 8.1 (Market Disruption) applies to an Advance, the duration of the relevant Interest Period or Term shall be one month or, if less, such that it shall end on the next succeeding Original Term Repayment Date (in the case of an Original Term Advance), the next succeeding Term-Out Repayment Date (in the case of a Term-Out Advance) or the Revolving Termination Date (in the case of a Rollover Advance). If either sub-clause 8.1.1 or 8.1.2 of Clause 8.1 (Market Disruption) applies to an Advance, the rate of interest applicable to each Bank's portion of such Advance during the relevant Interest Period or Term shall (subject to any agreement reached pursuant to Clause 8.3 (Alternative Rate)) be the rate per annum which is the sum of: 8.2.1 the Margin at such time; 8.2.2 the Mandatory Cost Rate; and 8.2.3 the rate per annum notified to the Agent by such Bank before the last day of such Interest Period or Term to be that which expresses as a percentage rate per annum the cost to such Bank of funding from whatever sources it may reasonably select its portion of such Advance during such Interest Period or Term. 8.3 ALTERNATIVE RATE If either of those events mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause 8.1 (Market Disruption) occurs in relation to an Advance, then if the Agent or the Principal Borrower so requires, the Agent and the Principal Borrower shall enter into negotiations with a view to agreeing a substitute basis (i) for determining the rates of interest from time to time applicable to the Advances and/or (ii) upon which the Advances may be maintained (whether in Swiss Francs or some other currency) thereafter and any such substitute basis that is agreed shall take effect in accordance with its terms and be binding on each party hereto, PROVIDED THAT the Agent may not agree any such substitute basis without the prior consent of each Bank (which is not to be unreasonably withheld). 9. NOTIFICATION 9.1 ADVANCES The Agent shall, no later than the Notification Time before the first day of an Interest Period or Term (or, in respect of Original Term Advances to be made on the Acquisition Date, no later than the Acquisition Date) notify each Bank of: 9.1.1 the Facility that is to be utilised and the name of the Borrower; 9.1.2 the proposed amount of the relevant Advance; - 42 - 46 9.1.3 the proposed length of the relevant Interest Period or Term; and 9.1.4 the aggregate principal amount of the relevant Advance allocated to such Bank pursuant to Clause 3.2 (Each Bank's Participation in Original Term Advances), Clause 6.2 (Each Bank's Participation in Revolving Advances) or Clause 11.3 (Each Bank's Participation in Term-Out Advances). 9.2 INTEREST RATE DETERMINATION The Agent shall promptly notify the relevant Borrower and the Banks of each determination of LIBOR, the Mandatory Cost Rate and the Margin. 9.3 CHANGES TO ADVANCES OR INTEREST RATES The Agent shall promptly notify the relevant Borrower and the Banks of any change to (a) the proposed length of an Interest Period or Term or (b) any interest rate occasioned by the operation of Clause 8 (Market Disruption and Alternative Interest Rates). 10. REPAYMENT OF THE ORIGINAL TERM FACILITY 10.1 ORIGINAL TERM LOAN REPAYMENT INSTALMENTS The Principal Borrower shall procure (and each Borrower which has drawn an Original Term Advance shall repay its share of the Original Term Loan in order to ensure) that the Original Term Loan is repaid in instalments on each Original Term Repayment Date set out in the table below. The amount to be repaid shall be equal to the percentage of the Original Term Loan as at the close of business in London on the last day of the Original Term Availability Period as set out in the table below.

ORIGINAL TERM PERCENTAGE OF ORIGINAL ORIGINAL TERM PERCENTAGE OF ORIGINAL REPAYMENT DATE TERM LOAN (%) REPAYMENT DATE TERM LOAN (%) -------------- ---------------------- --------------- ---------------------- 31 March 2004 1.0 30 September 2007 4.5 30 June 2004 1.0 31 December 2007 4.5 30 September 2004 1.0 31 March 2008 5.5 31 December 2004 1.0 30 June 2008 5.5 31 March 2005 1.75 30 September 2008 5.5 30 June 2005 1.75 31 December 2008 5.5 30 September 2005 1.75 31 March 2009 6.25 31 December 2005 1.75 30 June 2009 6.25 31 March 2006 3.75 30 Se