as Qualified Independent Underwriter,

 

Ladies and Gentlemen:

 

Virgin Media Finance PLC, a public limited company organized under the laws of England and Wales (the “ Company ”), proposes, subject to the terms and conditions stated herein, to issue and sell (i) to the Underwriters named in Schedule I-A hereto (the “ Dollar Underwriters ”) an aggregate of U.S.$750,000,000 principal amount of the 9.50% Senior Notes due 2016 (the “ Dollar Notes ”) and (ii) to the Underwriters named in Schedule I-B hereto (the “ Euro Underwriters ” and together with the Dollar Underwriters, the “ Underwriters ”) an aggregate of €180,000,000 principal amount of the 9.50% Senior Notes due 2016 (the “ Euro Notes ” and together with the Dollar Notes, the “ Securities ”).  The Dollar Representatives and the Euro Representatives are referred to collectively herein as the “ Representatives ”)

 

Virgin Media Inc., a Delaware corporation (the “ Parent ”), will unconditionally guarantee the Securities as to payments of principal and interest (the “ Parent Guarantee ”).  Virgin Media Group LLC, a Delaware limited liability company (“ Virgin Media LLC ”), Virgin Media Holdings Inc., a Delaware corporation (“ Virgin Media Holdings ”), Virgin Media (UK) Group, Inc., a Delaware corporation (“ Virgin Media UK ”), and Virgin Media Communications Limited, a limited company organized under the laws of England and Wales (“ Virgin Media Communications ” and, together with Virgin Media LLC, Virgin Media Holdings and Virgin Media UK, the “ Intermediate Guarantors ”) will each unconditionally guarantee the Securities as to payments of principal and interest (the “ Virgin Media LLC Guarantee ”,  the “ Virgin Media Holdings Guarantee ”, the “ Virgin Media UK Guarantee ” and the “ Virgin Media Communications Guarantee ”, respectively, and together the “ Intermediate Guarantees ”).  Virgin Media Investment Holdings Limited, a limited company organized under the laws of England and Wales (“ VMIH ”), will guarantee the Securities as to payments of principal and interest on a subordinated and conditional basis (the “ Subordinated Guarantee ” and, together with the Parent Guarantee and the Intermediate Guarantees, the “ Guarantees ”).  The Parent, Virgin Media LLC, Virgin Media Holdings, Virgin Media UK, Virgin Media Communications and VMIH, collectively, shall be referred to herein as the “ Guarantors ”; the Intermediate Guarantee given by Virgin Media Communications and the Subordinated Guarantee together shall be referred to as the “ English Guarantees .”  In connection with the offering and sale of the Dollar Notes, Deutsche Bank Securities Inc., Goldman, Sachs & Co., J.P. Morgan Securities Inc. will act as Global Coordinators and Book-Running Lead Managers; The Royal Bank of Scotland plc, BNP Paribas, CALYON and HSBC Securities (USA) Inc. will act as Book-Running Lead Managers; and Fortis Securities LLC, Lloyds TSB Bank plc, Barclays Capital Inc. and UBS Securities LLC will act as Co-Managers. In connection with the offering and sale of the Euro Notes, Deutsche Bank AG, London Branch, Goldman, Sachs & Co., J.P. Morgan Securities Ltd. will act as Global Coordinators and Book-Running Lead Managers; The Royal Bank of Scotland plc, BNP Paribas, CALYON and HSBC Bank plc will act as Book-Running Lead Managers; and Fortis Bank, Lloyds TSB Bank plc, Barclays Bank PLC and UBS Securities LLC will act as Co-Managers.

 

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1.              The Company (as to itself), the Parent (as to itself and the Company), Virgin Media LLC (as to itself), Virgin Media Holdings (as to itself), Virgin Media UK (as to itself), Virgin Media Communications (as to itself) and VMIH (as to itself) represent and warrant to, and agree with, each of the Underwriters as set forth below.  Each representation, warranty and agreement shall be made as of the date hereof, as of the Time of Sale (as defined herein) and as of the Closing Date.

 

(a)            The Company and the Guarantors have prepared and filed with the U.S. Securities and Exchange Commission (the “ Commission ”) under the U.S. Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Act ”), a registration statement on Form S-3 (Registration Nos. 333-159493, 333-159493-01, 333-159493-02, 333-159493-03, 333-159493-04, 333-159493-05 and 333-159493-06), relating to, among other things, certain debt securities to be issued from time to time by the Company. The Company and the Guarantors have also filed with, or propose to file with, the Commission pursuant to Rule 424 under the Act, one or more prospectus supplements specifically relating to the Securities and the Guarantees (each a “ Prospectus Supplement ”). The registration statement, as amended to the date of this Agreement, including the information, if any, deemed pursuant to Rule 430A, Rule 430B or Rule 430C under the Act to be part of and included in the registration statement (“ Rule 430 Information ”), is hereinafter referred to as the “ Registration Statement ”; and the related prospectus included in the Registration Statement at the time of its effectiveness is hereinafter referred to as the “ Base Prospectus ”. Each preliminary Prospectus Supplement that omits Rule 430 Information is herein referred to as a “ Preliminary Prospectus Supplement ”; and the Base Prospectus as supplemented by a Preliminary Prospectus Supplement is hereinafter referred to as a “ Preliminary Prospectus ”. The Prospectus Supplement in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Act) to confirm sales of the Securities is hereinafter referred to as the “ Final Prospectus Supplement ”. The Base Prospectus as supplemented by the Final Prospectus Supplement is hereinafter referred to as the “ Prospectus ”.  If the Company and the Guarantors have filed an abbreviated registration statement pursuant to Rule 462(b) under the Act (the “ Rule 462 Registration Statement ”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the effective date of the Registration Statement or the date of such Prospectus Supplement, Preliminary Prospectus or the Prospectus, as the case may be, which were filed under the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Exchange Act ”) and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Prospectus Supplement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Exchange Act that are deemed to be incorporated by reference therein.

 

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(b)            At or prior to the time when sales or contracts for sales of the Securities were first made (the “ Time of Sale ”), the Company had prepared the following information (collectively, the “ Time of Sale Information ”): the Base Prospectus, a Preliminary Prospectus Supplement dated May 27, 2009, and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Act) listed on Annex I-A hereto, including a final pricing term sheet substantially in the form of Annex II.

 

(c)            No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein, it being understood and agreed that such information furnished by any Underwriter consists only of the following information in the Preliminary Prospectus Supplement (and the same information in the Final Prospectus Supplement) furnished on behalf of each Underwriter: the second sentence under the heading “Summary—The Offering—No Prior Market”, the fourth paragraph under the heading “Underwriting”, and the second and third sentence of the sixth paragraph under the heading “Underwriting”, in each case as such information may be amended in the Prospectus at the request of the Representatives (such information, the “ Underwriter Information ”).

 

(d)            The Time of Sale Information (before giving effect to any “free-writing prospectus” listed on Annex I hereto other than the final pricing term sheet substantially in the form of Annex II), as of the Time of Sale, did not, and at the Closing Date, will not, contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however , that this representation and warranty shall not apply with respect to any statements or omissions made in reliance upon and in conformity with the Underwriter Information.

 

(e)            Neither the Company nor any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has made, used, prepared, authorized, approved or referred to nor will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication (other than communications referred to in clauses (1), (2), (3) and (4) below) by the Company or any Guarantor or their respective agents and representatives, other than the Underwriters in their capacity as such, an “ Issuer Free Writing Prospectus ”) other than (1) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the Act, (2) the Base Prospectus, (3) any Preliminary Prospectus Supplement, (4) the Final Prospectus Supplement and (5) the documents listed on Annex I hereto and other written

 

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communications approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus listed on Annex I hereto does not conflict with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus; and each such Issuer Free Writing Prospectus permitted hereunder complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433 under the Act) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however , that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information.

 

(f)             The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that was filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company or any Guarantor. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or any Guarantor or related to the offering of the Securities has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Act and the U.S. Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “ Trust Indenture Act ”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however , that this representation and warranty shall not apply with respect to (1) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (2) any statements or omissions made in reliance upon and in conformity with the Underwriter Information.

 

(g)            All documents incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus (the “ Exchange Act Reports ”), when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus (or any further amendment or

 

5

 

supplement thereto), when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however , that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information.

 

(h)            The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects, the financial position of the Parent and/or its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly in all material respects the information required to be stated therein; and the other financial information of the Parent and its subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Parent and its subsidiaries and presents fairly, in all material respects, the information shown thereby.

 

(i)             Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, (i) neither the Parent nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus any loss or interference with its businesses from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree which could have a material adverse effect on the condition, financial or otherwise, business, general affairs, management, financial position, stockholders’ equity or results of operations of the Parent and its subsidiaries taken as a whole (a “ Material Adverse Effect ”); (ii) since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus neither the Parent nor any of its subsidiaries has entered into any transaction or agreement, other than in the ordinary course of business, that is material to the Parent and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Parent and its subsidiaries taken as a whole; (iii) since the respective dates of the information which is given in the capitalization table set forth in the Preliminary Prospectus and the Prospectus, including the notes thereto, there has not been any material change in the capital stock of the Parent or any of its subsidiaries or long-term debt of the Parent and its subsidiaries on a consolidated basis, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Parent on any class of capital stock (except for the Parent’s regular quarterly dividend to be paid in June 2009); and (iv) since the respective dates of the information which is given in the Registration Statement, the Time

 

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of Sale Information and the Prospectus there has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Parent and its subsidiaries taken as a whole.  Each subsidiary listed on Schedule II to this Agreement is referred to as a “ Material Subsidiary ”, and each subsidiary of the Parent that is a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Act is included on Schedule II; provided, however, that for the purpose of determining whether a subsidiary is a “significant subsidiary”, the Parent has used the 2007 fiscal year unconsolidated financial statements for each such subsidiary.

 

(j)             The Parent and its Material Subsidiaries have good and marketable title to all material real property and good and marketable title to all material personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such liens, encumbrances and defects as are described in the Time of Sale Information and the Prospectus (including liens granted in connection with the senior facilities agreement of VMIH originally dated March 3, 2006, as amended (the “ Senior Credit Facility ”)) or such as do not materially affect the value of such property and do not interfere in any material respect with the use made and proposed to be made of such property by the Parent and its subsidiaries taken as a whole; and any material real property, buildings and other premises held under lease by the Parent and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material to the Parent and its subsidiaries taken as a whole and do not interfere in any material respect with the use made and proposed to be made of such property and buildings by the Parent and its subsidiaries taken as a whole.

 

(k)            Each of the Parent, Virgin Media LLC, Virgin Media Holdings and Virgin Media UK has been duly incorporated or formed, as the case may be, and is validly existing as a corporation or limited liability company, as the case may be, in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification; each of the Company, Virgin Media Communications and VMIH has been duly organized and is validly existing as a limited company under the laws of England and Wales, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus; and each other Material Subsidiary of the Parent has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization except, in each case, to the extent the failure to be so qualified, in good standing or have such power or authority could not reasonably be expected to have a Material Adverse Effect.

 

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(l)             All of the issued shares of capital stock of the Parent have been duly and validly authorized and issued.  All of the issued shares of capital stock of the Parent are fully paid and non-assessable.  All of the issued shares of capital stock of each subsidiary of the Parent have been duly and validly authorized and issued, are fully paid and, to the extent relevant in the jurisdiction of organization of such subsidiary, non-assessable and (except for directors’ qualifying shares or as described in the Time of Sale Information and the Prospectus, and except for the entities listed on Schedule IV hereto) are owned directly or indirectly by the Parent, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party, except for the pledge of shares and assets of substantially all of the subsidiaries of Virgin Media Communications pursuant to the Senior Credit Facility and, in each case, except as could not reasonably be expected to have a Material Adverse Effect.

 

(m)           The Company and the Guarantors have all requisite corporate (or other) power and authority to enter into this Agreement, the Securities, the Guarantees and the Indenture to be dated as of the Closing Date (the “ Indenture ”) among the Company, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as Trustee (the “ Trustee ”) (collectively, the “ Transaction Documents ”) and to perform their respective obligations hereunder and thereunder.  All action (corporate or other) required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.

 

(n)            This Agreement has been and, as of the Closing Date, the Indenture will have been, duly authorized, executed and delivered by the Company and the Guarantors and upon such execution by the Company and the Guarantors (assuming the due authorization, execution and delivery of such agreements by the other parties thereto) this Agreement and the Indenture will constitute the valid and binding obligations of the Company and the Guarantors enforceable against the Company and the Guarantors in accordance with the terms hereof or thereof, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and except as the enforcement of indemnification, contribution or exculpation provisions hereof and thereof may be limited by applicable law (collectively, the “ Enforceability Exceptions ”).

 

(o)            The Securities and the Guarantees have been duly authorized and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, the Parent, each of the Intermediate Guarantors and VMIH, respectively, entitled to the benefits provided by the Indenture, enforceable against the Company, the Parent, each of the Intermediate Guarantors and VMIH, as the case may be, in accordance with their terms, subject to the Enforceability Exceptions.

 

(p)            The execution, delivery and performance by the Company and the Guarantors of each of the Transaction Documents, the issuance, authentication, sale and

 

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delivery by the Company  of the Securities and the issuance and delivery by the Guarantors of the Guarantees in accordance with the terms and conditions of the Indenture, and the compliance by the Company and the Guarantors (to the extent applicable) with all of the provisions of the Transaction Documents and the consummation of the transactions by the Company and the Guarantors contemplated by the Transaction Documents or the Time of Sale Information and the Prospectus (i) will not conflict with or result in a breach or violation of, or change of control under, any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Parent or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Parent or any of its subsidiaries is a party or by which the Parent or any of its subsidiaries is bound or to which any of the property or assets of the Parent or any of its subsidiaries is subject, (ii) will not result in any violation of the provisions of the Certificate of Incorporation or By-laws or similar constitutive documents of the Parent or any of its Material Subsidiaries and (iii) will not result in any violation of, or any termination or material impairment of any rights under, any statute or any license, authorization, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Parent or any of its subsidiaries or any of their properties, including any license, authorization, order, rule or regulation administered or promulgated by the UK Office of Communications (“ OFCOM ”), or the rules and regulations of The Nasdaq Stock Market; except in any such case described in subclause (i) or (iii) as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(q)            No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the Parent or any of its subsidiaries or any of their respective properties is required for the execution, delivery and performance by the Company or the Guarantors of each of the Transaction Documents to which it is a party, the issuance, authentication, sale and delivery by the Company of the Securities and the issuance and delivery by the Guarantors of the Guarantees in accordance with the terms and conditions of the Indenture, and the compliance by the Company and the Guarantors (to the extent applicable) with all the provisions of the Transaction Documents and the consummation of the transactions contemplated by the Transaction Documents or the Time of Sale Information and the Prospectus, except for (i)(A) the registration of the Securities (including the Guarantees) under the Act, (B) the qualification of the Indenture and the Trustee under the Trust Indenture Act and (C) such consents, approvals, authorizations, registrations or qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“ FINRA ”), in connection with the registration of the Securities and the Guarantees, or (ii) such consents, approvals, authorizations, registrations or qualifications (A) as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Securities and the Guarantees by the Underwriters, or (B) the absence of which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

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and its subsidiaries within the applicable rules and regulations adopted by the Public Company Accounting Oversight Board (United States).

 

(x)             The Parent and its subsidiaries own or possess, or have the right to use, or can acquire on commercially reasonable terms, patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them (the “ Intellectual Property Rights ”), except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and neither the Parent nor any of its subsidiaries has received any written notice of material infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(y)            Except as set forth in the Time of Sale Information and the Prospectus, no labor dispute with the employees of the Parent or any of its subsidiaries exists or, to the knowledge of the Parent, is threatened which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(z)             The Parent and its subsidiaries have paid all material U.S. and U.K. federal and state, as applicable, taxes and filed all U.S. and U.K. material tax returns required to be paid or filed through the date hereof except where the failure to so pay or file would not have a Material Adverse Effect; and except as otherwise disclosed in the Time of Sale Information and the Prospectus, there is no material tax deficiency that has been asserted against the Parent or any of its subsidiaries.

 

(aa)          The Underwriters will not be required to pay any ad valorem stamp duty, stamp tax, stamp duty, reserve tax, transfer tax or issue, documentary, certification or other similar tax imposed by any government department or other taxing authority of or in the United States or the United Kingdom, in connection with (i) the sale, issuance and delivery of the Securities by the Company and the Guarantees by the Guarantors as contemplated by this Agreement and (ii) the purchase by the Underwriters of the Securities in the manner contemplated by this Agreement.

 

(bb)          Except as described in the Registration Statement, the Time of Sale Information and the Prospectus, (i) the Parent and its Material Subsidiaries possess all certificates, authorizations, licenses, and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses except where the failure to possess such certificates, authorizations, licenses and permits would not have a Material Adverse Effect, and (ii) to the best knowledge of the Parent, having made reasonable inquiry, neither the Parent nor any of its Material Subsidiaries has received any notice of proceedings relating to the revocation or modification of any certificate, authorization, license, or permit, which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

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(cc)          Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus and except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) the Parent and each of its Material Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect to such deductibles, co-insurance and self-insurance) as is customary in the businesses in which they are engaged (it being understood that the Parent and its Material Subsidiaries do not maintain insurance with respect to the underground portion of their cable network); (ii) neither the Parent nor any of its Material Subsidiaries has received notice from any insurer or agent of such insurer that material capital improvements or other material expenditures are required or necessary to be made in order to continue such insurance; and (iii) neither the Parent nor any of its Material Subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.

 

(dd)          The Parent and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except in each case as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  There are no material costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) other than as properly reserved for in the latest audited financial statements of the Parent included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus and other than as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(ee)          The Parent maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Parent in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Parent’s management as appropriate to allow timely decisions regarding required disclosure.

 

(ff)            The Parent maintains systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, its principal

 

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executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including, but not limited to internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences (provided, however, because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements).  For the year ended December 31, 2008, there were no material weaknesses in the Parent’s internal control over financial reporting.

 

(gg)          Neither the Parent nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Parent or any of its subsidiaries or the Underwriters for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities (other than the Notes Engagement Letter dated October 13, 2008 among the Parent, the Company and the Managers named therein and related arrangements).

 

(hh)          Neither the Parent nor any of its subsidiaries has taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.

 

(ii)            Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, no person has the right to require the Parent or any of its subsidiaries to register any securities for sale under the Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.

 

(jj)            The Company is not an ineligible issuer and the Parent is a well-known seasoned issuer, in each case as defined in Rule 405 under the Act, in each case at the time specified in the Act in connection with the offering of the Securities.

 

(kk)          Neither the Parent nor any of its subsidiaries nor, to the best knowledge of the Parent, any director, officer, agent, employee or other person associated with and acting on behalf of the Parent or any of its subsidiaries, has materially violated or is in material violation of any provision of the Foreign Corrupt Practices Act of 1977.

 

(ll)            The operations of the Parent and its subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered

 

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or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Parent or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Parent, threatened.

 

(mm)        No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) contained in the Registration Statement, the Time of Sale Information and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

 

2.              (a)            Subject to the terms and conditions herein set forth, the Company agrees to issue and sell (i) to each of the Dollar Underwriters, and each of the Dollar Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price equal to 93.59% of the principal amount thereof, the principal amount of the Dollar Notes set forth opposite the name of such Underwriter in Schedule I-A hereto and (ii) to each of the Euro Underwriters, and each of the Euro Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price equal to 93.59% of the principal amount thereof, the principal amount of the Euro Notes set forth opposite the name of such Underwriter in Schedule I-B hereto.  The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.

 

(b)            The Company acknowledges and agrees that each Underwriter is acting solely pursuant to a contractual relationship with the Company on an arm’s length basis with respect to the issue, offer and sale of the Securities (including in connection with determining the terms of the issue, offer and sale of the Securities) and not as a financial advisor or a fiduciary to the Company or any other person. In connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company. Additionally, the Company acknowledges that the Underwriters are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto.  The Company further acknowledges and agrees that any review by the Underwriters of the Company, the issue, offer and sale of the Securities, the terms of the Securities and other matters relating thereto will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or any other person.  The foregoing is without prejudice to any obligation of the Representatives to make recommendations to the Company concerning the pricing and allocation of the offering in accordance with applicable rules of the U.K. Financial Services Authority. The Company agrees that it will not claim that the Underwriter, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.

 

3.              The Company hereby confirms its engagement of Barclays Capital Inc. as, and Barclays Capital Inc. hereby confirms its agreement with the Company to render services as, a

 

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“qualified independent underwriter” within the meaning of NASD Rule 2720(b)(15) of FINRA with respect to the offering and sale of the Securities. Barclays Capital Inc., in its capacity as qualified independent underwriter and not otherwise, is referred to herein as the “ QIU ”.

 

4.              Upon the authorization by the Representatives of the release of the Securities and the Guarantees thereof, the several Underwriters propose to make a public offering of the Securities and the Guarantees thereof for sale upon the terms and conditions set forth in this Agreement and the Prospectus and each Underwriter severally hereby represents and warrants to, and agrees with, the Company and the Guarantors that:

 

(a)            It has not used, authorized use of, referred to, created, or participated in the planning for use of, and will not use, authorize use of, refer to, create, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company or the Parent); provided, however , that it may create, use, authorize use of, refer to, or participate in the planning for use of (1) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (2) any Issuer Free Writing Prospectus listed in Annex I or prepared pursuant to Section 1(e) and 6(e) hereof, or (3) any free writing prospectus prepared by the Underwriters and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (1) or (3), an “ Underwriter Free Writing Prospectus ”).

 

(b)            It is not subject to any pending proceeding under Section 8A of the Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).

 

(c)            It will comply with the terms of Annex VII hereto and the selling restrictions contained in the Preliminary Prospectus and the Prospectus under the heading “Underwriting.”

 

5.              (a)     The Securities to be purchased by each Underwriter hereunder will be represented by definitive global securities in book-entry form.  The Dollar Notes will be deposited by or on behalf of the Company with The Depository Trust Company (“ DTC ”) or its designated custodian.  The Euro Notes will be deposited by or on behalf of the Company with The Bank of New York Mellon as common depositary for Euroclear Bank S.A./N.V. and Clearstream Banking S.A.  The Company will deliver the Dollar Notes to the Dollar Representatives, for the account of each Dollar Underwriter, against the payments and deposits by the Dollar Underwriters noted in Section 2 hereof by causing DTC to credit the Dollar Notes to the account of the Trustee at DTC.  The Company will deliver the Euro Notes to the Euro Representatives, for the account of each Euro Underwriter, against the payments and deposits by the Euro Underwriters noted in Section 2 hereof by causing The Bank of New York Mellon to credit the Euro Notes to the account of the Trustee.  The Company will cause forms of the certificates

 

15

 

representing the Dollar Notes and the Euro Notes to be made available to the Dollar Representatives and Euro Representatives, as the case may be, for checking at least twenty-four hours prior to the Closing Date at the office of DTC (or its designated custodian) or The Bank of New York Mellon (or its designated custodian), as the case may be (the “ Designated Office ”), or such other time and place as the Representatives and the Company may agree upon. The time and date of such delivery and payment shall be 9:00 a.m., London time, on June 3, 2009 (the “ Closing Date ”) or such other time and date as the Representatives and the Company may agree upon in writing.

 

(b)            The documents to be delivered on the Closing Date by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross receipt for the Securities, will be delivered at such time and date at the offices of Simpson Thacher & Bartlett LLP, One Ropemaker Street, London EC2Y 9HU, England (the “ Closing Location ”). The Securities will be delivered at the Designated Office, all on the Closing Date.  A meeting will be held at the Closing Location at 1:00 p.m., London time, on the business day next preceding the Closing Date, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto.

 

6.              Each of the Company and the Guarantors agree with each of the Underwriters:

 

(a)            To file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A or 430B under the Act, to file any Issuer Free Writing Prospectus (including the final pricing term sheet substantially in the form of Annex II hereto) to the extent required under the Act, and to file, within the time periods required under the Exchange Act, all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and to furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in such quantities as the Underwriters may reasonably request; and the Parent and/or one of its subsidiaries has paid or will pay the registration fees for this offering of the Securities within the time period required by Rule 456(b)(1)(i) under the Act;

 

(b)            To deliver, without charge, (i) to the Representatives, copies of the Registration Statement with fax signatures as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference, in such quantities as the Representatives may reasonably request; and (ii) to each Underwriter (A) conformed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith, in such quantities as the Representatives may reasonably request and (B) during the Prospectus Delivery Period (as defined below), copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus in such quantities as the Representatives may reasonably request on behalf of the Underwriters.

 

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As used herein, the term “ Prospectus Delivery Period ” means such period of time after the first date of the public offering of the Securities as, in the opinion of counsel for the Underwriters, a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Act) in connection with sales of the Securities by any Underwriter or dealer;

 

(c)            Prior to the later of the Closing Date and the termination of the Prospectus Delivery Period, before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file such proposed amendment or supplement to which the Representatives reasonably object;

 

(d)            To advise the Representatives promptly, and confirm such advice in writing, (i) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any Prospectus Supplement or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act; (ii) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (iii) of the receipt by the Company or any Guarantor of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act; and (iv) of the receipt by the Company or any Guarantor of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or promptly upon becoming aware of the initiation or the threatening of any proceeding for such purpose; and to use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of the Base Prospectus, any Prospectus Supplement or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, to obtain as soon as reasonably possible the withdrawal thereof;

 

(e)            That (1) if during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus or any Issuer Free Writing Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus or any Issuer Free Writing Prospectus to comply with law, to

 

17

 

notify the Representatives immediately thereof and to prepare forthwith and, subject to paragraph (c) above, to file with the Commission and furnish to the Representatives and such Underwriters and dealers as the Representatives may designate, such amendments or supplements to the Prospectus or any Issuer Free Writing Prospectus as may be necessary so that the statements in the Prospectus or any Issuer Free Writing Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, to notify the Representatives immediately thereof and to prepare forthwith and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Representatives and such Underwriters and dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale Information will comply with law;

 

(f)             To qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdiction as the Representatives shall reasonably request and to continue such qualifications in effect so long as required for distribution of the Securities; provided, however , that neither the Company nor any of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject;

 

(g)            Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities;

 

(h)            During the period beginning from the date hereof and continuing until and including the date that is (i) 30 days after the date hereof not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any debt securities of the Parent or any of its subsidiaries nor shall any such entity guarantee any debt securities, without the prior written consent of at least half of the Representatives or (ii) 15 days after the date hereof not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any debt securities of the Parent or any of its subsidiaries nor shall any such entity guarantee any debt securities, without the prior written consent of all the Representatives, in each case, which consent shall not be unreasonably withheld  (for the avoidance of doubt, intercompany loans, including intercompany loans in the form of convertible unsecured loan stock, and any drawdowns under any Facility or Additional

 

18

 

Facility under, and as defined in, the Senior Credit Facility, are not “debt securities” for purposes hereof);

 

(i)             Not to be or become, at any time prior to the expiration of one year after the Closing Date, an open-end investment company, unit investment trust, closed-end investment company or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act;

 

(j)             The Company has not and will not issue without the prior consent of the Underwriters, any press or other public announcement referring specifically to the proposed issue of Securities unless the announcement adequately discloses the fact that stabilizing action may take place in relation to the Securities to be issued, and the Company and the Guarantors each authorize the Underwriters to make adequate public disclosure of the information required by the Financial Services Authority’s Code of Market Conduct (MAR2): Price Stabilising Rules;

 

(k)            That the Parent will make generally available to holders of the Securities and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Parent occurring after the “effective date” (as defined in Rule 158) of the Registration Statement;

 

(l)             To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner described in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”;

 

(m)           To use its reasonable best efforts to list, subject to the notice of issuance, the Securities on the Official List of the Luxembourg Stock Exchange (the “ Exchange ”) for admission to trading on the Euro MTF market of the Exchange and, if at any time following the listing of the Securities on the Exchange such Securities cease to be so listed, to use its reasonable best efforts to list the Securities on another recognized stock exchange reasonably satisfactory to the Representatives;

 

(n)            That all amounts payable hereunder shall be paid in U.S. dollars and free and clear of, and without any deduction or withholding for or on account of, any current or future taxes (other than income taxes), levies, imposts, duties, charges or other deductions or withholdings levied in any jurisdiction from or through which payment is made, unless such deduction or withholding is required by applicable law, in which event the Parent and/or one of its subsidiaries will pay or cause to be paid additional amounts so that the persons entitled to such payments will receive the amount that such persons would otherwise have received but for such deduction or withholding after allowing for any tax credit or other benefit each such person receives by reason of such deduction or withholding; and

 

19

 

certificate delivered pursuant to this Agreement are, as of the date hereof and at and as of the Closing Date, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:

 

(a)            No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Act, shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act) and in accordance with Section 6(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.

 

(b)            Ernst & Young LLP shall have furnished to the Representatives a “comfort letter” or “comfort letters”, dated the date of this Agreement and the Closing Date, in form and substance satisfactory to the Representatives relating to the Time of Sale Information and the Prospectus and to certain financial statements of the Parent issued in accordance with Statement of Accounting Standards No. 72; provided that the letters shall use a “cut-off” date no more than three business days prior to the date of delivery.

 

(c)            The Representatives shall have received on and as of the Closing Date, a certificate in the form as set forth in Annex III hereto, dated as of such date and signed by the Chief Executive Officer, Chief Financial Officer or General Counsel of the Parent, on behalf of the Parent in such person’s capacity as such officer (and not in a personal capacity).

 

(d)            Fried, Frank, Harris, Shriver & Jacobson (London) LLP, as special U.S. counsel for the Parent, the Intermediate Guarantors, the Company and VMIH, shall have furnished to the Representatives their written opinion and disclosure letter, dated the Closing Date, substantially in the form of Annex IV hereto.

 

(e)            Robert Mackenzie, UK Legal Director of the Parent, shall have furnished to the Representatives his written opinion, dated the Closing Date, substantially in the form of Annex V hereto.

 

(f)             Fried, Frank, Harris, Shriver & Jacobson (London) LLP, English counsel to the Parent, the Intermediate Guarantors, the Company and VMIH, shall have furnished to the Representatives their written opinion, dated the Closing Date, substantially in the form of Annex VI hereto.

 

(g)            Simpson Thacher & Bartlett LLP, counsel for the Underwriters, shall have furnished to the Representatives such written opinion or opinions and a negative assurance letter, each dated the Closing Date, with respect to such matters as the Underwriters may reasonably request, and such counsel shall have received such

 

21

 

documents and information as they may reasonably request to enable them to pass upon such matters.

 

(h)            After the date hereof and on or before the Closing Date, except for announced possible downgrades, negative outlooks or reviews prior to the date hereof and subsequent downgrades resulting therefrom, (i) no downgrading shall have occurred in the rating accorded the Parent’s or any of its subsidiaries’ debt securities, including the Securities, by Moody’s Investors Service, Inc. or Standard & Poor’s Ratings Services, a division of The McGraw-Hill Company, Inc., and (ii) no such organization shall have publicly announced that it has under surveillance or review its rating of any debt securities, including the Securities, of the Parent or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) and (iii) no such organization has publicly announced that the Parent or any of its subsidiaries has been placed on negative outlook.

 

(i)             No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date prevent the issuance or sale of the Securities.

 

(j)             The Indenture shall have been duly executed and delivered by the Company, the Guarantors and the Trustee; the Securities shall have been duly executed and delivered by the Company and duly authenticated by the Trustee; and the Guarantees shall have been duly executed and delivered by the Guarantors.

 

(k)            The Dollar Notes shall be eligible for clearance and settlement through DTC.

 

(l)             The Euro Notes shall be eligible for clearance and settlement through the facilities of Euroclear Bank S.A./N.V. and Clearstream Banking S.A.

 

The Company shall use all reasonable endeavors to procure the fulfillment of the conditions set out in this Section 8 by the times and dates stated herein.

 

If any of the conditions hereinabove provided for in this Section 8 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Underwriters hereunder may be terminated by a majority of the Representatives, by notifying the Company of such termination in writing at or prior to the Closing Date.

 

In such event, the Parent, the Intermediate Guarantors, the Company and VMIH and the Underwriters shall not be under any obligation to each other (except to the extent provided in Sections 7, 9 and 10 hereof).

 

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9.              (a)            The Company and the Guarantors will jointly and severally indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, the Time of Sale Information or, to the extent not included in the preceding items, any information that was included in the Registration Statement, any Preliminary Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, or the Time of Sale Information which is required to be filed by the Company pursuant to section 433(d) of the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or arise out of or are based upon any action taken by any Underwriter at the Company’s written request with respect to compliance with state securities laws within the United States (including delivery of the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information by, or the making of any offers and sales through, the Underwriters), and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred, provided , however , that the Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information in reliance upon and in conformity with the Underwriter Information.

 

(b)            Each Underwriter, severally but not jointly, will indemnify and hold harmless the Company and the Guarantors against any losses, claims, damages or liabilities to which the Company or the Guarantors may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or

 

23

 

any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information in reliance upon and in conformity with the Underwriter Information.

 

(c)            Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; provided , that the omission so to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) except to the extent it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure and, provided further , that the failure to notify the indemnifying person shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection.  In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation.  No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

 

(d)            If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other from the offering of the Securities.  If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted

 

24

 

in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations.  The relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the sale of Securities (before deducting expenses) received by the Company, as set forth in the table on the cover page of the Prospectus, bear to the total underwriting discounts and commissions received by the Underwriters, as set forth in the table on the cover page of the Prospectus.  The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Company and the Guarantors and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d).  The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the total discounts, commissions and other compensation received by such Underwriter under this Agreement, less the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.

 

(e)            The obligations of the Company and the Guarantors under this Section 9 shall be in addition to any liability which the Company and the Guarantors may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.

 

10.            (a)            The Company and the Guarantors will jointly and severally indemnify and hold harmless Barclays Capital Inc., in its capacity as QIU, against any losses, claims, damages or liabilities, joint or several, to which the QIU may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary

 

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Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information or, to the extent not included in the preceding items, any information that was included in the Registration Statement, any Preliminary Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, or the Time of Sale Information which is required to be filed by the Company pursuant to section 433(d) of the Act, (ii) arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or arise out of or (iii) any action taken or omission to act or alleged action taken or omission to act by Barclays Capital Inc. as QIU in connection with any transaction contemplated in this Agreement or undertaken in connection with the authorization, issuance, sale, preparation and delivery of the Securities, and will reimburse the QIU for any legal or other expenses reasonably incurred by the QIU in connection with investigating or defending any such action or claim as such expenses are incurred, provided , however , that the Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon the gross negligence or bad faith of Barclays Capital Inc. in performing the services as QIU and, provided further , that the Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information in reliance upon and in conformity with the Underwriter Information.

 

(b)            Each Underwriter, severally but not jointly, will indemnify and hold harmless Barclays Capital Inc., in its capacity as QIU, against any losses, claims, damages or liabilities to which the QIU may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus Supplement, any Final Prospectus Supplement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information, (ii) arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) any action taken or omission to act or alleged action taken or omission to act by Barclays Capital Inc. as QIU in connection with any transaction contemplated in this Agreement or undertaken in connection with the authorization, issuance, sale, preparation and delivery of the Securities, and will reimburse the QIU for any legal or other expenses reasonably incurred by the QIU in connection with investigating or defending any such action or claim as such expenses are incurred, provided , however , (A) in the case of (i) and (ii) above, only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Prospectus (or

 

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any amendment or supplement thereto), any Is