England and Wales | 001-35961 | 98-1112770 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification #) |
Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
Year | Redemption Price | |
2021 | 102.000% | |
2022 | 101.000% | |
2023 | 100.500% | |
2024 and thereafter | 100.000% |
Year | Redemption Price | |
2020 | 102.688% | |
2021 | 101.792% | |
2022 | 100.896% | |
2023 and thereafter | 100.000% |
Exhibit No. | Name | |
4.1 | Indenture dated April 15, 2015, among UPCB Finance IV Limited, The Bank of New York Mellon, London Branch as Trustee, Principal Paying Agent, Transfer Agent and Security agent, The Bank of New York Mellon as New York Paying Agent, New York Transfer Agent and Dollar Notes Registrar and The Bank of New York Mellon (Luxembourg) S.A. as Euro Notes Registrar and Transfer Agent. | |
4.2 | Additional Facility AK Accession Agreement, dated April 15, 2015, among UPC Financing Partnership as Borrower, The Bank of New York Nova Scotia as Facility Agent and Security Agent, UPC Broadband Holding B.V. and UPCB Finance IV Limited as Additional Facility AK Lender, under the UPC Broadband Holding Credit Facility. | |
4.3 | Additional Facility AL Accession Agreement, dated April 15, 2015, among UPC Financing Partnership as Borrower, The Bank of New York Nova Scotia as Facility Agent and Security Agent, UPC Broadband Holding B.V. and UPCB Finance IV Limited as Additional Facility AL Lender, under the UPC Broadband Holding Credit Facility. |
LIBERTY GLOBAL PLC | ||
By: | /s/ RANDY L. LAZZELL | |
Randy L. Lazzell | ||
Vice President |
Section 1.01 | Definitions 1 |
Section 1.02 | Other Definitions. 16 |
Section 1.03 | Incorporation by Reference of Trust Indenture Act 16 |
Section 1.04 | References to UPC Broadband Holding Bank Facility 16 |
Section 1.05 | Rules of Construction 17 |
Section 2.01 | Form and Dating 17 |
Section 2.02 | Execution and Authentication 18 |
Section 2.03 | Registrar and Paying Agent 20 |
Section 2.04 | Holders to Be Treated as Owners; Payments of Interest 21 |
Section 2.05 | Paying Agent to Hold Money 22 |
Section 2.06 | Holder Lists 22 |
Section 2.07 | Transfer and Exchange 22 |
Section 2.08 | Replacement Notes 30 |
Section 2.09 | Outstanding Notes 31 |
Section 2.10 | Treasury Notes 31 |
Section 2.11 | Temporary Notes 31 |
Section 2.12 | Cancellation 31 |
Section 2.13 | Defaulted Interest 32 |
Section 2.14 | CUSIP, ISIN or Common Code Numbers 32 |
Section 2.15 | Deposit of Moneys 32 |
Section 3.01 | Notices to Trustee 32 |
Section 3.02 | Selection of Notes to Be Redeemed or Purchased 33 |
Section 3.03 | Notice of Redemption 33 |
Section 3.04 | Effect of Notice of Redemption 34 |
Section 3.05 | Deposit of Redemption or Purchase Price 34 |
Section 3.06 | Notes Redeemed or Repurchased in Part 35 |
Section 3.07 | Optional Redemption 35 |
Section 3.08 | Special Optional Redemption in connection with a UPC Exchange |
Section 3.09 | Redemption for Changes in Withholding Taxes 38 |
Section 3.10 | Offer to Purchase by Application of Available Disposal Proceeds 39 |
Section 3.11 | Open Market Purchases of UPCB Loans 41 |
Section 4.01 | Payment of Notes 42 |
Section 4.02 | Maintenance of Office or Agency 42 |
Section 4.03 | Information 42 |
Section 4.04 | Compliance Certificate 43 |
Section 4.05 | Taxes 43 |
Section 4.06 | Stay, Extension and Usury Laws 44 |
Section 4.07 | Limitations with Respect to Business Activities of the Issuer 44 |
Section 4.08 | [Reserved] 45 |
Section 4.09 | [Reserved] 45 |
Section 4.10 | Application of Available Disposal Proceeds 45 |
Section 4.11 | [Reserved] 46 |
Section 4.12 | [Reserved] 46 |
Section 4.13 | [Reserved] 46 |
Section 4.14 | Maintenance of the Existence of the Issuer 46 |
Section 4.15 | Redemption Upon a Change of Control 46 |
Section 4.16 | Minimum Period for Consent under Loan Documents 46 |
Section 4.17 | Payments for Consent 47 |
Section 4.18 | Amendments to Loan Documents to be applied equally to all UPCB Lenders 47 |
Section 4.19 | Additional Amounts 47 |
Section 4.20 | Further Instruments and Acts 50 |
Section 4.21 | Maintenance of Listing 50 |
Section 5.01 | The Finco Loans 51 |
Section 5.02 | Limited Recourse Obligations 51 |
Section 6.01 | Events of Default 52 |
Section 6.02 | Acceleration 53 |
Section 6.03 | Other Remedies 53 |
Section 6.04 | Waiver of Past Defaults 54 |
Section 6.05 | Control by Majority 54 |
Section 6.06 | Limitation on Suits 54 |
Section 6.07 | Rights of Holders of Notes to Receive Payment 55 |
Section 6.08 | Exchange of Notes for UPCB Loans 55 |
Section 6.09 | Collection Suit by Trustee 56 |
Section 6.10 | Trustee May File Proofs of Claim 56 |
Section 6.11 | Priorities 57 |
Section 6.12 | Undertaking for Costs 57 |
Section 6.13 | Non Petition 57 |
Section 7.01 | Duties of Trustee 57 |
Section 7.02 | Rights of Trustee 58 |
Section 7.03 | Individual Rights of Trustee 61 |
Section 7.04 | Trustee’s Disclaimer 61 |
Section 7.05 | Notice of Defaults 61 |
Section 7.06 | Reports by Trustee to Holders of the Notes 61 |
Section 7.07 | Compensation and Indemnity 61 |
Section 7.08 | Replacement of Trustee 62 |
Section 7.09 | Successor Trustee by Merger, etc. 63 |
Section 7.10 | Eligibility; Disqualification 63 |
Section 7.11 | Preferential Collection of Claims Against Issuer 64 |
Section 9.01 | To the UPC Broadband Holding Bank Facility or the Finco Accession Agreement 64 |
Section 9.02 | To this Indenture and the Notes Without Consent of Holders of Notes 65 |
Section 9.03 | To this Indenture and the Notes With Consent of Holders of Notes 67 |
Section 9.04 | Revocation and Effect of Consents 69 |
Section 9.05 | Notation on or Exchange of Notes 68 |
Section 9.06 | Trustee to Sign Amendments, etc. 69 |
Section 10.01 | Notes Security Documents 69 |
Section 10.02 | Release of Collateral 70 |
Section 10.03 | Authorization of Actions to Be Taken by the Security Agent 70 |
Section 10.04 | Authorization of Receipt of Funds by the Security Agent Under the Notes Security Documents 70 |
Section 10.05 | Waiver of subrogation 70 |
Section 10.06 | Termination of Security Interest 71 |
Section 10.07 | Security Agent 71 |
Section 10.08 | Liability 71 |
Section 10.09 | Indemnity 71 |
Section 10.10 | Defaults 72 |
Section 10.11 | Communications 72 |
Section 10.12 | Professional Advisers 72 |
Section 10.13 | Own Participation 72 |
Section 10.14 | Resignation 72 |
Section 10.15 | Removal 73 |
Section 10.16 | Enforcement Costs 73 |
Section 10.17 | Further Action 73 |
Section 11.01 | Satisfaction and Discharge 74 |
Section 11.02 | Application of Trust Money 75 |
Section 12.01 | Notices 75 |
Section 12.02 | Communication by Holders of Notes with Other Holders of Notes 77 |
Section 12.03 | Certificate and Opinion as to Conditions Precedent 77 |
Section 12.04 | Statements Required in Certificate or Opinion 77 |
Section 12.05 | Rules by Trustee and Agents 78 |
Section 12.06 | No Personal Liability of Directors, Officers, Employees and Stockholders 78 |
Section 12.07 | Judgment Currency 78 |
Section 12.08 | Governing Law 78 |
Section 12.09 | Submission to Jurisdiction; Appointment of Agent for Service 78 |
Section 12.10 | No Adverse Interpretation of Other Agreements 79 |
Section 12.11 | Successors 79 |
Section 12.12 | Severability 79 |
Section 12.13 | Counterpart Originals 79 |
Section 12.14 | Table of Contents, Headings, etc. 80 |
Section 12.15 | Prescription 80 |
Section 12.16 | USA PATRIOT Act 80 |
(1) | “Comparable German Bund Issue” means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such Redemption Date to January 15, 2021, and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Euro Notes and of a maturity most nearly equal to January 15, 2021; provided, however, that, if the period from such Redemption Date to January 15, 2021, is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer, the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the period from such Redemption Date to January 15, 2021, is less than one year, a fixed maturity of one year shall be used; |
(2) | “Comparable German Bund Price” means, with respect to any Redemption Date, the average of all Reference German Bund Dealer Quotations for such date |
(3) | “Reference German Bund Dealer” means any dealer of German Bundesanleihe securities appointed by the Issuer in good faith; and |
(4) | “Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any Redemption Date, the average as determined by the Issuer in good faith of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt am Main, Germany, time on a day no earlier than the third Business Day preceding the date of the delivery of the redemption notice in respect of such Redemption Date. |
(1) | securities issued or directly and fully guaranteed or insured by the United States Government or a member state of the European Union as of January 1, 2004 (each a “Qualified Country”) or any agency or instrumentality thereof (provided that the full faith and credit of such Qualified Country is pledged in support thereof), having maturities of not more than one year from the date of acquisition; |
(2) | marketable general obligations issued by any political subdivision of any Qualified Country or any public instrumentality thereof maturing within one year from the date of acquisition (provided that the full faith and credit of the Qualified Country is pledged in support thereof) and, at the time of acquisition, having a credit rating of “A2” or better from either Standard & Poor’s Ratings Services or Moody’s Investors Service, Inc.; |
(3) | certificates of deposit, time deposits, eurodollar time deposits, bank deposits or bankers’ acceptances having maturities of not more than one year from the date of acquisition thereof issued by any lender party to any Credit Facility or by any bank or trust company (x) the long-term debt of which is rated at the time of acquisition thereof at least “A-” or the equivalent thereof by Standard & Poor’s Ratings Services, or “A-” or the equivalent thereof by Moody’s Investors Service, Inc. (or if at the time neither is issuing comparable ratings, then a comparable rating of another nationally recognized rating agency); |
(4) | repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (1), (2) and (3) entered into with any bank meeting the qualifications specified in clause (3) above; |
(5) | commercial paper rated at the time of acquisition thereof at least “A-2” or the equivalent thereof by Standard & Poor’s Ratings Services or “P-2” or the |
(6) | interests in any investment company or money market fund which invests 95% or more of its assets in instruments of the type specified in clauses (1) through (5) above. |
(1) | matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise; |
(2) | is convertible or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of UPC Broadband Holding, UPC Financing or a Subsidiary of UPC Broadband Holding); or |
(3) | is redeemable at the option of the holder of the Capital Stock in whole or in part, |
(1) | Liens for taxes, assessments or government charges or levies on the assets of the Issuer if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision that shall be required in conformity with GAAP shall have been made therefor; |
(2) | Liens created for the benefit of (or to secure) the Notes including any Additional Notes (including any Liens granted pursuant to the Notes Security Documents); |
(3) | Liens granted to the Trustee for its compensation and indemnities pursuant to this Indenture; and |
(4) | Liens with respect to bankers’ liens, rights of set-off or similar rights or remedies in respect of cash maintained in bank accounts or certificates of deposit. |
Defined in | |
Term | Section |
“Additional Amounts” | 4.19 |
“Additional Facility Commitments” | 9.01 |
“Asset Sale Offer” | 4.10 |
“Asset Sale Offer Amount” | 3.10 |
“Asset Sale Offer Period” | 3.10 |
“Asset Sale Purchase Date” | 3.10 |
“Authentication Order” | 2.02 |
“Authorized Agent” | 12.09 |
“Change of Control” | 4.15 |
“Commitments” | 9.01 |
“Event of Default” | 6.01 |
“Excess Dollar Early Redemption Proceeds” | 3.07 |
“Excess Euro Early Redemption Proceeds” | 3.07 |
“Exchange Date” | 6.08 |
“Exchange Triggering Event” | 6.08 |
“Issuer Tax Event” | 4.19 |
“Judgment Currency” | 12.07 |
“New Lender” | 6.08 |
“Noteholder Consent” | 9.01 |
“Novation Certificate” | 6.08 |
“Paying Agent” | 2.03 |
“Payor” | 4.19 |
“Principal Paying Agent” | 2.03 |
“Register” | 2.03 |
“Registrar” | 2.03 |
“Regular Record Date” | 2.04 |
“Relevant Tax Jurisdiction” | 4.19 |
“Required Currency” | 12.07 |
“Taxes” | 4.19 |
“Tax Redemption Date” | 3.09 |
“Transfer Agent” | 2.03 |
“UPC Broadband Holding Bank Facility Decision” | 9.01 |
“UPCB Event of Default” | 6.01 |
“UPCB Exchange Loan” | 6.08 |
(1) | a term has the meaning assigned to it; |
(2) | an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; |
(3) | “or” is not exclusive; |
(4) | words in the singular include the plural, and in the plural include the singular; |
(5) | “will” shall be interpreted to express a command; |
(6) | provisions apply to successive events and transactions; and |
(7) | references to sections of or rules under the U.S. Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time. |
(1) | the Redemption Date and the record date; |
(2) | the redemption price; |
(3) | the Common Code, CUSIP and/or ISIN number(s), if any; |
(4) | if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note; |
(5) | the name and address of the relevant Paying Agent; |
(6) | that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price; |
(7) | that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date; |
(8) | the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and |
(9) | that no representation is made as to the correctness or accuracy of the Common Code, CUSIP and/or ISIN number, if any, listed in such notice or printed on the Notes. |
Year | Dollar Notes Percentage |
2020 | 102.688% |
2021 | 101.792% |
2022 | 100.896% |
2023 and thereafter | 100.000% |
Year | Euro Notes Percentage |
2021 | 102.000% |
2022 | 101.000% |
2023 | 100.500% |
2024 and thereafter | 100.000% |
(1) | that the Asset Sale Offer is being made pursuant to this Section 3.10 and Section 4.10(a) and the length of time the Asset Sale Offer will remain open; |
(2) | the Asset Sale Offer Amount, the purchase price and the Asset Sale Purchase Date; |
(3) | that any Note not tendered or accepted for payment will continue to accrue interest; |
(4) | that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Asset Sale Purchase Date; |
(5) | that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of €100,000 and integral multiples of €1,000 in excess thereof, in case of the Euro Notes and $200,000 and in integral multiples of $1,000 in excess thereof, in case of the Dollar Notes; |
(6) | that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book‑entry transfer, to the Issuer, a Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Asset Sale Purchase Date; |
(7) | that Holders will be entitled to withdraw their election if the Issuer, the Depositary, Euroclear, Clearstream or the Paying Agent, as the case may be, receives, not later than the expiration of the Asset Sale Offer Period, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; |
(8) | that, if the aggregate principal amount of Notes surrendered by Holders thereof exceeds the Asset Sale Offer Amount, the Trustee will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes surrendered (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of €100,000 and integral multiples of €1,000 in excess thereof, in case of the Euro Notes and $200,000 and in integral multiples of $1,000 in excess thereof, in case of the Dollar Notes, will be purchased); and |
(9) | that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book‑entry transfer). |
(3) | the Issuer shall not engage in any business activity or undertake any other activity, except any activity: (a) relating to the offering, sale, or issuance of the Notes (including any Additional Notes) and the lending or otherwise advancing of the proceeds thereof to the UPCB Group and any other activities in connection therewith; (b) undertaken with the purpose of, and directly related to, fulfilling any other obligations or enforcing any rights under this Indenture, the Finco Loans and the Finco Accession Agreements (including any additional Finco Loan and any additional Finco Accession Agreement entered into in connection with the issuance of Additional Notes), and any Notes Security Document to which it is a party or any other document relating to the Notes or the Deed of Covenant, the UPC Expenses Agreement or the UPCB Fee Letter; (c) undertaken as investments in the Finco Loans, any additional Finco Loan or cash and Cash Equivalents; or (d) directly related or reasonably incidental to the establishment and/or maintenance of the Issuer’s corporate existence; |
(2) | the Issuer shall not take any action which would cause it to no longer satisfy the requirements of an available exemption from the provisions of the U.S. Investment Company Act of 1940, as amended; |
(3) | the Issuer will not (a) incur any Financial Indebtedness other than as expressly permitted by Section 4.07(1); (b) guarantee any obligations of any other Person; (c) issue any shares (other than shares issued to the Share Trustee on or prior to the date of this Indenture); (d) incur any Liens (other than Permitted Issuer Liens); or (e) deposit additional amounts in its Share Capital Account (other than amounts deposited in connection with the issuance of Additional Notes); |
(4) | for so long as any Notes are outstanding, the Issuer shall not commence or take any action or facilitate a winding-up, liquidation, dissolution or other analogous proceeding; |
(5) | the Issuer shall not amend its constitutive documents in any manner which would adversely affect the rights of Holders of the Notes in any material respect; |
(6) | except as otherwise provided in this Indenture, the Issuer shall take all actions necessary and within its power to prohibit the transfer of the issued shares in the Issuer by the Share Trustee, except to the extent set forth in Article 6; |
(7) | the Issuer shall not merge, consolidate, amalgamate or otherwise combine with or into any Person or sell, transfer, lease or otherwise dispose of any material property or assets to any Person (other than any sale or other disposal of property |
(8) | the Issuer shall use all reasonable efforts to: (a) maintain books and records separate from any other Person or entity; (b) maintain its accounts separate from those of any other Person or entity; (c) not commingle its assets with those of any other Person or entity; (d) conduct its own business in its own name; (e) observe all corporate formalities; (f) maintain an arms’‑length relationship with any Affiliates; (g) maintain separate financial statements; (h) pay its own liabilities out of its own funds (other than those contemplated under the Finco Loans, the Finco Accession Agreements, the UPCB Fee Letter and the UPC Expenses Agreement and any related or similar agreement); (i) use separate stationery; (j) hold itself out as a separate entity; and (k) correct any known misunderstanding regarding its separate identity; |
(9) | the Issuer (a) shall not take any action that would impair any security interests over the Collateral benefiting the Notes in any material respect (other than Permitted Issuer Liens) and (b) shall take all actions (including making all filings and registrations) that may be necessary for the purpose of the creation, perfection, protection or maintenance of any Collateral subject to any Notes Security Document; |
(10) | the Issuer will use all amounts received (other than amounts not corresponding to required payments under the Notes) under either Finco Loan for application towards amounts payable under the relevant series of Notes; and |
(11) | the Issuer will not grant any waiver or agree to any amendment or waive any rights under any of the Transaction Documents, except with respect to the Required Consent Provisions or in compliance with Article 9. |
(1) | the Cayman Islands, The Netherlands or any political subdivision or governmental authority thereof or therein having power to tax; |
(2) | any jurisdiction from or through which payment on the Notes is made, or any political subdivision or governmental authority thereof or therein having the power to tax; or |
(3) | any other jurisdiction in which a Payor is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1), (2) and (3), a “Relevant Tax Jurisdiction”), |
(a) | any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner and the Relevant Tax Jurisdiction imposing such Taxes (other than the mere ownership or holding of such Note or enforcement of rights thereunder or under this Indenture or the receipt of payments in respect thereof); |
(b) | any Taxes that would not have been so imposed but for the failure of the Holder or beneficial owner of such Note to make a declaration of non-residence or any other claim or filing for exemption to which it is entitled, provided that (x) such declaration of non-residence or other claim or filing for exemption is required by the applicable law of the Relevant Tax Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Tax Jurisdiction, the relevant Holder at that time has been notified (in accordance with the procedures set forth in this Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made; |
(c) | any Note presented for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have |
(d) | any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on the Notes; |
(e) | any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; |
(f) | any Taxes withheld or deducted imposed on a payment required to be withheld or deducted pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such directive; |
(g) | any Taxes which could have been avoided by the presentation (where presentation is required) of the relevant Note to another Paying Agent in a member state of the European Union; |
(h) | all United States backup withholding taxes; |
(i) | any withholding or deduction imposed pursuant to (a) Sections 1471 through 1474 of the United States Internal Revenue Code of 1986 (as amended), as of the date of this Indenture (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, (b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of (a) above, or (c) any agreement pursuant to the implementation of (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction; and |
(j) | any combination of items (a) through (i) above. |
(1) | default in any payment of interest or Additional Amounts on any Note when due, which has continued for 30 days; |
(2) | default for one Business Day in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes; |
(3) | failure by the Issuer to comply with its obligations under clauses (4), (5), (7) or (11) of Section 4.07, Section 4.14 and Section 4.16; |
(4) | failure by the Issuer for 60 days after notice to the Issuer by the Trustee or the Holders of at least 25% in aggregate principal amount of Notes then outstanding to comply with any of the agreements in this Indenture (other than those described in Section 6.01(1), Section 6.01(2) and Section 6.01(3)) or the Notes; |
(5) | breach by the Issuer or the Share Trustee of any material representation or warranty in any Notes Security Document to which it is a party, the repudiation by the Issuer or the Share Trustee of any of its obligations under any Notes Security Document to which it is a party or the unenforceability for any reason against the Issuer or the Share Trustee of any Notes Security Document to which it is a party; |
(A) | there shall have been the entry by a court of competent jurisdiction of (a) a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Bankruptcy Law or (b) a decree or order adjudging the Issuer bankrupt or insolvent, or seeking moratorium, reorganization, arrangement, adjustment or composition of or in respect of the Issuer under any applicable Bankruptcy Law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or of any substantial part of its respective properties, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief shall continue to be in effect, or any such other decree or order shall be unstayed and in effect, for a period of 60 consecutive days; |
(B) | the Issuer commences a voluntary case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent, or files for or has been granted a moratorium on payment of its debts or files for bankruptcy or is declared bankrupt; |
(C) | the Issuer consents to the entry of a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency or proceeding against it; |
(D) | the Issuer files a petition or answer or consent seeking reorganization or relief under any applicable Bankruptcy Law (other than a solvent reorganization for purposes of transferring assets among the Issuer), |
(E) | the Issuer (i) consents to the filing of such petition or the appointment of, or taking possession by, an administrator, custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Issuer or of any substantial part of its properties, (ii) makes an assignment for the benefit of creditors or (iii) admits in writing its inability to pay its debts generally as they become due, |
(F) | the whole or any substantial part of the assets of the Issuer has been placed under administration, or |
(G) | the Issuer takes any corporate action in furtherance or any such actions in sub-clauses (B) through (F) of this Section 6.01(6); or |
(7) | (a) failure by any party thereto for 60 days to comply with any of the agreements in the Deed of Covenant, the UPC Expenses Agreement or the UPCB Fee Letter in any material respect or (b) the repudiation by any party thereto of any of its obligations under any of the Deed of Covenant, the UPC Expenses Agreement or the UPCB Fee Letter, the unenforceability for any reason against any party thereto of the Deed of Covenant, the UPC Expenses Agreement or the UPCB Fee Letter or any breach by any party thereto of any material representation or warranty in the Deed of Covenant, the UPC Expenses Agreement or the UPCB Fee Letter; or |
(8) | (a) the occurrence of a UPCB Event of Default that is continuing or (b) any breach by UPC Broadband Holding or UPC Financing of any material representation or warranty or any material agreement in the Finco Accession Agreement AK or the Finco Accession Agreement AL. |
(1) | such Holder has previously given the Trustee notice that an Event of Default is continuing; |
(2) | Holders of at least 25% in aggregate principal amount of the then outstanding Euro Notes and/or Dollar Notes, as applicable, have requested the Trustee and/or the Security Agent to pursue the remedy; |
(3) | such Holders have offered the Trustee and/or the Security Agent reasonable security or indemnity satisfactory to it against any loss, liability or expense; |
(4) | the Trustee and/or the Security Agent has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and |
(5) | the Holders of a majority in aggregate principal amount of the then outstanding Euro Notes and/or Dollar Notes, as applicable, have not given the Trustee and/or the Security Agent a direction that in the opinion of the Trustee is inconsistent with such request within such 60‑day period. |
(1) | the date specified for exchange (the “Exchange Date”) shall be a date to be agreed between the Issuer and the exchanging Holder of Notes, provided that the Issuer’s consent to any Exchange Date requested by such exchanging Holder will not be unreasonably withheld; |
(2) | on or prior to the Exchange Date, Notes to be exchanged will be delivered to the relevant Paying Agent or Registrar for cancellation; |
(3) | the Issuer or the Trustee and/or Security Agent promptly will deliver to the UPCB Facility Agent an executed “Novation Certificate” (as defined in the UPC Broadband Holding Bank Facility) designating such Holder (or any Person designated by such Holder) as the “New Lender” (as defined in the UPC Broadband Holding Bank Facility) in respect of such UPCB Exchange Loan; |
(4) | the UPCB Exchange Loan will be denominated in the same currency as the Notes exchanged; |
(5) | in consideration of the exchange of such Notes for the UPCB Exchange Loan, each of the Issuer, the Holder of Notes and the Trustee and/or Security Agent hereby agrees to assign any right that such person may be entitled to pursuant to the terms of the UPC Broadband Holding Bank Facility to Pre-Transfer Accrued Interest (as defined in the UPC Broadband Holding Bank Facility) on such Finco Loan transferred, and the Issuer will direct the UPCB Facility Agent to pay such Pre-Transfer Accrued Interest to such holder on the next date on which interest is payable under such Finco Loan; and |
(6) | the aggregate principal amount of Notes being exchanged on any Exchange Date by a Holder is at least €100,000 (in the case of Euro Notes) or $200,000 (in the case of Dollar Notes). |
(OLC + BC + OBC) OL | = Threshold Amount |
(1) | reduce the stated rate of or extend the stated time for payment of interest under the relevant Finco Loan; |
(2) | reduce any amounts payable in respect of any prepayment of the relevant Finco Loan; |
(3) | reduce the principal of or extend the Stated Maturity of the relevant Finco Loan; |
(4) | make the relevant Finco Loan payable in currency other than that stated in the relevant Finco Accession Agreement; or |
(5) | modify the payment terms of the relevant Finco Accession Agreement. |
(1) | cure any ambiguity, defect or inconsistency; |
(2) | provide for uncertificated Notes in addition to or in place of certificated Notes (provided, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the U.S. Internal Revenue Code of 1986 (as amended)); |
(3) | make any change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under this Indenture of any such Holder in any material respect, to the extent such change would not violate the provisions of this Indenture; |
(4) | conform the text of this Indenture, the Notes or any Notes Security Document to any provision of the “Description of the Notes” section of each Offering Memoranda to the extent that such provision in that Description of the Notes was intended to be a verbatim recitation of a provision of this Indenture, the Notes or any Notes Security Document; |
(5) | provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the Issue Date (including with respect to Collateral); |
(6) | the extent necessary to allow the Issuer to participate on the same terms as other UPCB Lenders in an offer to purchase or otherwise acquire UPCB Loans by any member of the UPCH Group made in compliance with the requirements set out under Section 3.11; |
(7) | release any Lien on the Collateral in accordance with the terms of this Indenture and the Notes Security Documents; |
(8) | evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee pursuant to the requirements of this Indenture; or |
(9) | make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation to facilitate the issuance and administration of the Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such amendment does not materially and adversely affect the rights of holders to transfer Notes. |
(1) | reduce the principal amount of the Notes whose Holders must consent to an amendment, waiver or other determination; |
(2) | reduce the stated rate of or extend the stated time for payment of interest or Additional Amounts on any Note; |
(3) | reduce the principal of or extend the Stated Maturity of any Note or alter the provisions with respect to the redemption of the Notes; |
(4) | make any Note payable in currency other than that stated in the Note; |
(5) | impair the right of any holder to receive payment of, premium, if any, principal of or interest or Additional Amounts, if any, on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes; |
(6) | make any change to this Section 9.03; |
(7) | impair the right of any Holder of the Notes to exchange its Notes for UPCB Exchange Loans in accordance with Section 6.08; or |
(8) | release any Lien on the Collateral except in accordance with the terms of this Indenture and the Notes Security Documents. |
(1) | enforce any of the terms of the Notes Security Documents; and |
(2) | collect and receive any and all amounts payable in respect of the obligations of the Issuer hereunder. |
(1) | either: |
(A) | all Notes (or all Euro Notes or Dollar Notes, as applicable) that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Issuer, have been delivered to the relevant Paying Agent or Registrar for cancellation; or |
(B) | (i) all Notes (or all Euro Notes or Dollar Notes, as applicable) that have not been delivered to the relevant Paying Agent or Registrar for cancellation (x) have become due and payable by reason of the mailing or delivery of a notice of redemption or otherwise or (y) will become due and payable within one year and (ii) the Issuer or a third party acting on behalf of the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, with respect to the Euro Notes, cash, Cash Equivalents, European Government Obligations or a combination thereof, in each case, denominated in euro and, with respect to the Dollar Notes, cash, Cash Equivalents, U.S. Government Obligations or a combination thereof, in each case, denominated in U.S. dollars, in amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to a Paying Agent or Registrar for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption; |
(2) | the Issuer or a third party acting on behalf of the Issuer has paid or caused to be paid all other amounts payable by it under this Indenture with respect to the Notes; and |
(3) | the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes (or all |
(1) | an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.04) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and |
(2) | an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.04) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied. |
(1) | a statement that the Person making such certificate or opinion has read such covenant or condition; |
(2) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
(3) | a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and |
(4) | a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied. |
UPCB FINANCE IV LIMITED as Issuer |
By: Name: Title: |
THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Trustee, Transfer Agent, Principal Paying Agent and Security Agent |
By: Name: Title: |
THE BANK OF NEW YORK MELLON, as New York Paying Agent, New York Transfer Agent and Dollar Notes Registrar |
By: Name: Title: |
THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Euro Notes Registrar and Transfer Agent |
By: Name: Title: |
(a) | This Note is subject to redemption, and may be the subject of an Asset Sale Offer, as further described in the Indenture. There is no sinking fund applicable to this Note. |
(b) | If the Issuer deposits with the Trustee [cash, Cash Equivalents or U.S. Government Obligations or a combination thereof, in each case, denominated in U.S. dollars, in amounts]/[cash, Cash Equivalents or European Government Obligations or a combination thereof, in each case, denominated in euros, in amounts] sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes to redemption or maturity, the Issuer may in certain circumstances be discharged from the Indenture and the Notes or may be discharged from certain of their obligations under certain provisions of the Indenture. |
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
Date of Exchange | Amount of decrease in Principal Amount of this Global Note | Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease (or increase) | Signature of authorized officer of Trustee |
(a) | This Note is subject to redemption, and may be the subject of an Asset Sale Offer, as further described in the Indenture. There is no sinking fund applicable to this Note. |
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
To: | The Bank of Nova Scotia as Facility Agent (the Facility Agent) and The Bank of Nova Scotia as Security Agent (the Security Agent) |
From: | UPCB Finance IV Limited (the Additional Facility AK Lender) |
Date: | April 15, 2015 |
1. | In this Agreement: |
2. | Unless otherwise defined in this Agreement, terms defined in the Credit Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the Credit Agreement. The principles of construction set out in Clause 1.2 (Construction) of the Credit Agreement apply to this Agreement as though they were set out in full in this Agreement. |
3. | We refer to Clause 2.2 (Additional Facilities) of the Credit Agreement. |
4. | This Agreement will take effect on the date on which the Facility Agent notifies UPC Broadband and the Additional Facility AK Lender that it has received the documents and evidence set out |
5. | The Additional Facility AK Lender agrees: |
(a) | to become a party to and to be bound by the terms of the Credit Agreement as a Lender in accordance with Clause 2.2 (Additional Facilities) of the Credit Agreement; and |
(b) | to become a party to the Security Deed as Lender and to observe, perform and be bound by the terms and provisions of the Security Deed in the capacity of Lender in accordance with Clause 9.3 (Transfers by Lenders) of the Security Deed. |
6. | The Additional Facility Commitment in relation to the Additional Facility AK Lender (for the purpose of the definition of Additional Facility Commitment in Clause 1.1 (Definitions) of the Credit Agreement) is its Facility AK Commitment. |
7. | The Borrower in relation to Facility AK is UPC Financing. |
8. | (a) Provided that any upsizing of Facility AK permitted under this Clause 8 will not breach any term of the Credit Agreement, Facility AK may be upsized by any amount, by the signing of one or more further Additional Facility AK Accession Agreements, that specify (along with the other terms specified therein) UPC Financing as the sole Borrower and which specify Additional Facility AK Commitments denominated in euro, to be drawn in euro, with the same Final Maturity Date and Margin as specified in this Additional Facility AK Accession Agreement. |
(b) | For the purposes of this Clause 8 (unless otherwise specified), references to Facility AK Advances shall include Advances made under any such further Additional Facility AK Accession Agreement. |
(c) | Where any Facility AK Advance has not already been consolidated with any other Facility AK Advance, on the last day of any Interest Period for such Facility AK Advance, that Facility AK Advance will be consolidated with any other Facility AK Advance which has an Interest Period ending on the same day as that Facility AK Advance, and all such Facility AK Advances will then be treated as one Advance. |
9. | Facility AK may be drawn by one Advance on the date of this Agreement and such date will constitute the Availability Period for Facility AK. No more than one Request may be made in respect of Facility AK under the Credit Agreement and such Request may only be in a principal amount of the Additional Facility Commitment in relation to Facility AK as set out in Clause 6 above. |
10. | The Facility AK Advance will be used for general corporate purposes and working capital purposes, including the repayment or prepayment of existing indebtedness. |
11. | The Final Maturity Date in respect of Facility AK is 15 January, 2027. Any outstanding Advance under Facility AK shall be repaid in full on the Final Maturity Date. |
12. | The interest rate for Facility AK will be a fixed rate of 4.000 per cent. per annum. This will be calculated in accordance with Clause 8.1 (Interest rate) of the Credit Agreement as being the sum of EURIBOR, the applicable Margin and the Mandatory Costs (if applicable), where, in order to achieve the fixed rate referred to above, the applicable Margin will be, with respect to any Interest Period: |
(a) | 4.000 per cent. per annum, calculated on the basis of a 360-day year comprised of twelve 30-day months; |
(b) | the sum of EURIBOR plus the Mandatory Costs (if applicable) for such Interest Period. |
13. | Pursuant to Clause 8.2 (Selection of Interest Periods) of the Credit Agreement, the Borrower hereby notifies the Facility Agent that while the Facility AK Advance is outstanding it selects six months for all Interest Periods in relation to that Advance. |
14. | Upon the delivery by the Facility Agent of a notice of cancellation of Facility AK pursuant to Clause 7.4(a)(v)(B) (Change of Control) of the Credit Agreement following the occurrence of a Change of Control (as defined under Clause 7.4 (Change of Control) of the Credit Agreement), UPC Broadband shall make a payment to the Facility Agent (for the account of the Additional Facility AK Lender) in an amount equal to 1 per cent. of the principal amount of the outstanding Facility AK Advance. Such payment shall be due and payable by UPC Broadband to the Facility Agent (for the account of the Additional Facility AK Lender) on the actual date of such mandatory prepayment. |
15. | Subject to Clause 18 of this Agreement, at any time prior to 15 January, 2021, upon the occurrence of any voluntary prepayment of the Facility AK Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement in an amount not to exceed 10% of the original principal amount of the Facility AK Advance during each twelve-month period commencing on the date of this Agreement, UPC Broadband shall make a payment to the Facility Agent (for the account of the Additional Facility AK Lender) in an amount (the Prepayment Premium) equal to 3.000% of the principal amount of the Facility AK Advance being prepaid, plus accrued and unpaid interest then due on the amount of the Facility AK Advance prepaid to the due date of prepayment. Such payment shall be due and payable by UPC Broadband to the Facility Agent (for the account of the Additional Facility AK Lender) on the actual date of such prepayment. Prior to 15 January, 2021, to the extent that during any twelve-month period commencing on the date of this Agreement, the principal amount of the Facility AK Advance prepaid in any one or more voluntary prepayments is greater than an amount equal to 10% of the original principal amount of the Facility AK Advance (any such amount, the Excess Early Redemption Proceeds), UPC Broadband will apply the Excess Early Redemption Proceeds to a voluntary prepayment of the Facility AK Advance as described in Clause 16 below. |
16. (a) | Subject to Clause 18 of this Agreement, at any time prior to 15 January, 2021, upon the occurrence of a voluntary prepayment of all or any part of the outstanding Facility AK Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement with any Excess Early Redemption Proceeds, UPC Broadband shall make a payment to the Facility Agent (for the account of the Additional Facility AK Lender) in an amount equal to the Make-Whole Amount (as defined below) (calculated as of a date no more than three Business Days prior to the date of the relevant Cancellation Notice) as of the due date of such prepayment. Such payment shall be due and payable by UPC Broadband to the Facility Agent (for the account of the Additional Facility AK Lender) on the actual date of such prepayment. |
(i) | the present value at such prepayment date of (i) the total amount that would be payable to the Facility Agent (for the account of the Additional Facility AK Lender) if all or such portion of the outstanding Facility AK Advance were prepaid pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement on 15 January, 2021 (including the outstanding principal amount of such Advance and the Additional Amount (as defined below) required under this Clause 16, but excluding accrued interest and any other amounts payable under the Credit Agreement in connection with such prepayment) plus (ii) all required remaining scheduled interest payments due in respect of all or such portion of the outstanding Facility AK Advance through 15 January, 2021 (excluding accrued but unpaid interest to the prepayment date), computed using a discount rate equal to the Bund Rate (as defined below) as of such prepayment date plus 50 basis points; over |
(ii) | the principal amount of the outstanding Facility AK Advance being prepaid. |
(1) | “Comparable German Bund Issue” means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such relevant date to 15 January, 2021, and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to 15 January, 2021; provided, however, that, if the period from such relevant date to 15 January, 2021, is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer, the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the period from such relevant date to 15 January, 2021, is less than one year, a fixed maturity of one year shall be used; |
(2) | “Comparable German Bund Price” means, with respect to any relevant date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if |
(3) | “Reference German Bund Dealer” means any dealer of German Bundesanleihe securities appointed by the Issuer in good faith; and |
(4) | “Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any relevant date, the average as determined by the Issuer of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day in Frankfurt preceding the relevant Cancellation Notice. |
(b) | Subject to Clause 18 of this Agreement, on or after 15 January, 2021, upon the occurrence of a voluntary prepayment of all or any part of the outstanding Facility AK Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement, UPC Broadband shall pay to the Facility Agent (for the account of the Additional Facility AK Lender) an amount (the Additional Amount) equal to the relevant percentage set out in the table below of the principal amount of the Facility AK Advance being prepaid on the due date of such prepayment, if prepaid during the twelve month period beginning on 15 January of the years indicated below: |
Year | Relevant Percentage |
2021 | 2.000% |
2022 | 1.000% |
2023 | 0.500% |
2024 and thereafter | 0.000% |
17. | Subject to Clause 18 of this Agreement, at any time prior to 15 January, 2018, upon the occurrence of any voluntary prepayment of the Facility AK Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement with the Net Cash Proceeds of one or more Equity Offerings (the Equity Offering Early Redemption Proceeds) in an amount not to exceed 40% of the original principal amount of the Facility AK Advance, UPC Broadband shall make a payment to the Facility Agent (for the account of the Additional Facility AK Lender) in an amount (the Equity Claw Prepayment Premium) equal to 4.000% of the principal amount of the Facility AK Advance being prepaid, plus accrued and unpaid interest then due on the amount of the Facility AK Advance prepaid to the due date of prepayment. Such payment shall be due and payable by UPC Broadband to the Facility Agent (for the account of the Additional Facility AK Lender) on the actual date of such prepayment. |
(1) | matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise; |
(2) | is convertible or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of UPC Broadband, UPC Financing or a Subsidiary of UPC Broadband); or |
(3) | is redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of the date (a) of the stated maturity of Facility AK or (b) on which there are no amounts outstanding under Facility AK, provided that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require UPC Broadband to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (each defined in a substantially identical manner to the corresponding definitions in the Credit Agreement) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that UPC Broadband may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by UPC Broadband with any provisions of the Credit Agreement. |
18. | Notwithstanding Clauses 15, 16 and 17 above, no Prepayment Premium, Make-Whole Amount or Additional Amount shall be payable in connection with a voluntary prepayment of the whole of the outstanding Facility AK Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary |
19. | The Additional Facility AK Lender acknowledges that the Borrower may discharge all or part of the Facility AK Advance pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement in connection with the UPC Exchange Transaction by way of one or a combination of (1) a cash prepayment, (2) an issue of new notes or (3) the purchase of the existing Notes (in the case of (2) and (3), in accordance with the mechanisms, and on the terms, agreed between the Borrower and the Additional Facility AK Lender at the relevant time and provided that the amount and date of such discharge is notified to the Facility Agent in writing by the Borrower and the Additional Facility AK Lender on or before the date of such discharge). The parties to this Agreement acknowledge that this Agreement may require amendment (in accordance with the relevant provisions of the Credit Agreement) to facilitate the discharge of all or part of the Facility AK Advance in connection with the UPC Exchange Transaction and agree to discuss and negotiate any such amendments in good faith at the relevant time. |
20. | For the purposes of any amendment or waiver, consent or other modification (including with respect to any existing Default or Event of Default) that may be sought by UPC Broadband and UPC Financing under the Credit Agreement on or after the date of this Agreement, the Additional Facility AK Lender hereby consents to: |
(a) | any and all of the items set out in Schedule 3 (Amendments, waivers, consents and other modifications) of this Agreement; and |
(b) | any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made either to implement the changes envisaged in Schedule 3 (Amendments, waivers, consents and other modifications) of this Agreement or to conform any Finance Document to Schedule 3 (Amendments, waivers, consents and other modifications) of this Agreement; and/or |
(c) | any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made to conform any Finance Document to any Liberty Global Reference Agreement (provided that any amendment, waiver, consent or modification to conform the Credit Agreement or any other Finance Document to the Liberty Global Reference Agreement referred to at paragraph (iv) of that definition, shall be limited to those that are mechanical in nature unless specifically referenced in Schedule 3 (Amendments, waivers, consents and other modifications) of this Agreement), |
21. | The Additional Facility AK Lender hereby acknowledges and agrees that the Facility Agent may, but shall not be required to, send to the Additional Facility AK Lender any further formal amendment request in connection with all, or any of the proposed amendments set out under Clause 20 above and the Facility Agent shall be authorised to consent on behalf of the Additional Facility AK Lender, as a Lender under one or more Additional Facilities, to any such proposed amendments set out under Clause 20 above, and such consent shall be taken into account in |
22. | The Additional Facility AK Lender hereby waives receipt of any fee in connection with the foregoing consent, notwithstanding that other consenting Lenders under the Credit Facility may be paid a fee in consideration of such Lenders’ consent to any or all of the foregoing amendments, waivers or other modifications. |
23. | In the event that the amendments to the Credit Agreement referred to at paragraph 78 (Benefit of Maintenance Covenant) of Schedule 3 (Amendments, waivers, consents and other modifications) become effective in accordance with clauses 20 and 21 above, on and from the Amendment Effective Date the maintenance covenants at Clause 17.2 (Financial ratios) of the Credit Agreement shall not be for the benefit of the Additional Facility AK Lender and the Additional Facility AK Lender acknowledges and agrees that it shall not form part of the “Composite Maintenance Covenant Instructing Group” in respect of its Facility AK Commitment. |
24. | In the event that the Additional Facility AK Lender is eligible or required to vote (or otherwise consent) with respect to any matter (other than the matters specified in Clause 20 above) arising from time to time under the Credit Agreement or this Agreement the Facility Agent will apply the votes of the Additional Facility AK Lender in accordance with a written direction to be provided by the Additional Facility AK Lender or the Trustee (on behalf of the Additional Facility AK Lender). The Additional Facility AK Lender agrees that it will give any such direction in accordance with the provisions of Section 9.01 of the Indenture. For the avoidance of doubt, the Facility Agent may rely on any such directions received and shall have no duty to enquire or monitor as to whether such direction complies with Section 9.01 of the Indenture. |
25. | Each of UPC Broadband and UPC Financing confirms, on behalf of themselves and each other Obligor, that the representations and warranties set out in Clause 15 (Representations and Warranties) of the Credit Agreement (with the exception of Clauses 15.6(a) (Consents), 15.10 (Financial condition), 15.12 (Security Interests), 15.13(b) (Litigation and insolvency proceedings), 15.14 (Business Plan), 15.15 (Tax liabilities), 15.16 (Ownership of assets), 15.18 (Works Council), 15.19 (Borrower Group Structure), 15.20 (ERISA), 15.24 (UPC Financing) and 15.25 (Dutch Banking Act)) are true and correct as if made at the Effective Date with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement. |
26. | UPC Broadband further represents and warrants on the Effective Date that the execution and delivery by it of this Agreement and the performance of the transactions contemplated by this Agreement will not violate any agreement or instrument to which UPC Holding is a party or binding upon UPC Holding or any member of the Borrower Group or any assets of UPC Holding or any member of the Borrower Group’s assets, where such violation would or is reasonably likely to have a Material Adverse Effect. |
27. | The Additional Facility AK Lender confirms to each Finance Party that: |
(a) | it has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Credit Agreement and has not relied on any information provided to it by a Finance Party in connection with any Finance Document; and |
(b) | it will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Credit Agreement or any Additional Facility Commitment is in force. |
28. | The Additional Facility AK Lender agrees to waive the notice period in respect of delivery of drawdown requests under Clause 5.1 (Delivery of Request) of the Credit Agreement in respect of Facility AK. The Additional Facility AK Lender, the Borrower and the Facility Agent acknowledge and agree that (a) the Facility AK Advance shall be made by the Additional Facility AK Lender directly to the Borrower to an account notified by the Borrower to the Additional Facility AK Lender, rather than through the Facility Agent, and (b) in respect of any other payments of principal, interest or other amounts due under Facility AK, (i) the Borrower shall make payments payable by it to the Additional Facility AK Lender directly to the Additional Facility AK Lender (or to such account as the Additional Facility AK Lender may specify), and (ii) the Additional Facility AK Lender shall make payments payable by it to the Borrower directly to the Borrower (or to such account as the Borrower may specify). The Additional Facility AK Lender agrees that it shall promptly notify the Facility Agent if the Borrower fails to make any payment under subclause (b)(i) of this Clause 28 when due, and the Borrower agrees that it shall promptly notify the Facility Agent if the Additional Facility AK Lender fails to make any payment under subclause (b)(ii) of this Clause 28 when due. |
29. | UPC Broadband agrees that it will not request or require the transfer of all of the rights and obligations of the Additional Facility AK Lender pursuant to any provision of the Credit Agreement following the effectiveness of any amendment or amendment and restatement of the Credit Agreement in accordance with Clauses 20 and 21 above. |
30. | The Facility Office and address for notices of the Additional Facility AK Lender for the purposes of Clause 32.2 (Addresses for notices) of the Credit Agreement will be that notified by the Additional Facility AK Lender to the Facility Agent. |
31. | The Facility Agent may provide copies of the Indenture, or disclose its contents, to any Finance Party upon request by that Finance Party. |
32. | This Agreement and any non contractual obligations arising out of or in connection with it are governed by English law. |
33. | This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement. In relation to each counterpart, upon confirmation by or on behalf of the signatory that the signatory authorises the attachment of such counterpart signature page to the final text of this Agreement, such counterpart signature page shall take effect together with such final text as a complete authoritative counterpart. |
34. | For purposes of any assignment, transfer or novation of rights and/or obligations (in whole or in part) by a Lender in respect of Facility AK under Clause 26.2 (Transfers by Lenders) of the Credit Agreement, UPC Broadband hereby consents to any assignment, transfer or novation made by the Additional Facility AK Lender (including any subsequent Lender under Facility AK) following an Event of Default (as defined in the Indenture), provided that any such assignment, transfer or novation in part shall be in a minimum amount of €100,000. The Additional Facility AK Lender may only deliver to the Facility Agent a completed assignment or transfer document or Novation Certificate (as applicable) if at that time it confirms to the |
Additional Facility AK Lender | Facility AK Commitment | ||
UPCB Finance IV Limited | €600,000,000 | ||
Total | €600,000,000 |
1. | Constitutional Documents |
(a) | A copy of the constitutional documents of each Obligor (other than UPC Financing) and the partnership agreement of UPC Financing or, if the Facility Agent already has a copy, a certificate of an authorised signatory of the relevant Obligor confirming that the copy in the Facility Agent’s possession is still correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
(b) | An extract of the registration of each Obligor established in the Netherlands in the trade register of the Dutch Chamber of Commerce. |
2. | Authorisations |
(a) | A copy of a resolution of the board of managing and, to the extent applicable, board of supervisory directors (or equivalent) and, to the extent that a shareholders’ resolution is required, a copy of the shareholders’ resolution of each Obligor: |
(i) | approving the terms of and the transactions contemplated by this Agreement and (in the case of UPC Broadband and UPC Financing) resolving that it execute the same (and, in the case of the Guarantors and the Charging Entities (as defined in the Security Deed) resolving that it execute the confirmation described at paragraph 4(a) below; and |
(ii) | (in the case of UPC Broadband and UPC Financing) authorising the issuance of a power of attorney to a specified person or persons to execute this Agreement on its behalf and (in the case of the Guarantors and the Charging Entities (as defined in the Security Deed)) authorising the issuance of a power of attorney to a specified person or persons to execute the confirmation described in paragraph 4(a) below. |
(b) | A specimen of the signature of each person authorised pursuant to its constitutional documents or to the power of attorney referred to in paragraph (a) above to sign this Agreement or the confirmation described in paragraph 4(a) below (as appropriate). |
(c) | A certificate of an authorised signatory of UPC Broadband, each Guarantor and each Charging Entity certifying that each copy document specified in this Schedule and supplied by UPC Broadband, each Guarantor and each Charging Entity is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
(d) | A copy of any other authorisation or other document, opinion or assurance which the Facility Agent has notified UPC Broadband is necessary in connection with the entry into and performance of, and the transactions contemplated by, this Agreement or for the validity and enforceability of this Agreement. |
3. | Legal opinions |
(a) | A legal opinion of Allen & Overy LLP, English legal advisers to the Facility Agent, addressed to the Finance Parties. |
(b) | A legal opinion of Allen & Overy LLP, Dutch legal advisers to the Facility Agent, addressed to the Finance Parties. |
(c) | A legal opinion of Allen & Overy LLP, New York legal advisers to the Facility Agent, addressed to the Finance Parties. |
4. | Other documents |
(a) | Confirmation (in writing) from (i) each of the Guarantors that its obligations under Clause 14 (Guarantee) of the Credit Agreement and (ii) each of the Charging Entities (as defined in the Security Deed) that the Security Interests granted to the Beneficiaries pursuant to the Security Documents and its obligations under the Finance Documents, shall continue unaffected and that such obligations extend to the Total Commitments as increased by the addition of Facility AK and that such obligations shall be owed to each Finance Party including the Additional Facility AK Lender. |
1. | Business: amend the definition of Business to include the provision, creation, distribution and broadcasting of content and any business or provision of services substantially the same or similar to that of any member of the Wider Group on the amendment and restatement date as set out in recent Liberty precedent. |
2. | Cash and Cash Equivalent Investments: amend the definition of Cash and the definition of Cash Equivalent Investments to bring each substantially in line with and/or by reference to clauses and language used in recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market. |
3. | Acceptable Bank: amend the definition of Acceptable Bank such that an acceptable bank has a rating of “BBB+” and “Baa1” respectively. |
4. | Optional Currencies: amend the Credit Agreement to provide that any revolving credit facility commitments may also be utilised in currencies other than euro on the basis set out in recent Liberty precedent which contain a revolving credit facility. |
5. | Revolving Facilities: amend the Credit Agreement to include mechanical provisions in relation to revolving credit facilities on the basis set out in recent Liberty precedent which contain revolving credit facilities for the purposes of facilitating future Additional Facilities that are revolving credit facilities. |
6. | Screen Rate: amend the definition of Screen Rate to provide for the replacement of the British Bankers’ Association by the ICE Benchmark Administration as the administrator of LIBOR and the replacement of the Banking Federation of the European Union by the European Money Markets Institute as the administrator of EURIBOR together with other amendments to the definition of Screen Rate by reference to clauses and language used in recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market. |
7. | Financial Indebtedness: amend the definition of Financial Indebtedness as follows: |
(a) | delete paragraph (e) in relation to deferred payments for assets acquired or services supplied; |
(b) | by excluding the following items from the definition: |
(i) | cash-collateralised indebtedness; |
(ii) | indebtedness in the nature of equity (other than redeemable shares); |
(iii) | any deposits or prepayments received by any member of the Borrower Group from a customer or subscriber for its service; |
(iv) | obligations under finance leases and hire purchase contracts in accordance with recent Liberty precedent; and otherwise exclude obligations in respect of finance leases or capital leases (including by deleting limb (f) of the definition of Financial Indebtedness); |
(v) | any indebtedness in respect of any transactions relating to transfers of receivables (and related assets) to asset securitisation Subsidiaries or by an asset securitisation Subsidiary to any other person, or the grant of security in respect of such receivables or related assets, in connection with any asset securitisation programmes or receivables factoring transactions; |
(vi) | any parallel debt obligations to the extent such obligations mirror other Financial Indebtedness; |
(vii) | any pension obligations; |
(viii) | any obligations to make payments in relation to earn outs; and |
(ix) | any payments for assets acquired or services supplied deferred in accordance with the terms pursuant to which the relevant assets were or are to be acquired or services were or are to be supplied. |
8. | Majority Lenders: amend Clause 1.1 of the Credit Agreement to reduce the fractions specified in the definitions of Majority Lenders, from 66⅔ per cent. or more (for any or all purposes under the Credit Agreement or any other Finance Document (including for the purposes of any Additional Facility)) to more than 50 per cent. and to exclude the available commitments of defaulting lenders for the purposes of amendments or waivers. |
9. | Super Majority Lenders: amend Credit Agreement to provide for a definition of Super Majority Lenders so that amendments and waivers in respect of the release of any guarantee or security only requires the consent of Lenders representing 90 per cent. of Commitments. |
10. | Mandatory Costs: delete all references in the Credit Agreement and each Additional Facility Accession Agreement to Mandatory Costs and any related provisions. |
11. | Increase: amend Clause 2 (Facilities) to provide for the ability to increase Commitments under a Facility by increasing a Lender’s Commitments with that Lender’s consent or by including new Commitments of any bank, financial institution, trust, fund or any other entity selected by UPC Broadband, including (but without limitation) the ability to increase the Commitments in an amount equal to the amount of any commitments cancelled as a result of (i) illegality, or (ii) Commitments cancelled as a result of the relevant Lender becoming a defaulting lender. Amend to permit the Borrower to pay a fee to any increase Lender. |
12. | Additional Facilities: amend paragraph (c) of Clause 2.2 (Additional Facilities) so that Additional Facilities can be revolving credit facilities. |
13. | Documentary Credits: amend the Credit Agreement to permit utilisation of any Additional Facility that is a revolving credit facility by way of letters of credit, bank guarantees, indemnity, performance bonds and other documentary credits and include all consequential mechanical provisions to support the same, in each case in accordance with recent Liberty precedent. |
14. | Ancillary Facilities: amend the Credit Agreement to provide for an ability to incur bilateral ancillary lines with a Lender (with the consent of that Lender) as a carve-out to the Commitments under any Additional Facility that is a revolving credit facility and include all consequential mechanical provisions to support the same. |
15. | Rollover Loans: |
(b) | amend the Credit Agreement to clarify that, to the extent that a Borrower is due to repay (in full or in part) a revolving credit facility Advance on the same day on which such Borrower has also requested a revolving credit facility Advance in the same currency and in the same or a lesser amount, a rollover of such revolving credit facility Advance shall be effected on a cashless basis in accordance with recent Liberty precedent and to make consequential amendments to the Credit Agreement in accordance with recent Liberty precedent to reflect consistent rollover Advance provisions; and |
16. | Change of Control: amend the Credit Agreement or any other Finance Document to revise the change of control provisions in Clause 7.4 (Change of Control) of the Credit Agreement as follows: |
(a) | delete Clause 7.4(a)(i) of the Credit Agreement; |
(b) | in Clause 7.4(a)(ii) of the Credit Agreement: |
(i) | replace all references to "UGCE Inc." with "Liberty Global Europe Financing BV"; and |
(ii) | delete the words "and economic"; and |
(iii) | permit the distribution or other transfer of UPC Broadband Holdco and its Subsidiaries or a Holding Company of UPC Broadband Holdco to Liberty Global plc (the Ultimate Parent) or another direct Subsidiary of the Ultimate Parent through one or more mergers, transfers, consolidations or other similar transactions (the Reorganization), without the Reorganization being deemed to trigger a Change of Control and, upon such Reorganization, the Change of Control reference entity referred to in Clause 7.4(a)(ii) of the Credit Agreement will be replaced with the Ultimate Parent (or, if the distribution or other transfer |
(c) | amend Clause 7.4 (Change of Control) to extend the requirement to repay so that it falls 30 Business Days after the date of the notice from the Facility Agent and amend such Clause and the definition of Change of Control to reflect recent Liberty precedent, including the ability to effect a post-closing reorganization and a spin-off without triggering a mandatory prepayment thereunder. |
17. | Cancellation: amend Clause 7.9 (Right of repayment and cancellation in relation to a single Lender) (i) to provide for the transfer in full and at par (in addition to the right of repayment and cancellation) of the Commitment and participation in a utilisation of a single Lender to another Lender; and (ii) to provide that the right to repay, cancel or transfer also arises in respect of a Lender’s Commitment or participation in a utilisation where that Lender invokes the market disruption clause, such right to be exercisable subject to the same conditions as recent Liberty precedent. |
18. | Notice of Prepayment or Cancellation: amend Clause 7.10 (Miscellaneous provisions) to provide that a notice of prepayment or cancellation may be conditional and be revoked provided that a Borrower has, within 10 Business Days, indemnified any Lender in respect of such Lender’s Break Costs if the prepayment or cancellation does not occur as notified and the notice period can be reduced with the consent of the Majority Lenders under the relevant Facility. The definition of Break Costs will be amended to include a Lender’s losses as a result of having to unwind any related funding contract (which it had entered into or initiated upon receipt of such notice) as a result of the revocation of a notice of prepayment or cancellation. |
19. | Interest on Additional Facilities: amend Clause 8.2 (Selection of Interest Periods) to permit interest periods to be any period from 1, 2, 3 or 6 months or such other period of up to 12 months for all Advances as the Majority Lenders under the relevant Facility may agree and in addition and for Advances under a revolving credit facility only, any period between 1 day and 30 days. |
20. | Mandatory Prepayment from Excess Cash Flow and Relevant Convertible Preference Shares: delete Clause 7.5 (Mandatory Prepayment from Excess Cash Flow and Relevant Convertible Preference Shares) and make all necessary amendments to the Credit Agreement that are consequential and required by such deletion. |
21. | Mandatory Prepayment from Disposals Proceeds: amend Clause 7.6 (Mandatory Prepayment from disposal proceeds) and 7.7 (Date for prepayment) to require prepayment of disposal proceeds only to the extent required to ensure compliance with the Senior Debt to Annualised EBITDA maintenance financial covenant, exclude any proceeds from any other Permitted Disposal other than the general Permitted Disposals basket, remove the requirement to transfer disposal proceeds to a blocked account pending reinvestment, include a de minimis threshold of the greater of €250,000,000 and 5% of total assets and increase the reinvestment period from 12 months to 18 months (provided the disposal proceeds have been contracted to be reinvested within 12 months of the relevant Permitted Disposal) (and subject to the proviso that the financial covenant discussed above shall be retested at the end of such period and proceeds shall then be prepaid to the extent required to ensure compliance in line with recent Liberty precedent). |
22. | Increased Costs: amend Clause 12.3 (Exceptions) to include: |
(a) | costs attributable to gross negligence or wilful breach by a Finance Party; |
(b) | costs not notified within 30 days of a Finance Party becoming aware; |
(c) | FATCA deductions; and |
(d) | Bank Levies to the extent not more onerous than existing actual or draft laws (as applicable). |
23. | Tax: amend Clause 10 (Tax Gross-Up and Indemnities) to provide that the Finance Parties and the Borrower shall cooperate in good faith to complete any procedural steps to allow the Borrower to make payments without or with a reduced rate of withholding or deduction for taxes and each Finance Party will provide information requested by the Borrower in order for the Borrower to be exempt from withholding or deduction for any taxes under any applicable international treaty and in connection with FATCA and any applicable reporting requirements under FATCA in each case, in accordance with recent Liberty precedent. The Borrower will not be liable under any tax gross up or tax indemnity provisions in respect of any FATCA deductions other than in respect of any payments due to an SPV lender that has issued notes and advanced the proceeds of such notes to a member of the Borrower Group under an Additional Facility (provided that no gross up or indemnity shall be required for a FATCA deduction where such FATCA deduction arises from any non-compliance by a holder of such notes). Each Finance Party will be obliged to act reasonably and in good faith in making any determination for the purpose of Clause 10 (Tax Gross-Up and Indemnities). |
24. | VAT: amend Clause 10.6 (Value Added Tax) to (i) provide that no Party shall exercise any potential option for waiving a VAT exemption, (ii) provide that no payment shall be required from an Obligor to a Finance Party if the relevant VAT charge is caused by that Finance Party’s option to waive a VAT exemption and (iii) conform it such that it is consistent with any VAT provisions in recent Liberty precedent. |
25. | Market Disruption: amend the Credit Agreement to include market disruption provisions, provisions in relation to alternative interest rates and provisions for the protection of reference banks and their officers in accordance with recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market. |
26. | Borrower Group: amend the definition of Borrower Group to exclude, dormant subsidiaries that are not guarantors, project companies (as defined in accordance with recent Liberty precedent), asset securitisation subsidiaries (as defined in accordance with recent Liberty precedent) and entities that become subsidiaries as a result of an asset passthrough (as defined in accordance with recent Liberty precedent). |
27. | Permitted Affiliate Parent: amend the Credit Agreement in line with recent Liberty precedent to provide an ability to acquire Affiliates that are not Subsidiaries of UPC Broadband but are Subsidiaries of another Affiliate common holding company that is not a member of the Borrower Group (the holding entity of the acquired group being the “Permitted Affiliate Parent”) and to allow conforming changes including the ability to designate (subject to certain deliverables in accordance with recent Liberty precedent) any new holding company as the common holding company of the Borrower Group for the purposes of, amongst other things, the definitions of Change of Control, Restricted Payments and Permitted Payments, in each case, in accordance with recent Liberty precedent and for the purpose of reflecting a similar structure which supports |
28. | Representations: remove Clause 15.14 (Business Plan), paragraph (c) of Clause 15.11 (Environmental) Clause 15.7 (Material Contracts), paragraph (b) of Clause 15.8 (No Default), Clause 15.18 (Works councils), Clause 15.25 (Dutch Banking Act) and Clause 15.27 (Public Utility Holding Company Act and Federal Power Act) and amend Clause 15.28 (Times for making representations and warranties) to exclude Clauses 15.5 (Non-violation) 15.8 (No default) 15.6 (Consents) 15.11 (Environmental), 15.21 (United States Regulations) and 15.22 (Anti-Terrorism Laws) from the representations and warranties deemed repeated under that clause. |
29. | Undertakings: |
(a) | amend Clause 16.2 (Financial information) to provide that to the extent financial statements are filed on a public register or published on the Borrower’s or Liberty Global plc’s website they shall be deemed supplied to the Facility Agent; |
(b) | amend Clause 16.3 (Information – miscellaneous) to provide for delivery of information by the Borrower to the Lenders (who have not objected) by posting to a designated website or email address of each Lender; |
(c) | amend Clause 27 (Disclosure of Information) (i) to create a confidentiality obligation on the finance parties which applies to information of any member of the Borrower Group; (ii) to survive 12 months from the earlier of the date the Commitments have been repaid or cancelled in full and (in respect of that Finance Party only) the date a Finance Party resigns; and (iii) to reflect such clauses and language used in recent Liberty precedent as the company considers beneficial; and |
(d) | include new confidentiality provisions in relation to funding rates and reference bank quotations in accordance with recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market. |
30. | Financial Ratios: |
(a) | amend the definition of EBITDA to provide that the starting point for EBITDA may be operating income and include the following limbs as add backs: |
(i) | depreciation; |
(ii) | amortisation; |
(iii) | all stock-based compensation expenses; |
(iv) | (at the Parent’s option) other non-cash impairment charges; |
(v) | any extraordinary, one-off, non-recurring, exceptional or unusual gain, loss, expense or charge including any one-off reorganization or restructuring charges; |
(vi) | non-cash charges; |
(vii) | direct or related acquisition, disposal, recapitalization, debt incurrence or equity offering costs; |
(viii) | losses (gains) on the sale of operating assets; |
(ix) | (at the Parent’s option) the effects of adjustments under IFRS or GAAP attributable to the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to any consummated merger or acquisition or joint venture investment or the amortisation or write-off or write-down of amounts thereof, net of taxes; |
(x) | (at the Parent’s option) any adjustments to reduce the impact of the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies; |
(xi) | any specified legal expenses (and include a definition as per recent Liberty precedent); |
(xii) | any stock based compensation exercise; |
(xiii) | the amount of loss on the sale of any assets in connection with asset securitisation programme or receivables factoring transaction; |
(xiv) | any accrued management fees (and include a definition as per recent Liberty precedent) (whether or not paid) and any permitted holding company expenses; |
(xv) | any net earnings or losses attributable to non-controlling interests; |
(xvi) | any share of income or loss on equity investments; |
(xvii) | deferred financing cost written off and premiums paid to extinguish debt early; |
(xviii) | unrealised gains/losses in respect of hedging; |
(xix) | tangible or intangible asset impairment charges; |
(xx) | capitalised interest on Subordinated Shareholder Loans; |
(xxi) | accruals and reserves established or adjusted within twelve months after the closing date of any acquisition required to be established or adjusted in accordance with GAAP; |
(xxii) | any expense to the extent covered by insurance or indemnity and actually reimbursed; |
(xxiii) | any realized and unrealized gains and losses due to changes in the fair value of equity investments, any up front installation fees associated with commercial contract installations completed during the applicable reporting period (less any portion of such fees included in earnings); |
(xxiv) | any fees of other amounts charged or credited to UPC Broadband and the guarantors related to intra-Group services may be excluded to the extent such fees or other amounts (i) are not included in UPC Broadband’s externally reported operating cash flow or equivalent measure or (ii) are deemed to be exceptional or unusual items; |
(xxv) | to the extent not already included in operating income, the amount received from business interruption insurance and reimbursements of any expenses covered by indemnification or other reimbursement in connection with a permitted acquisition, investment or disposal of assets; |
(xxvi) | earn out payments to the extent such payments are treated as capital payments under the accounting principles; and |
(xxvii) | realised gains (losses) (to the extent not already included) arising out of the maturity or on termination of forward foreign exchange or other currency hedging contracts entered into with respect to operational cash flows, |
(b) | amend the definition of Senior Debt so that it starts with the consolidated Financial Indebtedness of the Borrower Group and excludes: |
(i) | intra-group borrowings; |
(ii) | shareholder loans subordinated under the term of the existing Security Deed or under any intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably); |
(iii) | borrowings represented by deposits or prepayments from subscribers/customers; |
(iv) | borrowings of acquired companies that will be discharged within 6 months; |
(v) | for the avoidance of doubt Financial Indebtedness arising by reason of mark-to-market fluctuations on hedging; |
(vi) | borrowings from the holders of equity to the extent advanced pro rata and repayable only on liquidation; |
(vii) | in respect of drawings under any Revolving Facility at the relevant time up to an amount of 0.25 multiplied by Annualised EBITDA for that latest Ratio Period (the “Revolving Facility Excluded Amount”); |
(viii) | Financial Indebtedness of a member of the Borrower Group under which the person to whom the Financial Indebtedness is owed does not have or will not have recourse to any member of the Borrower Group other than recoveries made on enforcement and such person is not entitled to commence proceedings for the winding up of any member of the Borrower Group until after the Commitments have been reduced to zero and all amounts owing under the Finance Documents have been repaid in full; and |
(ix) | Financial Indebtedness in respect of any contingent obligations. |
31. | Senior Debt to Annualised EDITDA: amend Clause 17.2(a) (Financial Ratios) such that the Senior Debt to Annualised EBITDA financial ratio may not be greater than 4.50:1.00 for each Ratio Period. |
32. | Interest Cover Covenant: remove the requirement for UPC Broadband to ensure that the ratio of EBITDA to Total Cash Interest is not less than certain ratios for each Ratio Period contained in Clause 17.2(b) (Financial Ratios) and remove any other references to such ratio. |
33. | EBITDA to Senior Debt Service Covenant: remove the EBITDA to Senior Debt Service covenant set out in Clause 17.2(c) (Financial Ratios) and remove any other references to such ratio. |
34. | EBITDA to Senior Interest Covenant: remove the EBITDA to Senior Interest covenant set out in Clause 17.2(d) (Financial Ratios) and remove any other references to such ratio. |
35. | Total Debt to Annualised EDITDA: amend Clause 17.2(e) (Financial Ratios) such that the Total Debt to Annualised EBITDA financial ratio may not be greater than 5.50:1.00 for each Ratio Period. |
36. | Pro forma EBITDA: amend Clause 17.3 (Calculations), so that, for the purposes of testing compliance with the financial ratios set out in Clause 18 (Financial Covenants) or in calculating EBITDA in connection with any transaction, investment, acquisition, disposition, restructuring, corporate reorganization or otherwise: |
(a) | the calculations are determined in good faith by a responsible financial or accounting officer and are made on a pro forma basis giving effect to all material acquisitions and disposals made by the Borrower Group (including in respect of anticipated expense and cost reductions) and including as a result of, or that would result from, any actions taken, committed to be taken or with respect to which substantial steps have been taken, by UPC Broadband or any other member of the Borrower Group including in connection with any cost reduction synergies or cost savings plan or program or in connection with any transaction, investment, acquisition, disposition, restructuring, corporate reorganizations or otherwise (regardless of whether these cost savings and cost reduction synergies could then be reflected in pro forma financial statements to the extent prepared); |
(b) | EBITDA for the relevant period will be calculated after giving pro forma effect thereto as if any incurrence, repayment, acquisition, discharge or disposal or acquisition occurred on the first day of such period; and |
(c) | interest on any indebtedness that bears interest at a floating rate and that is being given pro forma effect shall be calculated as if the rate in effect on the date of calculation had been applicable for the entire period (taking into account any hedging in respect of such indebtedness). |
37. | Equity Cures: amend Clause 17.4 (Cure provisions): |
(a) | so that the financial ratios set out in Clause 17 (Financial Covenants) may be remedied by deeming that such cure proceeds are (as applicable): |
(i) | added to Annualised EBITDA; or |
(ii) | applied to reduce Senior Debt and/or Total Debt, as applicable, |
(b) | to remove the requirement to repay or prepay the cure proceeds against any of the Facilities or Advances and to clarify that there is no requirement to repay or prepay all or any part of the Facilities or any Advances or to use the proceeds for any particular purpose; and |
(c) | so that an equity cure may be effected up to 15 Business Days following the delivery of the financial statements which showed a breach. |
38. | Additional Obligors: amend Clause 26.4 (Additional Obligors) to remove the obligation at sub-paragraph (b)(ii). |
39. | Additional Borrowers: amend paragraph (c) of Clause 26.4 (Additional Obligors) to provide that any member of the Borrower Group may become a Borrower in respect of a Facility if (i) it would not be materially adverse to the interests of any Lender under that Facility as determined by each such Lender (acting reasonably), (ii) the Majority Lenders consent, (iii) such member of the Borrower Group is incorporated in the same jurisdiction as an existing Borrower under that Facility or (iv) each Lender in respect of any proposed Additional Facility agrees. |
40. | Accounting Principles: amend, amongst other provisions, Clauses 15.9 (Accounts) and Clause 17.5 (Determinations) to permit UPC Broadband to elect (and to re-elect) to prepare its financial statements in accordance with IFRS or US GAAP; and adjust its financial covenants and definitions accordingly, or retain its existing financial covenants and definitions in each case in accordance with recent Liberty precedent (including provision of a reconciliation where applicable) provided that following any election to revert back to US GAAP the ratios, definitions and financial covenant levels in existence at the original date of the Credit Agreement (updated to reflect any other amendments made since the original date of the Credit Agreement) shall be automatically reinstated. |
41. | Asset Securitisation Subsidiary: amend the Credit Agreement, as per recent Liberty precedent, to permit, amongst other things, acquisitions, disposals and investments in respect of asset securitisation subsidiaries and also to include (i) an ability for one or more members of the Borrower Group to provide limited recourse credit support by way of letter of credit, revolving facility commitment, guarantee or other credit enhancement up to a maximum amount of 25% of the principal amount of the indebtedness of an asset securitisation subsidiary (and such credit enhancement shall not count as Financial Indebtedness), (ii) the following as Permitted Security Interests: rights of set-off granted to any financial institution acting as a lockbox bank in connection with any asset securitisation programme or a receivables factoring transaction, security interests for the purpose of perfecting the ownership interests of a purchaser of receivables and related assets pursuant to any asset securitisation programme or a receivables factoring transaction, cash deposits or other security interests for the purposes of securing the limited recourse credit support at (i) above, security interests over investments in asset securitisation subsidiaries and liens arising in connection with other sales of receivables permitted under the Credit Agreement without recourse to the Borrower Group and (iii) an ability to make investments in cash in or to invest in indebtedness of asset securitisation subsidiaries. An asset |
42. | Permitted Disposals: |
(a) | amend the definition of Permitted Disposal at Clause 16.10(b) (Disposals) to include in addition to the existing “Permitted Disposals”: |
(i) | a payment required to be made under the senior secured finance documents; |
(ii) | disposals of property or other assets on bona fide arm’s length commercial terms in the ordinary course of business in consideration for, or to the extent that contractual arrangements are in place within 12 months of such disposals and the proceeds of that disposal are applied within 18 months after such disposal in the acquisition of property or other assets of a similar nature and approximately equal value to be used in the Business of the Borrower Group; |
(iii) | disposals by one member of the Borrower Group to another member of the Borrower Group provided that, if such assets subject to the disposal are subject to existing security, the Borrower within 15 Business Days of such disposal ensures that the assets remain subject to security; |
(iv) | disposals of any interest in real or heritable property by way of a lease or licence granted by a member of the Borrower Group to another member of the Borrower Group; |
(v) | disposals of any assets pursuant to the implementation of an Asset Passthrough (as such term is defined in recent Liberty precedent) or of any funds received pursuant to the implementation of a Funding Passthrough (as such term is defined in recent Liberty precedent); |
(vi) | disposals of property or other assets required to satisfy any pension plan contribution liabilities; |
(vii) | disposals of accounts receivable on arms’ length terms pursuant to an asset securitisation programme or receivables factoring transactions (recourse and non-recourse), provided that the aggregate amount of all such securitisations or receivables factoring transactions does not exceed the greater of €250,000,000 and 5% of Total Assets at any time; |
(viii) | disposals of shares or other interests in project companies, entities excluded from the Borrower Group which are subsidiaries of UPC Broadband or joint venture companies (each as defined in recent Liberty precedent) or the assignment of any Financial Indebtedness owed to a member of the Borrower Group by any project companies, entities excluded from the Borrower Group which are subsidiaries of UPC Broadband or a joint venture company; |
(ix) | disposals of accounts receivables which have remained due and owing from a third party for a period of more than 90 days and in respect of which the relevant |
(x) | disposals of assets subject to finance or capital leases pursuant to the exercise of an option by the lessee under such finance or capital leases; |
(xi) | disposals of assets in exchange for the receipt of assets of a similar or comparable value provided that where the assets being disposed of and replaced exceed a book value of €50,000,000, a certificate signed by an authorised signatory of UPC Broadband is delivered to the Facility Agent certifying (without personal liability) that the assets being received by the relevant member of the Borrower Group are of a similar or comparable value to the assets being disposed of; |
(xii) | disposals constituting the surrender of tax losses by any member of the Borrower Group (i) to another member of the Borrower Group, (ii) to any member of the Wider Group where the surrendering company receives fair market value for such tax losses from the relevant recipient, and (iii) in order to eliminate, satisfy or discharge any Tax liability of a former member of the Wider Group which has been disposed of in accordance with the terms of the Credit Agreement where a member of the Borrower Group would incur a liability if the Tax liability were not so eliminated, satisfied or discharged; |
(xiii) | disposals of assets to and sharing assets with any person who is providing services the provision of which have been or are to be outsourced to that person by any member of the Borrower Group subject to certain conditions reflected as set out in recent Liberty precedent and where the value of those assets does not exceed 5% of Bank Group Consolidated Revenues (as defined in recent Liberty precedent and subject to a carry forward to the following year); |
(xiv) | disposals of assets pursuant to sale and leaseback transactions where the aggregate fair market value does not exceed the greater of €250,000,000 and 5% of total assets in any financial year; |
(xv) | disposals of non-core assets acquired in connection with a transaction permitted under Clause 16.11 (Acquisitions and Mergers); |
(xvi) | disposals in connection with any sale , transfer, demerger, contribution, spin off or distribution of, any creation or participation in a joint venture and/or entering into a transaction or taking action with respect to, any assets, undertakings and/or businesses of the Borrower Group which compromise all or part of a business division within or outside of the Borrower Group, in each case, where such transaction has the prior approval of the Majority Lenders; |
(xvii) | disposals constituted by licences of intellectual property rights permitted by Clause 16.18 (Intellectual Property Rights); |
(xviii) | disposals of assets made pursuant to the establishment of a Permitted Join Venture or the disposal of assets to a Permitted Joint Venture; |
(xix) | disposals made in relation to a compulsory purchase order or any other order of any agency of state, authority or other regulatory body not exceeding €25,000,000 in any financial year; |
(xx) | disposals by any member of the Borrower Group of customer premises equipment to a customer; |
(xxi) | disposals of assets on arm’s length commercial terms where the cash proceeds of the disposal are reinvested within 12 months of the date of the disposal (or 18 months of the date of the disposal if, within 12 months, the proceeds are contractually committed to be so applied); |
(xxii) | disposal of real property if the fair market value in any financial year does not exceed the greater of €250,000,000 and 5% of total assets; |
(xxiii) | direct or indirect sale (or otherwise) of any part of a present or future undertaking, shares, property, rights or remedies or other assets by one or a series of transactions, related or not, required by a regulatory authority or court of competent jurisdiction; and |
(xxiv) | disposals of assets where the aggregate fair market value does not exceed the greater of €50,000,000 and 1% of total assets in any financial year; and |
(b) | a new paragraph (e) at Clause 16.10 such that if a transaction (or any portion) meets the criteria of a Permitted Disposal and also meets the criteria of a Permitted Payment, the Borrower, in its sole discretion, will be entitled to divide and classify such transaction (or any portion) as a disposal permitted under Paragraph (b) of Clause 16.10 (Disposals) and/or a Restricted Payment permitted under Clause 16.13 (Restricted Payments) in accordance with recent Liberty precedent. |
43. | Asset Passthrough and Funding Passthrough: amend, amongst others, Clauses 16.10 (Disposals), 16.11 (Acquisitions and mergers), 16.12 (Restrictions on Financial Indebtedness), 16.13 (Restricted Payments) and 16.14 (Loans and Guarantees) and any related definitions to permit, as per recent Liberty precedent, (i) asset transfers between a holding company of a Borrower outside of the Borrower Group and/or any other members of the wider Liberty group (excluding members of the Borrower Group) where such assets pass through one or more members of the Borrower Group before being finally transferred to the relevant holding company or wider Liberty group member (as applicable), subject to certain restrictions and (ii) funding transfers between a holding company of a Borrower outside of the Borrower Group and/or any other members of the wider Liberty group (excluding members of the Borrower Group) where funding is passed through one or more members of the Borrower Group before being finally being transferred to the relevant holding company or wider Liberty group member (as applicable), subject to certain restrictions. |
44. | Project Companies: amend the Credit Agreement to permit, as per recent Liberty precedent, amongst other things (a) the disposal of shares or other interests (including shareholder loans) in any special purpose company or its holding company whose creditors have no recourse to any member of the Borrower Group (except to the extent of any security granted over such shares or other interests) and (b) the grant of security over the shares or other interests in, or the assets of, such special purpose company (or its holding company). |
45. | Content Transactions: amend the Credit Agreement, as per recent Liberty precedent, such that, amongst other things: |
(a) | an amount (being the greater of €250,000,000 and 5% of total assets) of net proceeds are not required to be prepaid against the Facilities in mandatory prepayment; and |
(b) | payments (being up to the greater of €250,000,000 and 5% of total assets) in respect thereof will constitute Permitted Payments, |
46. | Permitted Acquisitions: amend the Permitted Acquisitions definition to include in addition to the existing “Permitted Acquisitions”: |
(a) | the purchase of or investment in Cash Equivalent Investments or marketable securities (as defined in recent Liberty precedent) (including by way of consideration in respect of any disposal as contemplated in Clause 16.10 (Disposals)); |
(a) | the incorporation of a company or the acquisition of an “off-the-shelf” company which is or becomes a member of the Borrower Group; |
(b) | any acquisition by any member of the Borrower Group in connection with a disposal permitted under Clause 16.10 (Disposals) and any acquisition by a member of the Borrower Group of shares issued in a Subsidiary of UPC Broadband or a subsidiary of any Permitted Affiliate Parent (as such term is defined in recent Liberty precedent) which in any case is a member of the Borrower Group and which will, after the acquisition of such shares, become a wholly-owned direct or indirect Subsidiary of UPC Broadband or a subsidiary of any Permitted Affiliate Parent as the case may be, provided that if the other shares of such Subsidiary are subject to existing Security Interests such newly issued shares shall also be subject to any existing Security Interest within 10 Business Days of their issue; |
(c) | any acquisition made by a member of the Borrower Group pursuant to the implementation of an asset passthrough or a funding passthrough; |
(d) | any acquisition by a member of the Borrower Group of any loan receivable security or other asset by way of capital contribution or in consideration of the issue of any securities or of subordinated debt; |
(e) | the acquisition of any leasehold interest in any assets which are the subject of a sale and lease back permitted under Clause 16.10 (Disposals); |
(f) | arising from the conversion of any company (the “Original Company”) from one form of organisation to another form of organisation provided that (i) if, prior to the time of such conversion, the Security Agent has the benefit of security over the shares of such Original Company or such Original Company is an Obligor, then UPC Broadband shall ensure that the Security Agent is provided with Security Interests over the equivalent ownership interests in, and substantially all of the assets of, the converted organisation |
(g) | investments in any asset securitisation subsidiary in connection with any asset securitisation programme or receivables factoring transaction otherwise permitted by Clause 16.10 (Disposals) that is reasonably necessary or advisable to effect such asset securitisation programme or receivables factoring programme; |
(h) | an amendment to increase the de minimis threshold on Majority Acquisitions to refer to €250,000,000 as the threshold amount rather than €40,000,000 and to extend the period of time for UPC Broadband to deliver a certificate in respect of such Majority Acquisition to the Facility Agent from 15 to 60 days; |
(i) | in respect of Majority Acquisitions, to delete any requirement to provide a business plan, acquisition business plan, or other financial projections subject however to retention of a requirement to certify pro forma compliance with the ratio of Senior Debt to Annualised EBITDA and being less than or equal to 4.50:1.00; increase time period for deliverables to within 60 days of the acquisition; provide that any certificate required may be signed by an authorized officer of the Borrower; and make such other conforming changes required to bring in line with recent Liberty precedent. |
(j) | any acquisition of share capital of any existing member of the Borrower Group provided that if any share capital in such member of the Borrower Group is subject to existing Security Interests such acquired share capital shall also be subject to a Security Interest within 10 Business Days; |
(k) | any purchase or acquisition of assets in the ordinary course of business; and |
(l) | acquisitions which are not otherwise permitted under the definition of Permitted Acquisitions provided that the aggregate consideration paid in respect of such acquisitions does not exceed 300,000,000. |
47. | Permitted Joint Ventures: amend the Permitted Joint Venture provisions to, in addition to the existing “Permitted Joint Ventures”: |
(a) | increase the de minimis threshold on JV Minority Acquisitions to refer to €250,000,000 as the threshold amount rather than €40,000,000 and to extend the period of time for UPC Broadband to deliver a certificate in respect of such JV Minority Acquisitions to the Facility Agent from 15 to 60 days; and |
(b) | delete any requirement to provide a business plan, acquisition business plan, or other financial projections subject however to retention of a requirement to certify pro forma compliance with the ratio of Senior Debt to Annualised EBITDA and being less than or equal to 4.50:1.00; increase time period for deliverables to within 60 days of the acquisition; provide that any certificate required may be signed by an authorized officer of the Borrower; and make such other conforming changes required to bring in line with recent Liberty precedent. |
48. | Permitted Financial Indebtedness: amend the definition of Permitted Financial Indebtedness to, in addition to the existing “Permitted Financial Indebtedness”: |
(a) | permit any Financial Indebtedness arising in relation to either an asset passthrough or a funding passthrough; |
(b) | permit vendor financing arrangements and sale and leaseback transactions provided that the pro forma Senior Debt to Annualised EBITDA is equal to or less than, 4.50:1.00 provided that the vendor financing provider or lessor is not permitted to benefit from any Security Interest other than the assets subject to such financing arrangements; |
(c) | permit members of the Borrower Group to give subordinated unsecured guarantees in respect of any debt issued by a Holding Company of UPC Broadband in accordance with recent Liberty precedent subject to the terms of an intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably); |
(d) | permit any Financial Indebtedness arising in respect of any performance bond, guarantee, standby letter of credit or similar facility entered into by any member of the Borrower Group to the extent that cash is deposited as security for the obligations of such member of the Borrower Group thereunder; |
(e) | permit Financial Indebtedness of asset securitisation subsidiaries (as described above) incurred solely to finance any asset securitisation programme or receivables factoring transaction otherwise permitted under the definition of Permitted Disposals; |
(f) | permit Financial Indebtedness arising under tax-related financings designated in good faith as such by prior written notice from the Borrower to the Facility Agent provided that such indebtedness does not exceed €250,000,000 at any time; |
(g) | permit Financial Indebtedness which is incurred by an Obligor provided that (after the incurrence of such indebtedness) on the quarterly Accounting Period prior to such incurrence the ratios contained within Clause 17.2 (Financial Ratios) are not exceeded or breached, calculated on a pro forma basis, and provided further that the Financial Indebtedness is subject to the terms of an intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably); |
(h) | permit Financial Indebtedness in connection with Senior Secured Notes (as such term is defined in recent Liberty precedent) and any guarantee in respect of any Senior Secured Notes given by a member of the Borrower Group which is an Obligor subject to the terms of an intercreditor agreement, on terms satisfactory to the Facility Agent (acting reasonably); |
(i) | include a provision such that if that Financial Indebtedness meets the criteria of more than one of the types of Permitted Financial Indebtedness in the definition of Permitted Financial Indebtedness, UPC Broadband, in its sole discretion, may classify such item of Financial Indebtedness on the date of its incurrence and shall only be required to include the amount and type of such Financial Indebtedness in one of the limbs of that definition and will be permitted on the date of such incurrence to divide and classify an item of such Financial Indebtedness in more than one of such limbs, and, from time to time, may reclassify all or a portion of such Financial Indebtedness; |
(j) | at Clause 16.12(b)(xi), delete the requirements that such Financial Indebtedness was not incurred in contemplation of the acquisition and that it is discharged within 6 months of the date of completion of the acquisition; and |
(k) | at Clause 16.12(b)(xvii), permit any member of the Borrower Group to incur Financial Indebtedness under this general basket of up to an aggregate of the greater of €250,000,000 and 5% of total assets. |
49. | Permitted Transaction: include a definition of “Permitted Transaction” and make consequential amendments to the Credit Agreement to ensure the following are permitted by the covenants in accordance with recent Liberty precedent: |
(a) | transactions conducted in the ordinary course of trading on arm’s length terms (other than (i) any sale, lease, licence, transfer or other disposal and (ii) the granting or creation of any Security Interest or the incurring or permitting to subsist of Financial Indebtedness); |
(b) | a post-closing reorganisation and spin offs in line with recent Liberty precedent; |
(c) | any other transaction approved by the Majority Lenders; and |
(d) | the solvent liquidation or reorganisation of any member of the Borrower Group which is not an Obligor so long as distributions are made to other members of the Borrower Group. |
50. | New Notes Issuances and Additional Senior Secured Debt: amend the Finance Documents to provide that (subject to certain protections such that creditors of the new indebtedness are not structurally senior to the Lenders) any member of the Borrower Group (including a newly incorporated company which is a member of the Borrower Group) may issue notes and incur additional term or revolving debt or operational expenditure facilities which rank pari passu with the rights of the Lenders and shall be capable of being secured by the transaction security and provided that the proceeds of such debt may be used to, amongst other things, refinance the Additional Facilities and for general working capital or operational purposes provided that (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) such Financial Indebtedness is Permitted Financial Indebtedness. |
51. | Permitted Business: delete the definition of Permitted Business so that there are no geographic restrictions and delete Clause 16.8 (Permitted Business) and replace it with a clause that provides that no member of the Borrower Group shall, without the prior written consent of the Majority Lenders or save as otherwise permitted by the terms of this Agreement, make any change in the nature of its business as carried on immediately prior to the date of the amendment and restatement, which would give rise to a substantial change in the business of the Borrower Group taken as a whole from that set forth in the definition of Business, provided that such clause shall not be breached by an Obligor or any member of the Borrower Group making a permitted disposal, a permitted acquisition or investment or entering into any permitted joint venture, in line with recent Liberty precedent. |
52. | Permitted Payments: |
(a) | amend the definition of Permitted Payment to include in addition to the existing “Permitted Payments”: |
(i) | a de minimis threshold of €5,000,000 under which the restrictions on entering into transactions with a Restricted Person in Clause 16.13 (Restricted Payments) will not apply; |
(ii) | payments in respect of a Permitted Acquisition or a Permitted Disposal; |
(iii) | paragraph (b) of the definition containing a carve out for management fees to be amended to refer to the greater of €50,000,000 and 1% of total assets of the Borrower Group in any financial year; |
(iv) | payments to the extent required to pay subordinated notes trustee amounts; |
(v) | following the occurrence of an Event of Default, payments to the extent required to fund Permitted Payments not otherwise prohibited under the Intercreditor Agreement as amended from time to time; |
(vi) | payments to the extent such distribution, dividend, transfer of assets, loan or other payment is in respect of a nominal amount; |
(vii) | payments made directly by means of discounts with respect to any participation interest issued or sold in connection with an asset securitisation programme or receivables factoring transaction which is otherwise permitted under the Credit Agreement; |
(viii) | payments or distributions or the repayment of a loan or redeemable equity made pursuant to an Asset Passthrough or a Funding Passthrough, in each case, funded from cash generated by entities outside of the Borrower Group; |
(ix) | payments or distributions, or the repayment of a loan, or the redemption of loan stock or redeemable equity made to any member of the Wider Group (other than a member of the Borrower Group) provided that (i) an amount equal to such payment is reinvested by such member of the Wider Group (other than a member of the Borrower Group) into a member of the Borrower Group within three days of receipt thereof; (ii) the total amount of such payments and reinvested amounts does not exceed €300,000,000 and (iii) where such payments are made in cash, any reinvested amounts are also made in cash provided that reinvested amounts shall be in the form of subordinated debt, equity or the repayment of an intercompany loan or advance; |
(x) | payments of any dividend, payment, loan or other distribution, or the repayment of a loan or the redemption of loan stock or redeemable equity, in each case, which is required in order to facilitate the making of payments by any person and to the extent required by the terms of (i) the Finance Documents, (ii) the Senior Secured Notes (as such term is defined in recent Liberty precedent), (iii) Holdco Debt (as defined in recent Liberty precedent), subject to the same conditions as set out in recent Liberty precedent, (iv) by the terms of any hedging agreements of Holdco Debt to which any immediate holding company of UPC |
(xi) | payments to enable any holding company of a member of the Borrower Group to pay taxes that are due by such holding company but which are allocable to (I) the Borrower Group and due by such holding company as a result of the Borrower Group being included in a fiscal unity with such holding company or (II) acting as a holding and/or financing company of the Borrower Group; |
(xii) | transactions contemplated by a disposal or similar transaction required by a regulatory authority or a court of competent jurisdiction; |
(xiii) | payments of an amount up to €250,000,000 from the cash proceeds of a Content Transaction (as such term is defined in recent Liberty precedent) provided that no Event of Default has occurred and is continuing; |
(xiv) | payments made to the Borrower’s holding company and any permitted affiliate of the Borrower’s holding company of amounts outstanding in relation to Subordinated Shareholder Loans or subordinated debt the proceeds of which are to be used by such holding company of the Borrower to refinance debt which it has incurred in an amount equal to the amount of Subordinated Shareholder Loan or subordinated debt received by the Borrower’s holding company; |
(xv) | payments made with the consent of the Majority Lenders; |
(xvi) | payments to any direct or indirect shareholder of a member of the Borrower Group for out-of-pocket expenses incurred in connection with its direct or indirect investment in a Borrower Group company; |
(xvii) | payments for certain holding company expenses (as defined in accordance with a recent Liberty precedent) including expenses payable in connection with, amongst other things, compliance with laws and regulations, reporting obligations, related indemnification payments, employee, directors and officers insurance policies and general corporate overhead expenses); |
(xviii) | payments for financial advisory, financing, underwriting or placement services or other investment banking activities, in particular acquisitions or divestitures, approved by the board of the holding company; |
(xix) | any other distribution, dividend, transfer of assets, loan or other payment not falling within the other limbs of the definition and not exceeding an aggregate amount of the greater of €250,000,000 and 5% of total assets in any financial year; |
(xx) | payment of an amount corresponding to the Revolving Facility Excluded Amount at any time provided that if at any time after a Permitted Payment under this limb is made the revolving facility is prepaid or repaid in full or in part, a further Permitted Payment may be made under this limb equal to (A) if in full, |
(xxi) | payments in connection with any earn out; |
(xxii) | the transfer of tax losses to Restricted Persons (provided that the amount of such tax losses shall be deemed reduced by any payment received by any member of the Borrower Group from any Restricted Person for such tax losses) subject to pro rata leverage covenant compliance and no default having occurred or occurring; |
(xxiii) | payments in relation to any tax losses received by any member of the Borrower Group from any Restricted Person provided that such payments shall only be made in relation to such tax losses in an amount equal to the amount of tax that would have otherwise been required to be paid by any member of the Borrower Group if those tax losses were not so received and such payment shall only be made in the tax year in which such losses are utilised by any member of the Borrower Group; and |
(xxiv) | payments to fund the purchase of any management equity which is subsequently transferred to other or new management (together with the purchase or repayment of any related loans) and/or to make other compensation payments to departing management. |
(b) | amend Clause 16.13 (Restricted Payment) to include a provision, such that if a Permitted Payment meets the criteria of more than one of the categories described, UPC Broadband will be entitled to classify such Permitted Payment (or portion thereof) on the date of its payment or later reclassify such Permitted Payment (or portion thereof) in any manner that complies with the covenant in that Clause; and |
(c) | amend Clause 16.13 (Restricted Payment) to exclude Permitted Affiliate Transactions from the restriction in such Clause (with a new definition of such term to be included, consistent with recent Liberty precedent) and so that such Clause does not restrict transactions to the extent they constitute Permitted Payments. |
53. | Permitted Loans: amend Clause 16.14 (Loans and Guarantees): |
(a) | to include a limb for counter guarantees in relation to any rental guarantees; |
(b) | to include any credit given by a member of the Borrower Group to another member of the Borrower Group which arises by reason of a cash pooling, set off or other cash management arrangements of the Borrower Group or by reason of other credits relating to services performed or allocation of expenses; |
(c) | to include a limb for loans to employees in the ordinary course of employment or to fund exercise of share options or purchase of capital stock of up to €10,000,000 in aggregate; |
(d) | to include a loan made by a member of the Borrower Group pursuant to either an asset passthrough or a funding passthrough; |
(e) | to include a limb to include loans made by a member of the Borrower Group to a member of the Wider Group where the proceeds of the loan are to be used to make payments or for guarantees in relation to any senior unsecured notes (as such term is defined in the recent Liberty precedent) or to make Permitted Payments, provided that no Event of Default has occurred and is continuing or to fund any Permitted Payments following the occurrence of an Event of Default which are not prohibited under the terms of the Intercreditor Agreement as amended from time to time; |
(f) | to include loans granted by any member of the Borrower Group to a member of the Wider Group where the indebtedness outstanding relates to intra-group services in the ordinary course of business; |
(g) | to provide for the granting of customary title guarantees given in connection with the assignment of leases which are permitted under Clause 16.10 (Disposals); |
(h) | to include any loans arising from Subscribers (as defined in recent Liberty precedent) resulting from deferred purchase terms; |
(i) | to include loans made which are Permitted Financial Indebtedness or are in connection with Permitted Acquisitions; |
(j) | to replace the reference to €100,000,000 in paragraph (f) with €300,000,000 to increase the basket for lending transactions in connection with permitted acquisitions; |
(k) | to permit customary liquidity loans in connection with a permitted asset securitisation program or receivables factoring transaction; and |
(l) | to provide for the Borrower to be able to make loans and guarantees under a general basket of up to an aggregate of the greater of €100,000,000 and 2% of total assets. |
54. | Permitted Security Interest: Amend the definition of “Permitted Security Interest” to include Security Interests in addition to the existing “Permitted Security Interests”: |
(a) | which arise under any senior secured finance document which is subject to the term of an intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably); |
(b) | which arise by operation of law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty or a member of the Borrower Group in each case entered into in the ordinary course of business of the relevant member of the Borrower Group; |
(c) | which arise in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which arise in the ordinary course of business or by operation of law, under banking arrangements, retention of title arrangements or hedging arrangements; |
(d) | which arise from any finance leases, sale and leaseback arrangements or vendor financing arrangements which are permitted under Clause 16.12 (Restrictions on Financial Indebtedness); |
(e) | which arise over any asset acquired by a member of the Borrower Group and subject to which such asset is acquired provided that such Security Interest was not created in contemplation of the acquisition of the asset and the Financial Indebtedness secured thereby (i) is Financial Indebtedness of the relevant acquiring member of the Borrower Group, (ii) is Permitted Financial Indebtedness on the basis that it existed at the date of completion of a Permitted Acquisition or is Financial Indebtedness under permitted sale and leaseback transactions or vendor financing arrangements and (iii) the amount of such Financial Indebtedness is not increased at any time; |
(f) | which arise over any property or other assets to satisfy any pension plan contribution liabilities provided that the value of such property and assets, taken together in aggregate, and together in aggregate with any disposals permitted pursuant to (a)(vi) of clause 42 above, do not exceed €150,000,000 at any time; |
(g) | constituted by a rent deposit deed entered into on arm’s length commercial terms and in the ordinary course of business which secure obligations of a member of the Borrower Group in relation to property leased to a member of the Borrower Group; |
(h) | which is granted over the shares of indebtedness owed by or over assets attributable to a Project Company (as such term is defined in recent Liberty precedent) or a Permitted Joint Venture; |
(i) | over cash deposited as security for the obligations of a member of the Borrower Group in respect of a performance bond, guarantee, standby letter of credit or similar facility entered into in the ordinary course of business by a member of the Borrower Group; and |
(j) | which is created by a member of the Borrower Group in favour of the Security Agent in substitution for any Security Interest under an existing Security Document provided that the principal amount secured thereunder may not be increased unless any Security Interest in respect of such increased amount would be otherwise permitted under the Credit Agreement. |
55. | Changes to Thresholds: |
(a) | in the definition of Permitted Security Interest, permit the Borrower to secure Financial Indebtedness on a pari passu or junior-ranking basis provided that (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) the Senior Debt to Annualised EBITDA ratio on a pro forma basis would not be greater than 4.50:1.00 and provided that such Financial Indebtedness is subject to an intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably) and where (in the case of such Financial Indebtedness being secured on a junior-ranking basis) the rights of the holders of such Financial Indebtedness in respect of any payment will be contractually subordinated to the rights of the Lenders on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt, as referred to in recent Liberty precedent); |
(b) | in Paragraph (n) of the definition of Permitted Security Interest, provide that the Borrower may secure Financial Indebtedness under this general basket of up to the greater of €250,000,000 and 5% of total assets, such security to be either on assets not subject to the security in favour of the Lenders or otherwise secured on a junior ranking basis over assets subject to the Lenders’ security (in the latter case provided that the rights of the holders of such Financial Indebtedness in respect of any payment will be contractually subordinated to the rights of the Lenders on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt, as referred to in recent Liberty precedent); and |
(c) | in Clause 18.5 (Cross default), delete references to €15,000,000 and €50,000,000 and replace them with €75,000,000. |
56. | Security and Guarantee Release: amend the relevant provisions of the Credit Agreement (in particular Clauses 26.4 (Additional Obligors), and 16.23 (Share Security)) to provide that, subject to certain thresholds being met no Obligor nor any other member of the Borrower Group is required to provide any Security or guarantee other than (i) Security over the shares that it holds in any Obligor, (ii) Security required under the terms of the Credit Agreement in respect of Subordinated Shareholder Loans, (iii) Security over loans made by Obligors to other members of the Borrower Group in accordance with clause 16.14 (Loans and guarantees) and (iv) a guarantee from the Obligors under the terms of the Credit Agreement and include a provision to authorise the Security Agent to release any other Security or guarantees other than the aforementioned and to release Security and guarantees in respect of Permitted Disposals and to permit relevant Security to be released if a Guarantor resigns and that guarantors can resign provided that the guarantor coverage test would still be met notwithstanding such release. |
57. | Events of Default: |
(a) | amend Clause 1.2 (Construction) to clarify that both a Default and an Event of Default is not continuing if remedied or waived; |
(b) | amend Clause 18.2 (Non-payment) to delete the qualification relating to technical or administrative errors and to include a 3 Business Day grace period for payment of principal and a 5 Business Day grace period for any other payments; |
(c) | include a new Paragraph (v) of Clause 18.6 (Insolvency) by clarifying that commencing negotiations with the Finance Parties will not constitute an Event of Default under this Paragraph and amend Paragraph (a) of Clause 18.7 (Insolvency Proceedings) including a general exclusion for contested proceedings that are frivolous, vexatious or an abuse of the process of the court but without the requirement to provide a legal opinion with respect thereto to the Facility Agent; |
(d) | amend Clause 18.5 (Cross default) to carve out circumstances being contested in good faith, Financial Indebtedness relating to hedging permitted under the Credit Agreement where a termination event arises as a result of a financing and Financial Indebtedness that is cash collateralised and such cash is available for application in satisfaction of this indebtedness in each case in line with recent Liberty precedent; and |
(e) | delete Clause 18.14 (Seizure), Clause 18.15 (Environmental Matters) 18.17 (Material Contracts) (and all references to Material Contracts) and Clause 18.19(b) (ERISA). |
58. | Impaired Agent: amend the Credit Agreement to provide for impaired agent provisions language used in recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market so that alternative payment and notice arrangements are permitted if the Facility Agent is impaired. |
59. | Defaulting Lender: include standard defaulting lender provisions used in recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market so as the commitments of a defaulting lender may be cancelled and it will have no rights to vote in respect of such cancelled commitments. Clarify that no commitment fee will be payable to a defaulting lender. |
60. | Replacement of Agent/Security Agent: amend Clause 19.14 (Resignation of Agents), in accordance with recent Liberty precedent, to: |
(a) | remove the requirements for UPC Broadband to: (a) be unsatisfied with the performance of the Agent; (b) specify reasonable grounds for replacement in the relevant notice and (c) add a requirement that no Default is outstanding at the relevant time; |
(b) | provide that UPC Broadband may remove the Facility Agent if the status or identity of the Facility Agent causes any Obligor to become liable for any withholding tax in connection with FATCA; and |
(c) | provide that UPC Broadband will have the right to appoint a successor Facility Agent without the Lenders’ consent twice during the life of the Facilities, |
61. | Assignments / Transfers of Lenders: clarify that the Borrower should have the right to withhold consent in respect of an assignment/transfer of any revolving credit facility to an entity which is not a lender under a revolving facility to the wider Liberty group (subject to no consent being required in the case of transfers to other Lenders or affiliates of Lenders or following an event of default which is continuing). There should be no unreasonableness or delay qualifier on this right (in respect of any revolving credit facility only) and no deemed consent concept. |
62. | Replacement of a Lender: amend the Credit Agreement to include the right to replace a Lender (in whole and at par) if the Obligor becomes obliged to make payment under Illegality, Increased Costs, Tax Gross up or Tax Indemnity provisions to any Lender, if a Lender invokes the provisions of Clause 11.2 (Market Disruption) or if a Lender is a defaulting lender. |
63. | Expenses: amend Clause 21.2 (Amendment costs) to make legal fees subject to any agreed caps; and Clause 22 (Stamp Duties) to ensure that any liability of the Borrower for the payment of any tax (including stamp taxes) does not extend to taxes payable in respect of an assignment or transfer of a Lender’s interest. |
64. | Amendments: |
(a) | amend Clause 25 (Amendments and waivers) to introduce a class exception, whereby any amendment or waiver that relates only to the rights or obligations of a particular utilisation or Facility and does not materially and adversely affect the rights or interests |
(b) | amend Clause 25.2 (Exceptions) to require the consent of affected Lenders only and not all Lenders (and make any consequential changes by amending for example, all references to matters requiring all Lender consent to only requiring affected Lender consent); |
(c) | include a new paragraph (e) to Clause 25.2 (Exceptions), to permit the Facility Agent to make technical, minor, operational and OID amendments without consent from any Lenders, on terms consistent with recent Liberty precedent as at the date of implementation of the amendments; |
(d) | include a new clause 25.5 (Calculation of Consent), such that where a request for a waiver of, or an amendment to, any provision of any Finance Document has been sent by the Facility Agent to the Lenders at the request of an Obligor, each Lender that does not respond to such request for waiver or amendment within 10 Business Days after receipt by it of such request (or within such other period as the Facility Agent and UPC Broadband shall specify), shall be excluded from the calculation in determining whether the requisite level of consent to such waiver or amendment was granted; and |
(e) | include a new paragraph (f) of Clause 25.2 (Exceptions) such that the release of guarantees and security under the Finance Documents (and not in accordance with the Finance Documents) requires the consent of affected Lenders whose undrawn Commitments and participations are greater than 90 per cent. of all undrawn Commitments and participations and delete paragraph (a)(x) of Clause 25.2 (Exceptions). |
65. | Covenant Compliance: disapply Clause 4.3 (Pro forma covenant compliance) so that there is no drawstop if the financial covenants would not be complied with in relation to a rollover of a revolving credit facility Advance or the redrawing of a term Advance. |
66. | Indemnification requirements: amend the Credit Agreement in respect of any indemnity granted by the Borrower to conform to recent Liberty precedent including, amongst others, amending Clause 10.3 (Tax Indemnity) such that the indemnity is paid within 10 Business Days and the loss is calculated on a reasonable basis. |
67. | Non-consenting Lenders: include a provision whereby if 80 per cent. of affected Lenders have consented to a request for an amendment or waiver, UPC Broadband may elect to replace any Lender that has not consented to such request by procuring that its relevant Commitments are acquired at par in accordance with the provisions in recent Liberty precedent. |
68. | References: amend the Credit Agreement: |
(a) | so that all references to any party include any assignees, transferees, successors in title and merged entities thereof; and |
(b) | to take account of the fact that certain Facilities under the Credit Facility have been (as at the date of this Agreement) repaid and cancelled in full. |
69. | Subsidiary: amend the definition of Subsidiary so that for the purposes of the financial covenants and related provisions that a “Subsidiary” of a person includes legal entity which is accounted for under applicable GAAP or IFRS as a Subsidiary. |
70. | Material Adverse Effect: amend definition of Material Adverse Effect so that it relates only to payment obligations and not “other material obligations”. |
71. | Certain Funds Acquisitions: amend Clause 4.2 (Further Conditions Precedent) to provide that the relevant Additional Facility Lenders may amend or waive any of the conditions at paragraphs (a) and (b) in relation to any Advance under an Additional Facility in relation to an acquisition where the relevant vendor requires, or it is commercially advantageous in connection with any competitive bid process that, such acquisition is completed on a certain funds basis other than an Event of Default that has arisen under Clause 18.2 (Non-payment) or Clauses 18.6 (Insolvency) to 18.10 (Similar proceedings). |
72. | Calculation of EURIBOR/LIBOR: amend the Credit Agreement to include provisions for the calculation of EURIBOR/LIBOR in accordance with recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market provided that in no circumstances will EURIBOR/LIBOR be deemed to be zero and to include a requirement for the Facility Agent to notify the relevant Borrower of each funding rate. |
73. | Voluntary cancellation/prepayment: amend clauses 7.2 (Voluntary cancellation) and 7.3 (Voluntary prepayment) to delete the references to delivering to the Facility Agent a duly completed Cancellation Notice not less than “five” Business Days prior to the due date of the cancellation/prepayment and replace it with a reference to not less than “three” Business Days or such other time period agreed between UPC Broadband and the Facility Agent prior to the due date of the cancellation/prepayment. |
74. | Deferred Acquisition Costs: amend the thresholds in clause 4.4 (Deferred Acquisition Costs) such that the reference to €100,000,000 is replaced with a reference to €250,000,000 and the references to €150,000,000 are replaced with references to €300,000,000. |
75. | Additional Facility Accession Agreement: amend the Additional Facility Accession Agreement definition to delete the reference to “with such amendments as the Facility Agent may approve or reasonably require” and replace it with a reference to “with such amendments as may be agreed between UPC Broadband and the relevant Lender or Lenders under the proposed Additional Facility”. |
76. | Guarantor Coverage: replace the reference to “95%” at paragraph (b)(i)(B) of Clause 26.4 (Additional Obligors) with a reference to “80%” and at paragraph (b)(i)(A) of Clause 26.4 (Additional Obligors) replace “the Guarantors as of the Effective Date (other than UPC Broadband, any UPC Broadband Holdco, UPC Holding and UPC Holding II) and their respective Subsidiaries” with “the Guarantors as of the Effective Date (other than UPC Broadband, any UPC Broadband Holdco, UPC Holding, UPC Holding II and any Subsidiary of UPC Broadband that is a Holding Company of all other Subsidiaries of UPC Broadband) and their respective Subsidiaries”. |
77. | UGCE Borrower Group: amend the definition of UGCE Borrower Group so that it refers to UPC Holding and any other company of which UPC Broadband is a Subsidiary and which is a Subsidiary of UPC Holding. |
78. | Benefit of Maintenance Covenant: amend the Credit Agreement to provide that: |
(a) | the maintenance covenants at Clause 17.2 (Financial ratios) shall only be for the benefit of those Lenders under Additional Facilities that (i) are stated to have the benefit of such maintenance covenants or (ii) do not contain a statement that they do not have the benefit of such maintenance covenants, in each case, in the relevant Additional Facility Accession Agreement; |
(b) | a new definition of “Composite Maintenance Covenant Instructing Group” is included which shall consist of a Lender or Lenders whose Additional Facility Commitments in respect of Additional Facilities that benefit from the maintenance covenants at Clause 17.2 (Financial ratios) amount in aggregate to more than 50% of the total Additional Facility Commitments in respect of Additional Facilities that benefit from the maintenance covenants calculated in accordance with the new clause 25.5 (Calculation of Consent) (as referred to in paragraph 64(d) of this Schedule) and not taking into account Commitments in respect of which a cancellation notice has been issued; |
(c) | following a breach of Clause 17.2 (Financial ratios), subject to the expiry of the cure period in accordance with Clause 17.4 (Cure provisions), (i) the Facility Agent shall, if instructed by the Composite Maintenance Covenant Instructing Group, take acceleration action in respect of the Additional Facilities and Commitments held by Lenders in the Composite Maintenance Covenant Instructing Group in accordance with recent Liberty precedent, (ii) there shall be a drawstop in relation to future Advances and (iii) there shall be an Event of Default continuing for the purposes of the operative covenants e.g. paragraph 52(a)(v) above; |
(d) | an Event of Default will be triggered if the Composite Maintenance Covenant Instructing Group give a direction to the Facility Agent in accordance with the new acceleration clause at (c) above; and |
(e) | amendments and waivers of Clauses 17.2 (Financial ratios) to 17.4 (Cure provisions) and the new acceleration clause at (c) above shall only be made with the consent of UPC Broadband and the Composite Maintenance Covenant Instructing Group and shall not require the consent of any other Finance Party. |
To: | The Bank of Nova Scotia as Facility Agent (the Facility Agent) and The Bank of Nova Scotia as Security Agent (the Security Agent) |
From: | UPCB Finance IV Limited (the Additional Facility AL Lender) |
Date: | April 15, 2015 |
1. | In this Agreement: |
2. | Unless otherwise defined in this Agreement, terms defined in the Credit Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the Credit Agreement. The principles of construction set out in Clause 1.2 (Construction) of the Credit Agreement apply to this Agreement as though they were set out in full in this Agreement. |
3. | We refer to Clause 2.2 (Additional Facilities) of the Credit Agreement. |
4. | This Agreement will take effect on the date on which the Facility Agent notifies UPC Broadband and the Additional Facility AL Lender that it has received the documents and evidence set out |
5. | The Additional Facility AL Lender agrees: |
(a) | to become a party to and to be bound by the terms of the Credit Agreement as a Lender in accordance with Clause 2.2 (Additional Facilities) of the Credit Agreement; and |
(b) | to become a party to the Security Deed as Lender and to observe, perform and be bound by the terms and provisions of the Security Deed in the capacity of Lender in accordance with Clause 9.3 (Transfers by Lenders) of the Security Deed. |
6. | The Additional Facility Commitment in relation to the Additional Facility AL Lender (for the purpose of the definition of Additional Facility Commitment in Clause 1.1 (Definitions) of the Credit Agreement) is its Facility AL Commitment. |
7. | The Borrower in relation to Facility AL is UPC Financing. |
8. | (a) Provided that any upsizing of Facility AL permitted under this Clause 8 will not breach any term of the Credit Agreement, Facility AL may be upsized by any amount, by the signing of one or more further Additional Facility AL Accession Agreements, that specify (along with the other terms specified therein) UPC Financing as the sole Borrower and which specify Additional Facility AL Commitments denominated in dollar, to be drawn in dollar, with the same Final Maturity Date and Margin as specified in this Additional Facility AL Accession Agreement. |
(b) | For the purposes of this Clause 8 (unless otherwise specified), references to Facility AL Advances shall include Advances made under any such further Additional Facility AL Accession Agreement. |
(c) | Where any Facility AL Advance has not already been consolidated with any other Facility AL Advance, on the last day of any Interest Period for such Facility AL Advance, that Facility AL Advance will be consolidated with any other Facility AL Advance which has an Interest Period ending on the same day as that Facility AL Advance, and all such Facility AL Advances will then be treated as one Advance. |
9. | Facility AL may be drawn by one Advance on the date of this Agreement and such date will constitute the Availability Period for Facility AL. No more than one Request may be made in respect of Facility AL under the Credit Agreement and such Request may only be in a principal amount of the Additional Facility Commitment in relation to Facility AL as set out in Clause 6 above. |
10. | The Facility AL Advance will be used for general corporate purposes and working capital purposes, including the repayment or prepayment of existing indebtedness. |
11. | The Final Maturity Date in respect of Facility AL is 15 January, 2025. Any outstanding Advance under Facility AL shall be repaid in full on the Final Maturity Date. |
12. | The interest rate for Facility AL will be a fixed rate of 5.375 per cent. per annum. This will be calculated in accordance with Clause 8.1 (Interest rate) of the Credit Agreement as being the sum of LIBOR, the applicable Margin and the Mandatory Costs (if applicable), where, in order to achieve the fixed rate referred to above, the applicable Margin will be, with respect to any Interest Period: |
(a) | 5.375 per cent. per annum, calculated on the basis of a 360-day year comprised of twelve 30-day months; |
(b) | the sum of LIBOR plus the Mandatory Costs (if applicable) for such Interest Period. |
13. | Pursuant to Clause 8.2 (Selection of Interest Periods) of the Credit Agreement, the Borrower hereby notifies the Facility Agent that while the Facility AL Advance is outstanding it selects six months for all Interest Periods in relation to that Advance. |
14. | Upon the delivery by the Facility Agent of a notice of cancellation of Facility AL pursuant to Clause 7.4(a)(v)(B) (Change of Control) of the Credit Agreement following the occurrence of a Change of Control (as defined under Clause 7.4 (Change of Control) of the Credit Agreement), UPC Broadband shall make a payment to the Facility Agent (for the account of the Additional Facility AL Lender) in an amount equal to 1 per cent. of the principal amount of the outstanding Facility AL Advance. Such payment shall be due and payable by UPC Broadband to the Facility Agent (for the account of the Additional Facility AL Lender) on the actual date of such mandatory prepayment. |
15. | Subject to Clause 18 of this Agreement, at any time prior to 15 January, 2020, upon the occurrence of any voluntary prepayment of the Facility AL Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement in an amount not to exceed 10% of the original principal amount of the Facility AL Advance during each twelve-month period commencing on the date of this Agreement, UPC Broadband shall make a payment to the Facility Agent (for the account of the Additional Facility AL Lender) in an amount (the Prepayment Premium) equal to 3.000% of the principal amount of the Facility AL Advance being prepaid, plus accrued and unpaid interest then due on the amount of the Facility AL Advance prepaid to the due date of prepayment. Such payment shall be due and payable by UPC Broadband to the Facility Agent (for the account of the Additional Facility AL Lender) on the actual date of such prepayment. Prior to 15 January, 2020, to the extent that during any twelve-month period commencing on the date of this Agreement, the principal amount of the Facility AL Advance prepaid in any one or more voluntary prepayments is greater than an amount equal to 10% of the original principal amount of the Facility AL Advance (any such amount, the Excess Early Redemption Proceeds), UPC Broadband will apply the Excess Early Redemption Proceeds to a voluntary prepayment of the Facility AL Advance as described in Clause 16 below. |
16. (a) | Subject to Clause 18 of this Agreement, at any time prior to 15 January, 2020, upon the occurrence of a voluntary prepayment of all or any part of the outstanding Facility AL Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement with any Excess Early Redemption Proceeds, UPC Broadband shall make a payment to the Facility Agent (for the account of the Additional Facility AL Lender) in an amount equal to the Make-Whole Amount (as defined below) (calculated as of a date no more than three Business Days prior to the date of the relevant Cancellation Notice) as of the due date of such prepayment. Such payment shall be due and payable by UPC Broadband to the Facility Agent (for the account of the Additional Facility AL Lender) on the actual date of such prepayment. |
(i) | the present value at such prepayment date of (i) the total amount that would be payable to the Facility Agent (for the account of the Additional Facility AL Lender) if all or such portion of the outstanding Facility AL Advance were prepaid pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement on 15 January, 2020 (including the outstanding principal amount of such Advance and the Additional Amount (as defined below) required under this Clause 16, but excluding accrued interest and any other amounts payable under the Credit Agreement in connection with such prepayment) plus (ii) all required remaining scheduled interest payments due in respect of all or such portion of the outstanding Facility AL Advance through 15 January, 2020 (excluding accrued but unpaid interest to the prepayment date), computed using a discount rate equal to the Treasury Rate (as defined below) as of such prepayment date plus 50 basis points; over |
(ii) | the principal amount of the outstanding Facility AL Advance being prepaid. |
(b) | Subject to Clause 18 of this Agreement, on or after 15 January, 2020, upon the occurrence of a voluntary prepayment of all or any part of the outstanding Facility AL Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement, UPC Broadband shall pay to the Facility Agent (for the account of the Additional Facility AL Lender) an amount (the Additional Amount) equal to the relevant percentage set out in the table below of the principal amount of the Facility AL Advance being prepaid on the due date of such prepayment, if prepaid during the twelve month period beginning on 15 January of the years indicated below: |
Year | Relevant Percentage | |
2020 | 2.688 | % |
2021 | 1.792 | % |
2022 | 0.896 | % |
2023 and thereafter | 0.000 | % |
17. | Subject to Clause 18 of this Agreement, at any time prior to 15 January, 2018 upon the occurrence of any voluntary prepayment of the Facility AL Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement with the Net Cash Proceeds of one or more Equity Offerings (the Equity Offering Early Redemption Proceeds) in an amount not to exceed 40% of the original principal amount of the Facility AL Advance, UPC Broadband shall make a payment to the Facility Agent (for the account of the Additional Facility AL Lender) in an amount (the Equity Claw Prepayment Premium) equal to 5.375% of the principal amount of the Facility AL Advance being prepaid, plus accrued and unpaid interest then due on the amount of the Facility AL Advance prepaid to the due date of prepayment. Such payment shall be due and payable by UPC Broadband to the Facility Agent (for the account of the Additional Facility AL Lender) on the actual date of such prepayment. |
(1) | matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise; |
(2) | is convertible or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of UPC Broadband, UPC Financing or a Subsidiary of UPC Broadband); or |
(3) | is redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of the date (a) of the stated maturity of Facility AL or (b) on which there are no amounts outstanding under Facility AL, provided that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further that any Capital Stock that would constitute Disqualified Stock solely because the |
18. | Notwithstanding Clauses 15, 16 and 17 above, no Prepayment Premium, Make-Whole Amount or Additional Amount shall be payable in connection with a voluntary prepayment of the whole of the outstanding Facility AL Advance by UPC Broadband pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement that is made following the completion of the UPC Exchange Transaction (as defined in the Indenture), provided that the Borrower has given notice of such prepayment not later than three Business Days prior to the completion of the UPC Exchange Transaction and such prepayment is made on the completion of the UPC Exchange Transaction. |
19. | The Additional Facility AL Lender acknowledges that the Borrower may discharge all or part of the Facility AL Advance pursuant to Clause 7.3 (Voluntary prepayment) of the Credit Agreement in connection with the UPC Exchange Transaction by way of one or a combination of (1) a cash prepayment, (2) an issue of new notes or (3) the purchase of the existing Notes (in the case of (2) and (3), in accordance with the mechanisms, and on the terms, agreed between the Borrower and the Additional Facility AL Lender at the relevant time and provided that the amount and date of such discharge is notified to the Facility Agent in writing by the Borrower and the Additional Facility AL Lender on or before the date of such discharge). The parties to this Agreement acknowledge that this Agreement may require amendment (in accordance with the relevant provisions of the Credit Agreement) to facilitate the discharge of all or part of the Facility AL Advance in connection with the UPC Exchange Transaction and agree to discuss and negotiate any such amendments in good faith at the relevant time. |
20. | For the purposes of any amendment or waiver, consent or other modification (including with respect to any existing Default or Event of Default) that may be sought by UPC Broadband and UPC Financing under the Credit Agreement on or after the date of this Agreement, the Additional Facility AL Lender hereby consents to: |
(a) | any and all of the items set out in Schedule 3 (Amendments, waivers, consents and other modifications) of this Agreement; and |
(b) | any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made either to implement the changes envisaged in Schedule 3 (Amendments, waivers, consents and other modifications) of this Agreement or to conform any Finance Document to Schedule 3 (Amendments, waivers, consents and other modifications) of this Agreement; and/or |
(c) | any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Finance Document to be made to conform any Finance Document to any Liberty Global Reference Agreement (provided that any amendment, waiver, consent or modification to conform the Credit Agreement or any other Finance Document to the Liberty Global Reference Agreement referred to at paragraph (iv) of that definition, shall be limited to those that are mechanical in nature unless specifically referenced in Schedule 3 (Amendments, waivers, consents and other modifications) of this Agreement), |
21. | The Additional Facility AL Lender hereby acknowledges and agrees that the Facility Agent may, but shall not be required to, send to the Additional Facility AL Lender any further formal amendment request in connection with all, or any of the proposed amendments set out under Clause 20 above and the Facility Agent shall be authorised to consent on behalf of the Additional Facility AL Lender, as a Lender under one or more Additional Facilities, to any such proposed amendments set out under Clause 20 above, and such consent shall be taken into account in calculating whether the Majority Lenders, or the relevant requisite Lenders, have consented to the relevant amendments and/or waivers or other modifications to the Finance Documents in accordance with Clause 25 (Amendments and Waivers) of the Credit Agreement. |
22. | The Additional Facility AL Lender hereby waives receipt of any fee in connection with the foregoing consent, notwithstanding that other consenting Lenders under the Credit Facility may be paid a fee in consideration of such Lenders’ consent to any or all of the foregoing amendments, waivers or other modifications. |
23. | In the event that the amendments to the Credit Agreement referred to at paragraph 78 (Benefit of Maintenance Covenant) of Schedule 3 (Amendments, waivers, consents and other modifications) become effective in accordance with clauses 20 and 21 above, on and from the Amendment Effective Date the maintenance covenants at Clause 17.2 (Financial ratios) of the Credit Agreement shall not be for the benefit of the Additional Facility AL Lender and the Additional Facility AL Lender acknowledges and agrees that it shall not form part of the “Composite Maintenance Covenant Instructing Group” in respect of its Facility AL Commitment. |
24. | In the event that the Additional Facility AL Lender is eligible or required to vote (or otherwise consent) with respect to any matter (other than the matters specified in Clause 20 above) arising from time to time under the Credit Agreement or this Agreement the Facility Agent will apply the votes of the Additional Facility AL Lender in accordance with a written direction to be provided by the Additional Facility AL Lender or the Trustee (on behalf of the Additional Facility AL Lender). The Additional Facility AL Lender agrees that it will give any such direction in accordance with the provisions of Section 9.01 of the Indenture. For the avoidance of doubt, the Facility Agent may rely on any such directions received and shall have no duty to enquire or monitor as to whether such direction complies with Section 9.01 of the Indenture. |
25. | Each of UPC Broadband and UPC Financing confirms, on behalf of themselves and each other Obligor, that the representations and warranties set out in Clause 15 (Representations and Warranties) of the Credit Agreement (with the exception of Clauses 15.6(a) (Consents), 15.10 (Financial condition), 15.12 (Security Interests), 15.13(b) (Litigation and insolvency proceedings), 15.14 (Business Plan), 15.15 (Tax liabilities), 15.16 (Ownership of assets), 15.18 (Works Council), 15.19 (Borrower Group Structure), 15.20 (ERISA), 15.24 (UPC Financing) and 15.25 (Dutch Banking Act)) are true and correct as if made at the Effective Date with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement. |
26. | UPC Broadband further represents and warrants on the Effective Date that the execution and delivery by it of this Agreement and the performance of the transactions contemplated by this Agreement will not violate any agreement or instrument to which UPC Holding is a party or binding upon UPC Holding or any member of the Borrower Group or any assets of UPC Holding or any member of the Borrower Group’s assets, where such violation would or is reasonably likely to have a Material Adverse Effect. |
27. | The Additional Facility AL Lender confirms to each Finance Party that: |
(a) | it has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Credit Agreement and has not relied on any information provided to it by a Finance Party in connection with any Finance Document; and |
(b) | it will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Credit Agreement or any Additional Facility Commitment is in force. |
28. | The Additional Facility AL Lender agrees to waive the notice period in respect of delivery of drawdown requests under Clause 5.1 (Delivery of Request) of the Credit Agreement in respect of Facility AL. The Additional Facility AL Lender, the Borrower and the Facility Agent acknowledge and agree that (a) the Facility AL Advance shall be made by the Additional Facility AL Lender directly to the Borrower to an account notified by the Borrower to the Additional Facility AL Lender, rather than through the Facility Agent, and (b) in respect of any other payments of principal, interest or other amounts due under Facility AL, (i) the Borrower shall make payments payable by it to the Additional Facility AL Lender directly to the Additional Facility AL Lender (or to such account as the Additional Facility AL Lender may specify), and (ii) the Additional Facility AL Lender shall make payments payable by it to the Borrower directly to the Borrower (or to such account as the Borrower may specify). The Additional Facility AL Lender agrees that it shall promptly notify the Facility Agent if the Borrower fails to make any payment under subclause (b)(i) of this Clause 28 when due, and the Borrower agrees that it shall promptly notify the Facility Agent if the Additional Facility AL Lender fails to make any payment under subclause (b)(ii) of this Clause 28 when due. |
29. | UPC Broadband agrees that it will not request or require the transfer of all of the rights and obligations of the Additional Facility AL Lender pursuant to any provision of the Credit Agreement following the effectiveness of any amendment or amendment and restatement of the Credit Agreement in accordance with Clauses 20 and 21 above. |
30. | The Facility Office and address for notices of the Additional Facility AL Lender for the purposes of Clause 32.2 (Addresses for notices) of the Credit Agreement will be that notified by the Additional Facility AL Lender to the Facility Agent. |
31. | The Facility Agent may provide copies of the Indenture, or disclose its contents, to any Finance Party upon request by that Finance Party. |
32. | This Agreement and any non contractual obligations arising out of or in connection with it are governed by English law. |
33. | This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement. In relation to each counterpart, upon confirmation by or on behalf of the signatory that the signatory authorises the attachment of such counterpart signature page to the final text of this Agreement, such counterpart signature page shall take effect together with such final text as a complete authoritative counterpart. |
34. | For purposes of any assignment, transfer or novation of rights and/or obligations (in whole or in part) by a Lender in respect of Facility AL under Clause 26.2 (Transfers by Lenders) of the Credit Agreement, UPC Broadband hereby consents to any assignment, transfer or novation made by the Additional Facility AL Lender (including any subsequent Lender under Facility AL) following an Event of Default (as defined in the Indenture), provided that any such assignment, transfer or novation in part shall be in a minimum amount of US$200,000. The Additional Facility AL Lender may only deliver to the Facility Agent a completed assignment or transfer document or Novation Certificate (as applicable) if at that time it confirms to the Facility Agent in writing that such assignment, transfer or novation is not prohibited under the terms of any agreement that is binding on it or any of its assets. |
Additional Facility AL Lender | Facility AL Commitment | ||
UPCB Finance IV Limited | $800,000,000 | ||
Total | $800,000,000 |
1. | Constitutional Documents |
(a) | A copy of the constitutional documents of each Obligor (other than UPC Financing) and the partnership agreement of UPC Financing or, if the Facility Agent already has a copy, a certificate of an authorised signatory of the relevant Obligor confirming that the copy in the Facility Agent’s possession is still correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
(b) | An extract of the registration of each Obligor established in the Netherlands in the trade register of the Dutch Chamber of Commerce. |
2. | Authorisations |
(a) | A copy of a resolution of the board of managing and, to the extent applicable, board of supervisory directors (or equivalent) and, to the extent that a shareholders’ resolution is required, a copy of the shareholders’ resolution of each Obligor: |
(i) | approving the terms of and the transactions contemplated by this Agreement and (in the case of UPC Broadband and UPC Financing) resolving that it execute the same (and, in the case of the Guarantors and the Charging Entities (as defined in the Security Deed) resolving that it execute the confirmation described at paragraph 4(a) below; and |
(ii) | (in the case of UPC Broadband and UPC Financing) authorising the issuance of a power of attorney to a specified person or persons to execute this Agreement on its behalf and (in the case of the Guarantors and the Charging Entities (as defined in the Security Deed)) authorising the issuance of a power of attorney to a specified person or persons to execute the confirmation described in paragraph 4(a) below. |
(b) | A specimen of the signature of each person authorised pursuant to its constitutional documents or to the power of attorney referred to in paragraph (a) above to sign this Agreement or the confirmation described in paragraph 4(a) below (as appropriate). |
(c) | A certificate of an authorised signatory of UPC Broadband, each Guarantor and each Charging Entity certifying that each copy document specified in this Schedule and supplied by UPC Broadband, each Guarantor and each Charging Entity is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
(d) | A copy of any other authorisation or other document, opinion or assurance which the Facility Agent has notified UPC Broadband is necessary in connection with the entry into and performance of, and the transactions contemplated by, this Agreement or for the validity and enforceability of this Agreement. |
3. | Legal opinions |
(a) | A legal opinion of Allen & Overy LLP, English legal advisers to the Facility Agent, addressed to the Finance Parties. |
(b) | A legal opinion of Allen & Overy LLP, Dutch legal advisers to the Facility Agent, addressed to the Finance Parties. |
(c) | A legal opinion of Allen & Overy LLP, New York legal advisers to the Facility Agent, addressed to the Finance Parties. |
4. | Other documents |
(a) | Confirmation (in writing) from (i) each of the Guarantors that its obligations under Clause 14 (Guarantee) of the Credit Agreement and (ii) each of the Charging Entities (as defined in the Security Deed) that the Security Interests granted to the Beneficiaries pursuant to the Security Documents and its obligations under the Finance Documents, shall continue unaffected and that such obligations extend to the Total Commitments as increased by the addition of Facility AL and that such obligations shall be owed to each Finance Party including the Additional Facility AL Lender. |
1. | Business: amend the definition of Business to include the provision, creation, distribution and broadcasting of content and any business or provision of services substantially the same or similar to that of any member of the Wider Group on the amendment and restatement date as set out in recent Liberty precedent. |
2. | Cash and Cash Equivalent Investments: amend the definition of Cash and the definition of Cash Equivalent Investments to bring each substantially in line with and/or by reference to clauses and language used in recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market. |
3. | Acceptable Bank: amend the definition of Acceptable Bank such that an acceptable bank has a rating of “BBB+” and “Baa1” respectively. |
4. | Optional Currencies: amend the Credit Agreement to provide that any revolving credit facility commitments may also be utilised in currencies other than euro on the basis set out in recent Liberty precedent which contain a revolving credit facility. |
5. | Revolving Facilities: amend the Credit Agreement to include mechanical provisions in relation to revolving credit facilities on the basis set out in recent Liberty precedent which contain revolving credit facilities for the purposes of facilitating future Additional Facilities that are revolving credit facilities. |
6. | Screen Rate: amend the definition of Screen Rate to provide for the replacement of the British Bankers’ Association by the ICE Benchmark Administration as the administrator of LIBOR and the replacement of the Banking Federation of the European Union by the European Money Markets Institute as the administrator of EURIBOR together with other amendments to the definition of Screen Rate by reference to clauses and language used in recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market. |
7. | Financial Indebtedness: amend the definition of Financial Indebtedness as follows: |
(a) | delete paragraph (e) in relation to deferred payments for assets acquired or services supplied; |
(b) | by excluding the following items from the definition: |
(i) | cash-collateralised indebtedness; |
(ii) | indebtedness in the nature of equity (other than redeemable shares); |
(iii) | any deposits or prepayments received by any member of the Borrower Group from a customer or subscriber for its service; |
(iv) | obligations under finance leases and hire purchase contracts in accordance with recent Liberty precedent; and otherwise exclude obligations in respect of finance leases or capital leases (including by deleting limb (f) of the definition of Financial Indebtedness); |
(v) | any indebtedness in respect of any transactions relating to transfers of receivables (and related assets) to asset securitisation Subsidiaries or by an asset securitisation Subsidiary to any other person, or the grant of security in respect of such receivables or related assets, in connection with any asset securitisation programmes or receivables factoring transactions; |
(vi) | any parallel debt obligations to the extent such obligations mirror other Financial Indebtedness; |
(vii) | any pension obligations; |
(viii) | any obligations to make payments in relation to earn outs; and |
(ix) | any payments for assets acquired or services supplied deferred in accordance with the terms pursuant to which the relevant assets were or are to be acquired or services were or are to be supplied. |
8. | Majority Lenders: amend Clause 1.1 of the Credit Agreement to reduce the fractions specified in the definitions of Majority Lenders, from 66⅔ per cent. or more (for any or all purposes under the Credit Agreement or any other Finance Document (including for the purposes of any Additional Facility)) to more than 50 per cent. and to exclude the available commitments of defaulting lenders for the purposes of amendments or waivers. |
9. | Super Majority Lenders: amend Credit Agreement to provide for a definition of Super Majority Lenders so that amendments and waivers in respect of the release of any guarantee or security only requires the consent of Lenders representing 90 per cent. of Commitments. |
10. | Mandatory Costs: delete all references in the Credit Agreement and each Additional Facility Accession Agreement to Mandatory Costs and any related provisions. |
11. | Increase: amend Clause 2 (Facilities) to provide for the ability to increase Commitments under a Facility by increasing a Lender’s Commitments with that Lender’s consent or by including new Commitments of any bank, financial institution, trust, fund or any other entity selected by UPC Broadband, including (but without limitation) the ability to increase the Commitments in an amount equal to the amount of any commitments cancelled as a result of (i) illegality, or (ii) Commitments cancelled as a result of the relevant Lender becoming a defaulting lender. Amend to permit the Borrower to pay a fee to any increase Lender. |
12. | Additional Facilities: amend paragraph (c) of Clause 2.2 (Additional Facilities) so that Additional Facilities can be revolving credit facilities. |
13. | Documentary Credits: amend the Credit Agreement to permit utilisation of any Additional Facility that is a revolving credit facility by way of letters of credit, bank guarantees, indemnity, performance bonds and other documentary credits and include all consequential mechanical provisions to support the same, in each case in accordance with recent Liberty precedent. |
14. | Ancillary Facilities: amend the Credit Agreement to provide for an ability to incur bilateral ancillary lines with a Lender (with the consent of that Lender) as a carve-out to the Commitments under any Additional Facility that is a revolving credit facility and include all consequential mechanical provisions to support the same. |
15. | Rollover Loans: |
(a) | amend the Credit Agreement to clarify that, to the extent that a Borrower is due to repay (in full or in part) a revolving credit facility Advance on the same day on which such Borrower has also requested a revolving credit facility Advance in the same currency and in the same or a lesser amount, a rollover of such revolving credit facility Advance shall be effected on a cashless basis in accordance with recent Liberty precedent and to make consequential amendments to the Credit Agreement in accordance with recent Liberty precedent to reflect consistent rollover Advance provisions; and |
16. | Change of Control: amend the Credit Agreement or any other Finance Document to revise the change of control provisions in Clause 7.4 (Change of Control) of the Credit Agreement as follows: |
(a) | delete Clause 7.4(a)(i) of the Credit Agreement; |
(b) | in Clause 7.4(a)(ii) of the Credit Agreement: |
(i) | replace all references to "UGCE Inc." with "Liberty Global Europe Financing BV"; and |
(ii) | delete the words "and economic"; and |
(iii) | permit the distribution or other transfer of UPC Broadband Holdco and its Subsidiaries or a Holding Company of UPC Broadband Holdco to Liberty Global plc (the Ultimate Parent) or another direct Subsidiary of the Ultimate Parent through one or more mergers, transfers, consolidations or other similar transactions (the Reorganization), without the Reorganization being deemed to trigger a Change of Control and, upon such Reorganization, the Change of Control reference entity referred to in Clause 7.4(a)(ii) of the Credit Agreement will be replaced with the Ultimate Parent (or, if the distribution or other transfer |
(c) | amend Clause 7.4 (Change of Control) to extend the requirement to repay so that it falls 30 Business Days after the date of the notice from the Facility Agent and amend such Clause and the definition of Change of Control to reflect recent Liberty precedent, including the ability to effect a post-closing reorganization and a spin-off without triggering a mandatory prepayment thereunder. |
17. | Cancellation: amend Clause 7.9 (Right of repayment and cancellation in relation to a single Lender) (i) to provide for the transfer in full and at par (in addition to the right of repayment and cancellation) of the Commitment and participation in a utilisation of a single Lender to another Lender; and (ii) to provide that the right to repay, cancel or transfer also arises in respect of a Lender’s Commitment or participation in a utilisation where that Lender invokes the market disruption clause, such right to be exercisable subject to the same conditions as recent Liberty precedent. |
18. | Notice of Prepayment or Cancellation: amend Clause 7.10 (Miscellaneous provisions) to provide that a notice of prepayment or cancellation may be conditional and be revoked provided that a Borrower has, within 10 Business Days, indemnified any Lender in respect of such Lender’s Break Costs if the prepayment or cancellation does not occur as notified and the notice period can be reduced with the consent of the Majority Lenders under the relevant Facility. The definition of Break Costs will be amended to include a Lender’s losses as a result of having to unwind any related funding contract (which it had entered into or initiated upon receipt of such notice) as a result of the revocation of a notice of prepayment or cancellation. |
19. | Interest on Additional Facilities: amend Clause 8.2 (Selection of Interest Periods) to permit interest periods to be any period from 1, 2, 3 or 6 months or such other period of up to 12 months for all Advances as the Majority Lenders under the relevant Facility may agree and in addition and for Advances under a revolving credit facility only, any period between 1 day and 30 days. |
20. | Mandatory Prepayment from Excess Cash Flow and Relevant Convertible Preference Shares: delete Clause 7.5 (Mandatory Prepayment from Excess Cash Flow and Relevant Convertible Preference Shares) and make all necessary amendments to the Credit Agreement that are consequential and required by such deletion. |
21. | Mandatory Prepayment from Disposals Proceeds: amend Clause 7.6 (Mandatory Prepayment from disposal proceeds) and 7.7 (Date for prepayment) to require prepayment of disposal proceeds only to the extent required to ensure compliance with the Senior Debt to Annualised EBITDA maintenance financial covenant, exclude any proceeds from any other Permitted Disposal other than the general Permitted Disposals basket, remove the requirement to transfer disposal proceeds to a blocked account pending reinvestment, include a de minimis threshold of the greater of €250,000,000 and 5% of total assets and increase the reinvestment period from 12 months to 18 months (provided the disposal proceeds have been contracted to be reinvested within 12 months of the relevant Permitted Disposal) (and subject to the proviso that the financial covenant discussed above shall be retested at the end of such period and proceeds shall then be prepaid to the extent required to ensure compliance in line with recent Liberty precedent). |
22. | Increased Costs: amend Clause 12.3 (Exceptions) to include: |
(c) | costs attributable to gross negligence or wilful breach by a Finance Party; |
(d) | costs not notified within 30 days of a Finance Party becoming aware; |
(e) | FATCA deductions; and |
(f) | Bank Levies to the extent not more onerous than existing actual or draft laws (as applicable). |
23. | Tax: amend Clause 10 (Tax Gross-Up and Indemnities) to provide that the Finance Parties and the Borrower shall cooperate in good faith to complete any procedural steps to allow the Borrower to make payments without or with a reduced rate of withholding or deduction for taxes and each Finance Party will provide information requested by the Borrower in order for the Borrower to be exempt from withholding or deduction for any taxes under any applicable international treaty and in connection with FATCA and any applicable reporting requirements under FATCA in each case, in accordance with recent Liberty precedent. The Borrower will not be liable under any tax gross up or tax indemnity provisions in respect of any FATCA deductions other than in respect of any payments due to an SPV lender that has issued notes and advanced the proceeds of such notes to a member of the Borrower Group under an Additional Facility (provided that no gross up or indemnity shall be required for a FATCA deduction where such FATCA deduction arises from any non-compliance by a holder of such notes). Each Finance Party will be obliged to act reasonably and in good faith in making any determination for the purpose of Clause 10 (Tax Gross-Up and Indemnities). |
24. | VAT: amend Clause 10.6 (Value Added Tax) to (i) provide that no Party shall exercise any potential option for waiving a VAT exemption, (ii) provide that no payment shall be required from an Obligor to a Finance Party if the relevant VAT charge is caused by that Finance Party’s option to waive a VAT exemption and (iii) conform it such that it is consistent with any VAT provisions in recent Liberty precedent. |
25. | Market Disruption: amend the Credit Agreement to include market disruption provisions, provisions in relation to alternative interest rates and provisions for the protection of reference banks and their officers in accordance with recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market. |
26. | Borrower Group: amend the definition of Borrower Group to exclude, dormant subsidiaries that are not guarantors, project companies (as defined in accordance with recent Liberty precedent), asset securitisation subsidiaries (as defined in accordance with recent Liberty precedent) and entities that become subsidiaries as a result of an asset passthrough (as defined in accordance with recent Liberty precedent). |
27. | Permitted Affiliate Parent: amend the Credit Agreement in line with recent Liberty precedent to provide an ability to acquire Affiliates that are not Subsidiaries of UPC Broadband but are Subsidiaries of another Affiliate common holding company that is not a member of the Borrower Group (the holding entity of the acquired group being the “Permitted Affiliate Parent”) and to allow conforming changes including the ability to designate (subject to certain deliverables in accordance with recent Liberty precedent) any new holding company as the common holding company of the Borrower Group for the purposes of, amongst other things, the definitions of Change of Control, Restricted Payments and Permitted Payments, in each case, in accordance with recent Liberty precedent and for the purpose of reflecting a similar structure which supports |
28. | Representations: remove Clause 15.14 (Business Plan), paragraph (c) of Clause 15.11 (Environmental) Clause 15.7 (Material Contracts), paragraph (b) of Clause 15.8 (No Default), Clause 15.18 (Works councils), Clause 15.25 (Dutch Banking Act) and Clause 15.27 (Public Utility Holding Company Act and Federal Power Act) and amend Clause 15.28 (Times for making representations and warranties) to exclude Clauses 15.5 (Non-violation) 15.8 (No default) 15.6 (Consents) 15.11 (Environmental), 15.21 (United States Regulations) and 15.22 (Anti-Terrorism Laws) from the representations and warranties deemed repeated under that clause. |
29. | Undertakings: |
(a) | amend Clause 16.2 (Financial information) to provide that to the extent financial statements are filed on a public register or published on the Borrower’s or Liberty Global plc’s website they shall be deemed supplied to the Facility Agent; |
(b) | amend Clause 16.3 (Information – miscellaneous) to provide for delivery of information by the Borrower to the Lenders (who have not objected) by posting to a designated website or email address of each Lender; |
(c) | amend Clause 27 (Disclosure of Information) (i) to create a confidentiality obligation on the finance parties which applies to information of any member of the Borrower Group; (ii) to survive 12 months from the earlier of the date the Commitments have been repaid or cancelled in full and (in respect of that Finance Party only) the date a Finance Party resigns; and (iii) to reflect such clauses and language used in recent Liberty precedent as the company considers beneficial; and |
(d) | include new confidentiality provisions in relation to funding rates and reference bank quotations in accordance with recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market. |
30. | Financial Ratios: |
(a) | amend the definition of EBITDA to provide that the starting point for EBITDA may be operating income and include the following limbs as add backs: |
(i) | depreciation; |
(ii) | amortisation; |
(iii) | all stock-based compensation expenses; |
(iv) | (at the Parent’s option) other non-cash impairment charges; |
(v) | any extraordinary, one-off, non-recurring, exceptional or unusual gain, loss, expense or charge including any one-off reorganization or restructuring charges; |
(vi) | non-cash charges; |
(vii) | direct or related acquisition, disposal, recapitalization, debt incurrence or equity offering costs; |
(viii) | losses (gains) on the sale of operating assets; |
(ix) | (at the Parent’s option) the effects of adjustments under IFRS or GAAP attributable to the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to any consummated merger or acquisition or joint venture investment or the amortisation or write-off or write-down of amounts thereof, net of taxes; |
(x) | (at the Parent’s option) any adjustments to reduce the impact of the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies; |
(xi) | any specified legal expenses (and include a definition as per recent Liberty precedent); |
(xii) | any stock based compensation exercise; |
(xiii) | the amount of loss on the sale of any assets in connection with asset securitisation programme or receivables factoring transaction; |
(xiv) | any accrued management fees (and include a definition as per recent Liberty precedent) (whether or not paid) and any permitted holding company expenses; |
(xv) | any net earnings or losses attributable to non-controlling interests; |
(xvi) | any share of income or loss on equity investments; |
(xvii) | deferred financing cost written off and premiums paid to extinguish debt early; |
(xviii) | unrealised gains/losses in respect of hedging; |
(xix) | tangible or intangible asset impairment charges; |
(xx) | capitalised interest on Subordinated Shareholder Loans; |
(xxi) | accruals and reserves established or adjusted within twelve months after the closing date of any acquisition required to be established or adjusted in accordance with GAAP; |
(xxii) | any expense to the extent covered by insurance or indemnity and actually reimbursed; |
(xxiii) | any realized and unrealized gains and losses due to changes in the fair value of equity investments, any up front installation fees associated with commercial contract installations completed during the applicable reporting period (less any portion of such fees included in earnings); |
(xxiv) | any fees of other amounts charged or credited to UPC Broadband and the guarantors related to intra-Group services may be excluded to the extent such fees or other amounts (i) are not included in UPC Broadband’s externally reported operating cash flow or equivalent measure or (ii) are deemed to be exceptional or unusual items; |
(xxv) | to the extent not already included in operating income, the amount received from business interruption insurance and reimbursements of any expenses covered by indemnification or other reimbursement in connection with a permitted acquisition, investment or disposal of assets; |
(xxvi) | earn out payments to the extent such payments are treated as capital payments under the accounting principles; and |
(xxvii) | realised gains (losses) (to the extent not already included) arising out of the maturity or on termination of forward foreign exchange or other currency hedging contracts entered into with respect to operational cash flows, |
(b) | amend the definition of Senior Debt so that it starts with the consolidated Financial Indebtedness of the Borrower Group and excludes: |
(i) | intra-group borrowings; |
(ii) | shareholder loans subordinated under the term of the existing Security Deed or under any intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably); |
(iii) | borrowings represented by deposits or prepayments from subscribers/customers; |
(iv) | borrowings of acquired companies that will be discharged within 6 months; |
(v) | for the avoidance of doubt Financial Indebtedness arising by reason of mark-to-market fluctuations on hedging; |
(vi) | borrowings from the holders of equity to the extent advanced pro rata and repayable only on liquidation; |
(vii) | in respect of drawings under any Revolving Facility at the relevant time up to an amount of 0.25 multiplied by Annualised EBITDA for that latest Ratio Period (the “Revolving Facility Excluded Amount”); |
(viii) | Financial Indebtedness of a member of the Borrower Group under which the person to whom the Financial Indebtedness is owed does not have or will not have recourse to any member of the Borrower Group other than recoveries made on enforcement and such person is not entitled to commence proceedings for the winding up of any member of the Borrower Group until after the Commitments have been reduced to zero and all amounts owing under the Finance Documents have been repaid in full; and |
(ix) | Financial Indebtedness in respect of any contingent obligations. |
31. | Senior Debt to Annualised EDITDA: amend Clause 17.2(a) (Financial Ratios) such that the Senior Debt to Annualised EBITDA financial ratio may not be greater than 4.50:1.00 for each Ratio Period. |
32. | Interest Cover Covenant: remove the requirement for UPC Broadband to ensure that the ratio of EBITDA to Total Cash Interest is not less than certain ratios for each Ratio Period contained in Clause 17.2(b) (Financial Ratios) and remove any other references to such ratio. |
33. | EBITDA to Senior Debt Service Covenant: remove the EBITDA to Senior Debt Service covenant set out in Clause 17.2(c) (Financial Ratios) and remove any other references to such ratio. |
34. | EBITDA to Senior Interest Covenant: remove the EBITDA to Senior Interest covenant set out in Clause 17.2(d) (Financial Ratios) and remove any other references to such ratio. |
35. | Total Debt to Annualised EDITDA: amend Clause 17.2(e) (Financial Ratios) such that the Total Debt to Annualised EBITDA financial ratio may not be greater than 5.50:1.00 for each Ratio Period. |
36. | Pro forma EBITDA: amend Clause 17.3 (Calculations), so that, for the purposes of testing compliance with the financial ratios set out in Clause 18 (Financial Covenants) or in calculating EBITDA in connection with any transaction, investment, acquisition, disposition, restructuring, corporate reorganization or otherwise: |
(a) | the calculations are determined in good faith by a responsible financial or accounting officer and are made on a pro forma basis giving effect to all material acquisitions and disposals made by the Borrower Group (including in respect of anticipated expense and cost reductions) and including as a result of, or that would result from, any actions taken, committed to be taken or with respect to which substantial steps have been taken, by UPC Broadband or any other member of the Borrower Group including in connection with any cost reduction synergies or cost savings plan or program or in connection with any transaction, investment, acquisition, disposition, restructuring, corporate reorganizations or otherwise (regardless of whether these cost savings and cost reduction synergies could then be reflected in pro forma financial statements to the extent prepared); |
(b) | EBITDA for the relevant period will be calculated after giving pro forma effect thereto as if any incurrence, repayment, acquisition, discharge or disposal or acquisition occurred on the first day of such period; and |
(c) | interest on any indebtedness that bears interest at a floating rate and that is being given pro forma effect shall be calculated as if the rate in effect on the date of calculation had been applicable for the entire period (taking into account any hedging in respect of such indebtedness). |
37. | Equity Cures: amend Clause 17.4 (Cure provisions): |
(a) | so that the financial ratios set out in Clause 17 (Financial Covenants) may be remedied by deeming that such cure proceeds are (as applicable): |
(i) | added to Annualised EBITDA; or |
(ii) | applied to reduce Senior Debt and/or Total Debt, as applicable, |
(b) | to remove the requirement to repay or prepay the cure proceeds against any of the Facilities or Advances and to clarify that there is no requirement to repay or prepay all or any part of the Facilities or any Advances or to use the proceeds for any particular purpose; and |
(c) | so that an equity cure may be effected up to 15 Business Days following the delivery of the financial statements which showed a breach. |
38. | Additional Obligors: amend Clause 26.4 (Additional Obligors) to remove the obligation at sub-paragraph (b)(ii). |
39. | Additional Borrowers: amend paragraph (c) of Clause 26.4 (Additional Obligors) to provide that any member of the Borrower Group may become a Borrower in respect of a Facility if (i) it would not be materially adverse to the interests of any Lender under that Facility as determined by each such Lender (acting reasonably), (ii) the Majority Lenders consent, (iii) such member of the Borrower Group is incorporated in the same jurisdiction as an existing Borrower under that Facility or (iv) each Lender in respect of any proposed Additional Facility agrees. |
40. | Accounting Principles: amend, amongst other provisions, Clauses 15.9 (Accounts) and Clause 17.5 (Determinations) to permit UPC Broadband to elect (and to re-elect) to prepare its financial statements in accordance with IFRS or US GAAP; and adjust its financial covenants and definitions accordingly, or retain its existing financial covenants and definitions in each case in accordance with recent Liberty precedent (including provision of a reconciliation where applicable) provided that following any election to revert back to US GAAP the ratios, definitions and financial covenant levels in existence at the original date of the Credit Agreement (updated to reflect any other amendments made since the original date of the Credit Agreement) shall be automatically reinstated. |
41. | Asset Securitisation Subsidiary: amend the Credit Agreement, as per recent Liberty precedent, to permit, amongst other things, acquisitions, disposals and investments in respect of asset securitisation subsidiaries and also to include (i) an ability for one or more members of the Borrower Group to provide limited recourse credit support by way of letter of credit, revolving facility commitment, guarantee or other credit enhancement up to a maximum amount of 25% of the principal amount of the indebtedness of an asset securitisation subsidiary (and such credit enhancement shall not count as Financial Indebtedness), (ii) the following as Permitted Security Interests: rights of set-off granted to any financial institution acting as a lockbox bank in connection with any asset securitisation programme or a receivables factoring transaction, security interests for the purpose of perfecting the ownership interests of a purchaser of receivables and related assets pursuant to any asset securitisation programme or a receivables factoring transaction, cash deposits or other security interests for the purposes of securing the limited recourse credit support at (i) above, security interests over investments in asset securitisation subsidiaries and liens arising in connection with other sales of receivables permitted under the Credit Agreement without recourse to the Borrower Group and (iii) an ability to make investments in cash in or to invest in indebtedness of asset securitisation subsidiaries. An asset |
42. | Permitted Disposals: |
(a) | amend the definition of Permitted Disposal at Clause 16.10(b) (Disposals) to include in addition to the existing “Permitted Disposals”: |
(i) | a payment required to be made under the senior secured finance documents; |
(ii) | disposals of property or other assets on bona fide arm’s length commercial terms in the ordinary course of business in consideration for, or to the extent that contractual arrangements are in place within 12 months of such disposals and the proceeds of that disposal are applied within 18 months after such disposal in the acquisition of property or other assets of a similar nature and approximately equal value to be used in the Business of the Borrower Group; |
(iii) | disposals by one member of the Borrower Group to another member of the Borrower Group provided that, if such assets subject to the disposal are subject to existing security, the Borrower within 15 Business Days of such disposal ensures that the assets remain subject to security; |
(iv) | disposals of any interest in real or heritable property by way of a lease or licence granted by a member of the Borrower Group to another member of the Borrower Group; |
(v) | disposals of any assets pursuant to the implementation of an Asset Passthrough (as such term is defined in recent Liberty precedent) or of any funds received pursuant to the implementation of a Funding Passthrough (as such term is defined in recent Liberty precedent); |
(vi) | disposals of property or other assets required to satisfy any pension plan contribution liabilities; |
(vii) | disposals of accounts receivable on arms’ length terms pursuant to an asset securitisation programme or receivables factoring transactions (recourse and non-recourse), provided that the aggregate amount of all such securitisations or receivables factoring transactions does not exceed the greater of €250,000,000 and 5% of Total Assets at any time; |
(viii) | disposals of shares or other interests in project companies, entities excluded from the Borrower Group which are subsidiaries of UPC Broadband or joint venture companies (each as defined in recent Liberty precedent) or the assignment of any Financial Indebtedness owed to a member of the Borrower Group by any project companies, entities excluded from the Borrower Group which are subsidiaries of UPC Broadband or a joint venture company; |
(ix) | disposals of accounts receivables which have remained due and owing from a third party for a period of more than 90 days and in respect of which the relevant mem |
(x) | disposals of assets subject to finance or capital leases pursuant to the exercise of an option by the lessee under such finance or capital leases; |
(xi) | disposals of assets in exchange for the receipt of assets of a similar or comparable value provided that where the assets being disposed of and replaced exceed a book value of €50,000,000, a certificate signed by an authorised signatory of UPC Broadband is delivered to the Facility Agent certifying (without personal liability) that the assets being received by the relevant member of the Borrower Group are of a similar or comparable value to the assets being disposed of; |
(xii) | disposals constituting the surrender of tax losses by any member of the Borrower Group (i) to another member of the Borrower Group, (ii) to any member of the Wider Group where the surrendering company receives fair market value for such tax losses from the relevant recipient, and (iii) in order to eliminate, satisfy or discharge any Tax liability of a former member of the Wider Group which has been disposed of in accordance with the terms of the Credit Agreement where a member of the Borrower Group would incur a liability if the Tax liability were not so eliminated, satisfied or discharged; |
(xiii) | disposals of assets to and sharing assets with any person who is providing services the provision of which have been or are to be outsourced to that person by any member of the Borrower Group subject to certain conditions reflected as set out in recent Liberty precedent and where the value of those assets does not exceed 5% of Bank Group Consolidated Revenues (as defined in recent Liberty precedent and subject to a carry forward to the following year); |
(xiv) | disposals of assets pursuant to sale and leaseback transactions where the aggregate fair market value does not exceed the greater of €250,000,000 and 5% of total assets in any financial year; |
(xv) | disposals of non-core assets acquired in connection with a transaction permitted under Clause 16.11 (Acquisitions and Mergers); |
(xvi) | disposals in connection with any sale , transfer, demerger, contribution, spin off or distribution of, any creation or participation in a joint venture and/or entering into a transaction or taking action with respect to, any assets, undertakings and/or businesses of the Borrower Group which compromise all or part of a business division within or outside of the Borrower Group, in each case, where such transaction has the prior approval of the Majority Lenders; |
(xvii) | disposals constituted by licences of intellectual property rights permitted by Clause 16.18 (Intellectual Property Rights); |
(xviii) | disposals of assets made pursuant to the establishment of a Permitted Join Venture or the disposal of assets to a Permitted Joint Venture; |
(xix) | disposals made in relation to a compulsory purchase order or any other order of any agency of state, authority or other regulatory body not exceeding €25,000,000 in any financial year; |
(xx) | disposals by any member of the Borrower Group of customer premises equipment to a customer; |
(xxi) | disposals of assets on arm’s length commercial terms where the cash proceeds of the disposal are reinvested within 12 months of the date of the disposal (or 18 months of the date of the disposal if, within 12 months, the proceeds are contractually committed to be so applied); |
(xxii) | disposal of real property if the fair market value in any financial year does not exceed the greater of €250,000,000 and 5% of total assets; |
(xxiii) | direct or indirect sale (or otherwise) of any part of a present or future undertaking, shares, property, rights or remedies or other assets by one or a series of transactions, related or not, required by a regulatory authority or court of competent jurisdiction; and |
(xxiv) | disposals of assets where the aggregate fair market value does not exceed the greater of €50,000,000 and 1% of total assets in any financial year; and |
(b) | a new paragraph (e) at Clause 16.10 such that if a transaction (or any portion) meets the criteria of a Permitted Disposal and also meets the criteria of a Permitted Payment, the Borrower, in its sole discretion, will be entitled to divide and classify such transaction (or any portion) as a disposal permitted under Paragraph (b) of Clause 16.10 (Disposals) and/or a Restricted Payment permitted under Clause 16.13 (Restricted Payments) in accordance with recent Liberty precedent. |
43. | Asset Passthrough and Funding Passthrough: amend, amongst others, Clauses 16.10 (Disposals), 16.11 (Acquisitions and mergers), 16.12 (Restrictions on Financial Indebtedness), 16.13 (Restricted Payments) and 16.14 (Loans and Guarantees) and any related definitions to permit, as per recent Liberty precedent, (i) asset transfers between a holding company of a Borrower outside of the Borrower Group and/or any other members of the wider Liberty group (excluding members of the Borrower Group) where such assets pass through one or more members of the Borrower Group before being finally transferred to the relevant holding company or wider Liberty group member (as applicable), subject to certain restrictions and (ii) funding transfers between a holding company of a Borrower outside of the Borrower Group and/or any other members of the wider Liberty group (excluding members of the Borrower Group) where funding is passed through one or more members of the Borrower Group before being finally being transferred to the relevant holding company or wider Liberty group member (as applicable), subject to certain restrictions. |
44. | Project Companies: amend the Credit Agreement to permit, as per recent Liberty precedent, amongst other things (a) the disposal of shares or other interests (including shareholder loans) in any special purpose company or its holding company whose creditors have no recourse to any member of the Borrower Group (except to the extent of any security granted over such shares or other interests) and (b) the grant of security over the shares or other interests in, or the assets of, such special purpose company (or its holding company). |
45. | Content Transactions: amend the Credit Agreement, as per recent Liberty precedent, such that, amongst other things: |
(a) | an amount (being the greater of €250,000,000 and 5% of total assets) of net proceeds are not required to be prepaid against the Facilities in mandatory prepayment; and |
(b) | payments (being up to the greater of €250,000,000 and 5% of total assets) in respect thereof will constitute Permitted Payments, |
46. | Permitted Acquisitions: amend the Permitted Acquisitions definition to include in addition to the existing “Permitted Acquisitions”: |
(a) | the purchase of or investment in Cash Equivalent Investments or marketable securities (as defined in recent Liberty precedent) (including by way of consideration in respect of any disposal as contemplated in Clause 16.10 (Disposals)); |
(a) | the incorporation of a company or the acquisition of an “off-the-shelf” company which is or becomes a member of the Borrower Group; |
(b) | any acquisition by any member of the Borrower Group in connection with a disposal permitted under Clause 16.10 (Disposals) and any acquisition by a member of the Borrower Group of shares issued in a Subsidiary of UPC Broadband or a subsidiary of any Permitted Affiliate Parent (as such term is defined in recent Liberty precedent) which in any case is a member of the Borrower Group and which will, after the acquisition of such shares, become a wholly-owned direct or indirect Subsidiary of UPC Broadband or a subsidiary of any Permitted Affiliate Parent as the case may be, provided that if the other shares of such Subsidiary are subject to existing Security Interests such newly issued shares shall also be subject to any existing Security Interest within 10 Business Days of their issue; |
(c) | any acquisition made by a member of the Borrower Group pursuant to the implementation of an asset passthrough or a funding passthrough; |
(d) | any acquisition by a member of the Borrower Group of any loan receivable security or other asset by way of capital contribution or in consideration of the issue of any securities or of subordinated debt; |
(e) | the acquisition of any leasehold interest in any assets which are the subject of a sale and lease back permitted under Clause 16.10 (Disposals); |
(f) | arising from the conversion of any company (the “Original Company”) from one form of organisation to another form of organisation provided that (i) if, prior to the time of such conversion, the Security Agent has the benefit of security over the shares of such Original Company or such Original Company is an Obligor, then UPC Broadband shall ensure that the Security Agent is provided with Security Interests over the equivalent ownership interests in, and substantially all of the assets of, the converted organisation |
(g) | investments in any asset securitisation subsidiary in connection with any asset securitisation programme or receivables factoring transaction otherwise permitted by Clause 16.10 (Disposals) that is reasonably necessary or advisable to effect such asset securitisation programme or receivables factoring programme; |
(h) | an amendment to increase the de minimis threshold on Majority Acquisitions to refer to €250,000,000 as the threshold amount rather than €40,000,000 and to extend the period of time for UPC Broadband to deliver a certificate in respect of such Majority Acquisition to the Facility Agent from 15 to 60 days; |
(i) | in respect of Majority Acquisitions, to delete any requirement to provide a business plan, acquisition business plan, or other financial projections subject however to retention of a requirement to certify pro forma compliance with the ratio of Senior Debt to Annualised EBITDA and being less than or equal to 4.50:1.00; increase time period for deliverables to within 60 days of the acquisition; provide that any certificate required may be signed by an authorized officer of the Borrower; and make such other conforming changes required to bring in line with recent Liberty precedent. |
(j) | any acquisition of share capital of any existing member of the Borrower Group provided that if any share capital in such member of the Borrower Group is subject to existing Security Interests such acquired share capital shall also be subject to a Security Interest within 10 Business Days; |
(k) | any purchase or acquisition of assets in the ordinary course of business; and |
(l) | acquisitions which are not otherwise permitted under the definition of Permitted Acquisitions provided that the aggregate consideration paid in respect of such acquisitions does not exceed 300,000,000. |
47. | Permitted Joint Ventures: amend the Permitted Joint Venture provisions to, in addition to the existing “Permitted Joint Ventures”: |
(a) | increase the de minimis threshold on JV Minority Acquisitions to refer to €250,000,000 as the threshold amount rather than €40,000,000 and to extend the period of time for UPC Broadband to deliver a certificate in respect of such JV Minority Acquisitions to the Facility Agent from 15 to 60 days; and |
(b) | delete any requirement to provide a business plan, acquisition business plan, or other financial projections subject however to retention of a requirement to certify pro forma compliance with the ratio of Senior Debt to Annualised EBITDA and being less than or equal to 4.50:1.00; increase time period for deliverables to within 60 days of the acquisition; provide that any certificate required may be signed by an authorized officer of the Borrower; and make such other conforming changes required to bring in line with recent Liberty precedent. |
48. | Permitted Financial Indebtedness: amend the definition of Permitted Financial Indebtedness to, in addition to the existing “Permitted Financial Indebtedness”: |
(a) | permit any Financial Indebtedness arising in relation to either an asset passthrough or a funding passthrough; |
(b) | permit vendor financing arrangements and sale and leaseback transactions provided that the pro forma Senior Debt to Annualised EBITDA is equal to or less than, 4.50:1.00 provided that the vendor financing provider or lessor is not permitted to benefit from any Security Interest other than the assets subject to such financing arrangements; |
(c) | permit members of the Borrower Group to give subordinated unsecured guarantees in respect of any debt issued by a Holding Company of UPC Broadband in accordance with recent Liberty precedent subject to the terms of an intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably); |
(d) | permit any Financial Indebtedness arising in respect of any performance bond, guarantee, standby letter of credit or similar facility entered into by any member of the Borrower Group to the extent that cash is deposited as security for the obligations of such member of the Borrower Group thereunder; |
(e) | permit Financial Indebtedness of asset securitisation subsidiaries (as described above) incurred solely to finance any asset securitisation programme or receivables factoring transaction otherwise permitted under the definition of Permitted Disposals; |
(f) | permit Financial Indebtedness arising under tax-related financings designated in good faith as such by prior written notice from the Borrower to the Facility Agent provided that such indebtedness does not exceed €250,000,000 at any time; |
(g) | permit Financial Indebtedness which is incurred by an Obligor provided that (after the incurrence of such indebtedness) on the quarterly Accounting Period prior to such incurrence the ratios contained within Clause 17.2 (Financial Ratios) are not exceeded or breached, calculated on a pro forma basis, and provided further that the Financial Indebtedness is subject to the terms of an intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably); |
(h) | permit Financial Indebtedness in connection with Senior Secured Notes (as such term is defined in recent Liberty precedent) and any guarantee in respect of any Senior Secured Notes given by a member of the Borrower Group which is an Obligor subject to the terms of an intercreditor agreement, on terms satisfactory to the Facility Agent (acting reasonably); |
(i) | include a provision such that if that Financial Indebtedness meets the criteria of more than one of the types of Permitted Financial Indebtedness in the definition of Permitted Financial Indebtedness, UPC Broadband, in its sole discretion, may classify such item of Financial Indebtedness on the date of its incurrence and shall only be required to include the amount and type of such Financial Indebtedness in one of the limbs of that definition and will be permitted on the date of such incurrence to divide and classify an item of such Financial Indebtedness in more than one of such limbs, and, from time to time, may reclassify all or a portion of such Financial Indebtedness; |
(j) | at Clause 16.12(b)(xi), delete the requirements that such Financial Indebtedness was not incurred in contemplation of the acquisition and that it is discharged within 6 months of the date of completion of the acquisition; and |
(k) | at Clause 16.12(b)(xvii), permit any member of the Borrower Group to incur Financial Indebtedness under this general basket of up to an aggregate of the greater of €250,000,000 and 5% of total assets. |
49. | Permitted Transaction: include a definition of “Permitted Transaction” and make consequential amendments to the Credit Agreement to ensure the following are permitted by the covenants in accordance with recent Liberty precedent: |
(a) | transactions conducted in the ordinary course of trading on arm’s length terms (other than (i) any sale, lease, licence, transfer or other disposal and (ii) the granting or creation of any Security Interest or the incurring or permitting to subsist of Financial Indebtedness); |
(b) | a post-closing reorganisation and spin offs in line with recent Liberty precedent; |
(c) | any other transaction approved by the Majority Lenders; and |
(d) | the solvent liquidation or reorganisation of any member of the Borrower Group which is not an Obligor so long as distributions are made to other members of the Borrower Group. |
50. | New Notes Issuances and Additional Senior Secured Debt: amend the Finance Documents to provide that (subject to certain protections such that creditors of the new indebtedness are not structurally senior to the Lenders) any member of the Borrower Group (including a newly incorporated company which is a member of the Borrower Group) may issue notes and incur additional term or revolving debt or operational expenditure facilities which rank pari passu with the rights of the Lenders and shall be capable of being secured by the transaction security and provided that the proceeds of such debt may be used to, amongst other things, refinance the Additional Facilities and for general working capital or operational purposes provided that (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) such Financial Indebtedness is Permitted Financial Indebtedness. |
51. | Permitted Business: delete the definition of Permitted Business so that there are no geographic restrictions and delete Clause 16.8 (Permitted Business) and replace it with a clause that provides that no member of the Borrower Group shall, without the prior written consent of the Majority Lenders or save as otherwise permitted by the terms of this Agreement, make any change in the nature of its business as carried on immediately prior to the date of the amendment and restatement, which would give rise to a substantial change in the business of the Borrower Group taken as a whole from that set forth in the definition of Business, provided that such clause shall not be breached by an Obligor or any member of the Borrower Group making a permitted disposal, a permitted acquisition or investment or entering into any permitted joint venture, in line with recent Liberty precedent. |
52. | Permitted Payments: |
(a) | amend the definition of Permitted Payment to include in addition to the existing “Permitted Payments”: |
(i) | a de minimis threshold of €5,000,000 under which the restrictions on entering into transactions with a Restricted Person in Clause 16.13 (Restricted Payments) will not apply; |
(ii) | payments in respect of a Permitted Acquisition or a Permitted Disposal; |
(iii) | paragraph (b) of the definition containing a carve out for management fees to be amended to refer to the greater of €50,000,000 and 1% of total assets of the Borrower Group in any financial year; |
(iv) | payments to the extent required to pay subordinated notes trustee amounts; |
(v) | following the occurrence of an Event of Default, payments to the extent required to fund Permitted Payments not otherwise prohibited under the Intercreditor Agreement as amended from time to time; |
(vi) | payments to the extent such distribution, dividend, transfer of assets, loan or other payment is in respect of a nominal amount; |
(vii) | payments made directly by means of discounts with respect to any participation interest issued or sold in connection with an asset securitisation programme or receivables factoring transaction which is otherwise permitted under the Credit Agreement; |
(viii) | payments or distributions or the repayment of a loan or redeemable equity made pursuant to an Asset Passthrough or a Funding Passthrough, in each case, funded from cash generated by entities outside of the Borrower Group; |
(ix) | payments or distributions, or the repayment of a loan, or the redemption of loan stock or redeemable equity made to any member of the Wider Group (other than a member of the Borrower Group) provided that (i) an amount equal to such payment is reinvested by such member of the Wider Group (other than a member of the Borrower Group) into a member of the Borrower Group within three days of receipt thereof; (ii) the total amount of such payments and reinvested amounts does not exceed €300,000,000 and (iii) where such payments are made in cash, any reinvested amounts are also made in cash provided that reinvested amounts shall be in the form of subordinated debt, equity or the repayment of an intercompany loan or advance; |
(x) | payments of any dividend, payment, loan or other distribution, or the repayment of a loan or the redemption of loan stock or redeemable equity, in each case, which is required in order to facilitate the making of payments by any person and to the extent required by the terms of (i) the Finance Documents, (ii) the Senior Secured Notes (as such term is defined in recent Liberty precedent), (iii) Holdco Debt (as defined in recent Liberty precedent), subject to the same conditions as set out in recent Liberty precedent, (iv) by the terms of any hedging agreements of Holdco Debt to which any immediate holding company of UPC Br |
(xi) | payments to enable any holding company of a member of the Borrower Group to pay taxes that are due by such holding company but which are allocable to (I) the Borrower Group and due by such holding company as a result of the Borrower Group being included in a fiscal unity with such holding company or (II) acting as a holding and/or financing company of the Borrower Group; |
(xii) | transactions contemplated by a disposal or similar transaction required by a regulatory authority or a court of competent jurisdiction; |
(xiii) | payments of an amount up to €250,000,000 from the cash proceeds of a Content Transaction (as such term is defined in recent Liberty precedent) provided that no Event of Default has occurred and is continuing; |
(xiv) | payments made to the Borrower’s holding company and any permitted affiliate of the Borrower’s holding company of amounts outstanding in relation to Subordinated Shareholder Loans or subordinated debt the proceeds of which are to be used by such holding company of the Borrower to refinance debt which it has incurred in an amount equal to the amount of Subordinated Shareholder Loan or subordinated debt received by the Borrower’s holding company; |
(xv) | payments made with the consent of the Majority Lenders; |
(xvi) | payments to any direct or indirect shareholder of a member of the Borrower Group for out-of-pocket expenses incurred in connection with its direct or indirect investment in a Borrower Group company; |
(xvii) | payments for certain holding company expenses (as defined in accordance with a recent Liberty precedent) including expenses payable in connection with, amongst other things, compliance with laws and regulations, reporting obligations, related indemnification payments, employee, directors and officers insurance policies and general corporate overhead expenses); |
(xviii) | payments for financial advisory, financing, underwriting or placement services or other investment banking activities, in particular acquisitions or divestitures, approved by the board of the holding company; |
(xix) | any other distribution, dividend, transfer of assets, loan or other payment not falling within the other limbs of the definition and not exceeding an aggregate amount of the greater of €250,000,000 and 5% of total assets in any financial year; |
(xx) | payment of an amount corresponding to the Revolving Facility Excluded Amount at any time provided that if at any time after a Permitted Payment under this limb is made the revolving facility is prepaid or repaid in full or in part, a further Permitted Payment may be made under this limb equal to (A) if in full, th |
(xxi) | payments in connection with any earn out; |
(xxii) | the transfer of tax losses to Restricted Persons (provided that the amount of such tax losses shall be deemed reduced by any payment received by any member of the Borrower Group from any Restricted Person for such tax losses) subject to pro rata leverage covenant compliance and no default having occurred or occurring; |
(xxiii) | payments in relation to any tax losses received by any member of the Borrower Group from any Restricted Person provided that such payments shall only be made in relation to such tax losses in an amount equal to the amount of tax that would have otherwise been required to be paid by any member of the Borrower Group if those tax losses were not so received and such payment shall only be made in the tax year in which such losses are utilised by any member of the Borrower Group; and |
(xxiv) | payments to fund the purchase of any management equity which is subsequently transferred to other or new management (together with the purchase or repayment of any related loans) and/or to make other compensation payments to departing management. |
(b) | amend Clause 16.13 (Restricted Payment) to include a provision, such that if a Permitted Payment meets the criteria of more than one of the categories described, UPC Broadband will be entitled to classify such Permitted Payment (or portion thereof) on the date of its payment or later reclassify such Permitted Payment (or portion thereof) in any manner that complies with the covenant in that Clause; and |
(c) | amend Clause 16.13 (Restricted Payment) to exclude Permitted Affiliate Transactions from the restriction in such Clause (with a new definition of such term to be included, consistent with recent Liberty precedent) and so that such Clause does not restrict transactions to the extent they constitute Permitted Payments. |
53. | Permitted Loans: amend Clause 16.14 (Loans and Guarantees): |
(a) | to include a limb for counter guarantees in relation to any rental guarantees; |
(b) | to include any credit given by a member of the Borrower Group to another member of the Borrower Group which arises by reason of a cash pooling, set off or other cash management arrangements of the Borrower Group or by reason of other credits relating to services performed or allocation of expenses; |
(c) | to include a limb for loans to employees in the ordinary course of employment or to fund exercise of share options or purchase of capital stock of up to €10,000,000 in aggregate; |
(d) | to include a loan made by a member of the Borrower Group pursuant to either an asset passthrough or a funding passthrough; |
(e) | to include a limb to include loans made by a member of the Borrower Group to a member of the Wider Group where the proceeds of the loan are to be used to make payments or for guarantees in relation to any senior unsecured notes (as such term is defined in the recent Liberty precedent) or to make Permitted Payments, provided that no Event of Default has occurred and is continuing or to fund any Permitted Payments following the occurrence of an Event of Default which are not prohibited under the terms of the Intercreditor Agreement as amended from time to time; |
(f) | to include loans granted by any member of the Borrower Group to a member of the Wider Group where the indebtedness outstanding relates to intra-group services in the ordinary course of business; |
(g) | to provide for the granting of customary title guarantees given in connection with the assignment of leases which are permitted under Clause 16.10 (Disposals); |
(h) | to include any loans arising from Subscribers (as defined in recent Liberty precedent) resulting from deferred purchase terms; |
(i) | to include loans made which are Permitted Financial Indebtedness or are in connection with Permitted Acquisitions; |
(j) | to replace the reference to €100,000,000 in paragraph (f) with €300,000,000 to increase the basket for lending transactions in connection with permitted acquisitions; |
(k) | to permit customary liquidity loans in connection with a permitted asset securitisation program or receivables factoring transaction; and |
(l) | to provide for the Borrower to be able to make loans and guarantees under a general basket of up to an aggregate of the greater of €100,000,000 and 2% of total assets. |
54. | Permitted Security Interest: Amend the definition of “Permitted Security Interest” to include Security Interests in addition to the existing “Permitted Security Interests”: |
(a) | which arise under any senior secured finance document which is subject to the term of an intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably); |
(b) | which arise by operation of law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty or a member of the Borrower Group in each case entered into in the ordinary course of business of the relevant member of the Borrower Group; |
(c) | which arise in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which arise in the ordinary course of business or by operation of law, under banking arrangements, retention of title arrangements or hedging arrangements; |
(d) | which arise from any finance leases, sale and leaseback arrangements or vendor financing arrangements which are permitted under Clause 16.12 (Restrictions on Financial Indebtedness); |
(e) | which arise over any asset acquired by a member of the Borrower Group and subject to which such asset is acquired provided that such Security Interest was not created in contemplation of the acquisition of the asset and the Financial Indebtedness secured thereby (i) is Financial Indebtedness of the relevant acquiring member of the Borrower Group, (ii) is Permitted Financial Indebtedness on the basis that it existed at the date of completion of a Permitted Acquisition or is Financial Indebtedness under permitted sale and leaseback transactions or vendor financing arrangements and (iii) the amount of such Financial Indebtedness is not increased at any time; |
(f) | which arise over any property or other assets to satisfy any pension plan contribution liabilities provided that the value of such property and assets, taken together in aggregate, and together in aggregate with any disposals permitted pursuant to (a)(vi) of clause 42 above, do not exceed €150,000,000 at any time; |
(g) | constituted by a rent deposit deed entered into on arm’s length commercial terms and in the ordinary course of business which secure obligations of a member of the Borrower Group in relation to property leased to a member of the Borrower Group; |
(h) | which is granted over the shares of indebtedness owed by or over assets attributable to a Project Company (as such term is defined in recent Liberty precedent) or a Permitted Joint Venture; |
(i) | over cash deposited as security for the obligations of a member of the Borrower Group in respect of a performance bond, guarantee, standby letter of credit or similar facility entered into in the ordinary course of business by a member of the Borrower Group; and |
(j) | which is created by a member of the Borrower Group in favour of the Security Agent in substitution for any Security Interest under an existing Security Document provided that the principal amount secured thereunder may not be increased unless any Security Interest in respect of such increased amount would be otherwise permitted under the Credit Agreement. |
55. | Changes to Thresholds: |
(a) | in the definition of Permitted Security Interest, permit the Borrower to secure Financial Indebtedness on a pari passu or junior-ranking basis provided that (other than in the case of a refinancing of other secured Financial Indebtedness in the same or a lesser principal amount) the Senior Debt to Annualised EBITDA ratio on a pro forma basis would not be greater than 4.50:1.00 and provided that such Financial Indebtedness is subject to an intercreditor agreement on terms satisfactory to the Facility Agent (acting reasonably) and where (in the case of such Financial Indebtedness being secured on a junior-ranking basis) the rights of the holders of such Financial Indebtedness in respect of any payment will be contractually subordinated to the rights of the Lenders on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt, as referred to in recent Liberty precedent); |
(b) | in Paragraph (n) of the definition of Permitted Security Interest, provide that the Borrower may secure Financial Indebtedness under this general basket of up to the greater of €250,000,000 and 5% of total assets, such security to be either on assets not subject to the security in favour of the Lenders or otherwise secured on a junior ranking basis over assets subject to the Lenders’ security (in the latter case provided that the rights of the holders of such Financial Indebtedness in respect of any payment will be contractually subordinated to the rights of the Lenders on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt, as referred to in recent Liberty precedent); and |
(c) | in Clause 18.5 (Cross default), delete references to €15,000,000 and €50,000,000 and replace them with €75,000,000. |
56. | Security and Guarantee Release: amend the relevant provisions of the Credit Agreement (in particular Clauses 26.4 (Additional Obligors), and 16.23 (Share Security)) to provide that, subject to certain thresholds being met no Obligor nor any other member of the Borrower Group is required to provide any Security or guarantee other than (i) Security over the shares that it holds in any Obligor, (ii) Security required under the terms of the Credit Agreement in respect of Subordinated Shareholder Loans, (iii) Security over loans made by Obligors to other members of the Borrower Group in accordance with clause 16.14 (Loans and guarantees) and (iv) a guarantee from the Obligors under the terms of the Credit Agreement and include a provision to authorise the Security Agent to release any other Security or guarantees other than the aforementioned and to release Security and guarantees in respect of Permitted Disposals and to permit relevant Security to be released if a Guarantor resigns and that guarantors can resign provided that the guarantor coverage test would still be met notwithstanding such release. |
57. | Events of Default: |
(a) | amend Clause 1.2 (Construction) to clarify that both a Default and an Event of Default is not continuing if remedied or waived; |
(b) | amend Clause 18.2 (Non-payment) to delete the qualification relating to technical or administrative errors and to include a 3 Business Day grace period for payment of principal and a 5 Business Day grace period for any other payments; |
(c) | include a new Paragraph (v) of Clause 18.6 (Insolvency) by clarifying that commencing negotiations with the Finance Parties will not constitute an Event of Default under this Paragraph and amend Paragraph (a) of Clause 18.7 (Insolvency Proceedings) including a general exclusion for contested proceedings that are frivolous, vexatious or an abuse of the process of the court but without the requirement to provide a legal opinion with respect thereto to the Facility Agent; |
(d) | amend Clause 18.5 (Cross default) to carve out circumstances being contested in good faith, Financial Indebtedness relating to hedging permitted under the Credit Agreement where a termination event arises as a result of a financing and Financial Indebtedness that is cash collateralised and such cash is available for application in satisfaction of this indebtedness in each case in line with recent Liberty precedent; and |
(e) | delete Clause 18.14 (Seizure), Clause 18.15 (Environmental Matters) 18.17 (Material Contracts) (and all references to Material Contracts) and Clause 18.19(b) (ERISA). |
58. | Impaired Agent: amend the Credit Agreement to provide for impaired agent provisions language used in recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market so that alternative payment and notice arrangements are permitted if the Facility Agent is impaired. |
59. | Defaulting Lender: include standard defaulting lender provisions used in recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market so as the commitments of a defaulting lender may be cancelled and it will have no rights to vote in respect of such cancelled commitments. Clarify that no commitment fee will be payable to a defaulting lender. |
60. | Replacement of Agent/Security Agent: amend Clause 19.14 (Resignation of Agents), in accordance with recent Liberty precedent, to: |
(a) | remove the requirements for UPC Broadband to: (a) be unsatisfied with the performance of the Agent; (b) specify reasonable grounds for replacement in the relevant notice and (c) add a requirement that no Default is outstanding at the relevant time; |
(b) | provide that UPC Broadband may remove the Facility Agent if the status or identity of the Facility Agent causes any Obligor to become liable for any withholding tax in connection with FATCA; and |
(c) | provide that UPC Broadband will have the right to appoint a successor Facility Agent without the Lenders’ consent twice during the life of the Facilities, |
61. | Assignments / Transfers of Lenders: clarify that the Borrower should have the right to withhold consent in respect of an assignment/transfer of any revolving credit facility to an entity which is not a lender under a revolving facility to the wider Liberty group (subject to no consent being required in the case of transfers to other Lenders or affiliates of Lenders or following an event of default which is continuing). There should be no unreasonableness or delay qualifier on this right (in respect of any revolving credit facility only) and no deemed consent concept. |
62. | Replacement of a Lender: amend the Credit Agreement to include the right to replace a Lender (in whole and at par) if the Obligor becomes obliged to make payment under Illegality, Increased Costs, Tax Gross up or Tax Indemnity provisions to any Lender, if a Lender invokes the provisions of Clause 11.2 (Market Disruption) or if a Lender is a defaulting lender. |
63. | Expenses: amend Clause 21.2 (Amendment costs) to make legal fees subject to any agreed caps; and Clause 22 (Stamp Duties) to ensure that any liability of the Borrower for the payment of any tax (including stamp taxes) does not extend to taxes payable in respect of an assignment or transfer of a Lender’s interest. |
64. | Amendments: |
(a) | amend Clause 25 (Amendments and waivers) to introduce a class exception, whereby any amendment or waiver that relates only to the rights or obligations of a particular utilisation or Facility and does not materially and adversely affect the rights or interests |
(b) | amend Clause 25.2 (Exceptions) to require the consent of affected Lenders only and not all Lenders (and make any consequential changes by amending for example, all references to matters requiring all Lender consent to only requiring affected Lender consent); |
(c) | include a new paragraph (e) to Clause 25.2 (Exceptions), to permit the Facility Agent to make technical, minor, operational and OID amendments without consent from any Lenders, on terms consistent with recent Liberty precedent as at the date of implementation of the amendments; |
(d) | include a new clause 25.5 (Calculation of Consent), such that where a request for a waiver of, or an amendment to, any provision of any Finance Document has been sent by the Facility Agent to the Lenders at the request of an Obligor, each Lender that does not respond to such request for waiver or amendment within 10 Business Days after receipt by it of such request (or within such other period as the Facility Agent and UPC Broadband shall specify), shall be excluded from the calculation in determining whether the requisite level of consent to such waiver or amendment was granted; and |
(e) | include a new paragraph (f) of Clause 25.2 (Exceptions) such that the release of guarantees and security under the Finance Documents (and not in accordance with the Finance Documents) requires the consent of affected Lenders whose undrawn Commitments and participations are greater than 90 per cent. of all undrawn Commitments and participations and delete paragraph (a)(x) of Clause 25.2 (Exceptions). |
65. | Covenant Compliance: disapply Clause 4.3 (Pro forma covenant compliance) so that there is no drawstop if the financial covenants would not be complied with in relation to a rollover of a revolving credit facility Advance or the redrawing of a term Advance. |
66. | Indemnification requirements: amend the Credit Agreement in respect of any indemnity granted by the Borrower to conform to recent Liberty precedent including, amongst others, amending Clause 10.3 (Tax Indemnity) such that the indemnity is paid within 10 Business Days and the loss is calculated on a reasonable basis. |
67. | Non-consenting Lenders: include a provision whereby if 80 per cent. of affected Lenders have consented to a request for an amendment or waiver, UPC Broadband may elect to replace any Lender that has not consented to such request by procuring that its relevant Commitments are acquired at par in accordance with the provisions in recent Liberty precedent. |
68. | References: amend the Credit Agreement: |
(a) | so that all references to any party include any assignees, transferees, successors in title and merged entities thereof; and |
(b) | to take account of the fact that certain Facilities under the Credit Facility have been (as at the date of this Agreement) repaid and cancelled in full. |
69. | Subsidiary: amend the definition of Subsidiary so that for the purposes of the financial covenants and related provisions that a “Subsidiary” of a person includes legal entity which is accounted for under applicable GAAP or IFRS as a Subsidiary. |
70. | Material Adverse Effect: amend definition of Material Adverse Effect so that it relates only to payment obligations and not “other material obligations”. |
71. | Certain Funds Acquisitions: amend Clause 4.2 (Further Conditions Precedent) to provide that the relevant Additional Facility Lenders may amend or waive any of the conditions at paragraphs (a) and (b) in relation to any Advance under an Additional Facility in relation to an acquisition where the relevant vendor requires, or it is commercially advantageous in connection with any competitive bid process that, such acquisition is completed on a certain funds basis other than an Event of Default that has arisen under Clause 18.2 (Non-payment) or Clauses 18.6 (Insolvency) to 18.10 (Similar proceedings). |
72. | Calculation of EURIBOR/LIBOR: amend the Credit Agreement to include provisions for the calculation of EURIBOR/LIBOR in accordance with recent Liberty precedent and/or, to the extent not inconsistent with recent Liberty precedent, the European leverage loan market provided that in no circumstances will EURIBOR/LIBOR be deemed to be zero and to include a requirement for the Facility Agent to notify the relevant Borrower of each funding rate. |
73. | Voluntary cancellation/prepayment: amend clauses 7.2 (Voluntary cancellation) and 7.3 (Voluntary prepayment) to delete the references to delivering to the Facility Agent a duly completed Cancellation Notice not less than “five” Business Days prior to the due date of the cancellation/prepayment and replace it with a reference to not less than “three” Business Days or such other time period agreed between UPC Broadband and the Facility Agent prior to the due date of the cancellation/prepayment. |
74. | Deferred Acquisition Costs: amend the thresholds in clause 4.4 (Deferred Acquisition Costs) such that the reference to €100,000,000 is replaced with a reference to €250,000,000 and the references to €150,000,000 are replaced with references to €300,000,000. |
75. | Additional Facility Accession Agreement: amend the Additional Facility Accession Agreement definition to delete the reference to “with such amendments as the Facility Agent may approve or reasonably require” and replace it with a reference to “with such amendments as may be agreed between UPC Broadband and the relevant Lender or Lenders under the proposed Additional Facility”. |
76. | Guarantor Coverage: replace the reference to “95%” at paragraph (b)(i)(B) of Clause 26.4 (Additional Obligors) with a reference to “80%” and at paragraph (b)(i)(A) of Clause 26.4 (Additional Obligors) replace “the Guarantors as of the Effective Date (other than UPC Broadband, any UPC Broadband Holdco, UPC Holding and UPC Holding II) and their respective Subsidiaries” with “the Guarantors as of the Effective Date (other than UPC Broadband, any UPC Broadband Holdco, UPC Holding, UPC Holding II and any Subsidiary of UPC Broadband that is a Holding Company of all other Subsidiaries of UPC Broadband) and their respective Subsidiaries”. |
77. | UGCE Borrower Group: amend the definition of UGCE Borrower Group so that it refers to UPC Holding and any other company of which UPC Broadband is a Subsidiary and which is a Subsidiary of UPC Holding. |
78. | Benefit of Maintenance Covenant: amend the Credit Agreement to provide that: |
(a) | the maintenance covenants at Clause 17.2 (Financial ratios) shall only be for the benefit of those Lenders under Additional Facilities that (i) are stated to have the benefit of such maintenance covenants or (ii) do not contain a statement that they do not have the benefit of such maintenance covenants, in each case, in the relevant Additional Facility Accession Agreement; |
(a) | a new definition of “Composite Maintenance Covenant Instructing Group” is included which shall consist of a Lender or Lenders whose Additional Facility Commitments in respect of Additional Facilities that benefit from the maintenance covenants at Clause 17.2 (Financial ratios) amount in aggregate to more than 50% of the total Additional Facility Commitments in respect of Additional Facilities that benefit from the maintenance covenants calculated in accordance with the new clause 25.5 (Calculation of Consent) (as referred to in paragraph 64(d) of this Schedule) and not taking into account Commitments in respect of which a cancellation notice has been issued; |
(b) | following a breach of Clause 17.2 (Financial ratios), subject to the expiry of the cure period in accordance with Clause 17.4 (Cure provisions), (i) the Facility Agent shall, if instructed by the Composite Maintenance Covenant Instructing Group, take acceleration action in respect of the Additional Facilities and Commitments held by Lenders in the Composite Maintenance Covenant Instructing Group in accordance with recent Liberty precedent, (ii) there shall be a drawstop in relation to future Advances and (iii) there shall be an Event of Default continuing for the purposes of the operative covenants e.g. paragraph 52(a)(v) above; |
(c) | an Event of Default will be triggered if the Composite Maintenance Covenant Instructing Group give a direction to the Facility Agent in accordance with the new acceleration clause at (c) above; and |
(d) | amendments and waivers of Clauses 17.2 (Financial ratios) to 17.4 (Cure provisions) and the new acceleration clause at (c) above shall only be made with the consent of UPC Broadband and the Composite Maintenance Covenant Instructing Group and shall not require the consent of any other Finance Party. |