Common Terms Deed Poll, dated as of April 10, 2012, made by Foxtel Management Pty Ltd and the other parties thereto acting as initial guarantors in favor of the finance parties defined therein

Table of Contents

Definitions and interpretation

Definitions

PricewaterhouseCoopers;

KPMG;

Ernst & Young;

Deloittes; or

such other firm of chartered accountants as is approved by each Financier Representative (acting reasonably).

any consent, registration, filing, agreement, notice of non-objection, notarisation, certificate, licence, approval, permit, authority or exemption; or

in relation to anything which a Government Agency may prohibit or restrict within a specific period, the expiry of that period without intervention or action or notice of intended intervention or action.

as a borrower under a credit or other borrowing facility made available to it under that Finance Document;

as the person for whose account a Guarantee is issued under that Finance Document;

if that Finance Document is a Swap Agreement, as the counterparty under that Swap Agreement and any transaction entered into under that Swap Agreement; or

as the counterparty under that Finance Document,

occurs after the date of this Deed Poll; and

does not relate to a change in Tax imposed on the overall net income of a Financier.

an Event of Default; or

a Potential Event of Default.

interest;

Tax;

depreciation and amortisation;

any amounts relating to the impairment of assets;

items of income or expense which are considered to be outside the ordinary course of business and are regarded as ‘exceptional items’ or ‘significant items’ (or another term in place of that term) in the accounts; and

fair value adjustments of financial derivatives that are not effective hedging instruments under the Accounting Standards,

payment or satisfaction of it in full; and

during the 6 month period from and including the day after the payment or satisfaction, no person, including a Transaction Party, liquidator, provisional liquidator, administrator, official manager, trustee in bankruptcy, receiver, receiver and manager, other controller (as defined in the Corporations Act) or similar official, exercises a right to recoup or claim repayment of any part of the amount paid or satisfied, whether under the laws of preferences, fraudulent dispositions or otherwise.

bill of exchange, bond, debenture, note or similar instrument;

acceptance, endorsement or discounting arrangement;

Guarantee;

Swap Agreement;

finance or capital lease;

agreement for the deferral (of at least 120 days) of a purchase price or other payment in relation to the acquisition of any asset or service;

obligation to deliver goods or provide services paid for in advance by any financier; or

agreement for the payment of capital or premium on the redemption of any preference shares;

is present or future;

is actual, prospective, contingent or otherwise;

is at any time ascertained or unascertained;

is owed or incurred alone or severally or jointly or both with any other person; or

comprises any combination of the above.

this Deed Poll;

any Guarantee Assumption Deed Poll;

with respect to a Financier or its Financier Representative:

each document designated as such in a Finance Party Nomination Letter (which may include a Syndicated Facility Agreement or a Swap Agreement); and

each other document which FOXTEL and that Financier or its Financier Representative may from time to time agree is a Finance Document;

any Deed of Release; and

any other document or agreement entered into or given under or in connection with, or for the purpose of amending or novating, any of the above.

any Financier Representative; or

any Financier,

a statement of financial performance;

a statement of financial position; and

a statement of cashflows.

the person designated as that Financier’s Financier Representative in the relevant Finance Party Nomination Letter; or

if no such person is designated, that Financier.

the FOXTEL Partnership;

the FOXTEL Television Partnership;

FOXTEL Management Pty Limited, in its own capacity, as FOXTEL Agent and as agent for the FOXTEL Television Partnership;

FOXTEL Cable;

Customer Services;

Artist Services;

Racing Channel; and

each wholly-owned subsidiary of each of the entities described at paragraphs (a) to (g) above.

to provide funds (whether by the advance or payment of money, the purchase of or subscription for shares or other securities, the purchase of assets or services, or otherwise) for the payment or discharge of;

to indemnify any person against the consequences of default in the payment of; or

to be responsible for,

are present or future;

are actual, prospective, contingent or otherwise;

are at any time ascertained or unascertained;

are owed or incurred by or on account of any Transaction Party alone, or severally or jointly with any other person;

are owed to or incurred for the account of any Finance Party alone, or severally or jointly with any other person;

are owed to any other person as agent (whether disclosed or not) for or on behalf of any Finance Party;

are owed or incurred as principal, interest, fees, charges, taxes, duties or other imposts, damages (whether for breach of contract or tort or incurred on any other ground), losses, costs or expenses, or on any other account;

are owed to or incurred for the account of any Finance Party directly or as a result of:

the assignment or transfer to any Finance Party of any debt or liability of any Transaction Party (whether by way of assignment, transfer or otherwise); or

any other dealing with any such debt or liability;

are owed to or incurred for the account of a Finance Party before the date of this Deed Poll, or before the date of any assignment of any Finance Document to any Finance Party by any other person or otherwise; or

comprise any combination of the above.

any Initial Guarantor; or

any Additional Guarantor,

all trade secrets, confidential information, know-how, patents, trade marks, designs, service marks, business names, copyright and computer programmes which are material to the Business; and

any interest (including by way of licence) in any of the above,

is EBITDA for that period; and

is Interest Service for that period.

discount on a Bill or other instrument;

fees and amounts incurred on a regular or recurring basis, such as line fees; and

capitalised amounts of the same or similar name to the foregoing.

the aggregate amount of all Interest Expenses, rentals, any other recurrent payments of a similar nature (including gross-ups and increased cost payments) and any other recurring fees, costs and expenses paid during that period, in each case under or in relation to any Finance Debt of any member of the FOXTEL Group which shall not include any such payments in respect of transactions between any 2 members of the FOXTEL Group;

the net amount of any difference between payments by or to a Transaction Party under the Swap Agreements relating to interest rates during that period.

the ability of a Transaction Party to perform any of its obligations (other than any immaterial obligation) under any Finance Document;

the rights and remedies of a Finance Party under the Finance Documents;

the validity or enforceability of the whole or any material part of a Finance Document;

the assets, business, operations or financial condition of the FOXTEL Group as a whole.

any Finance Document;

each Establishment Agreement; and

any other document as agreed by FOXTEL and a Financier Representative.

in relation to a Transaction Party or a Shareholder, a director or a secretary, or a person notified to be an authorised officer, of the Transaction Party or Shareholder (as the case may be) or in the case of the FOXTEL Partnership and the FOXTEL Television Partnership, a director or a secretary or a person notified to be an authorised officer of the FOXTEL Agent; and

in relation to a Finance Party, any person whose title includes the word ‘Director’, ‘Managing Director’, ‘Head’, ‘Executive’, ‘Manager’ or ‘Vice President’, and any other person appointed by the Finance Party to act as its authorised officer for the purposes of the Finance Documents.

Sky Cable; or

Telstra Media.

a lien arising by operation of law in the ordinary course of its business securing:

an obligation that is not yet due; or

if due but unpaid, indebtedness which is being contested in good faith;

retention of title arrangements entered into in the ordinary course of its ordinary business for a period of less than 120 days;

an Encumbrance over or affecting any asset acquired by a member of the FOXTEL Group after the date of this Deed Poll if:

it was not created in contemplation of the acquisition of that asset by a member of the FOXTEL Group;

the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the FOXTEL Group; and

it is removed or discharged within 3 months of the date of acquisition of such asset;

an Encumbrance over or affecting any asset of an entity which becomes a member of the FOXTEL Group after the date of this Deed Poll, where the Encumbrance is created prior to the date on which that entity becomes a member of the FOXTEL Group, if:

it was not created in contemplation of the acquisition of that entity by a member of the FOXTEL Group;

the principal amount secured has not been increased in contemplation, or since the acquisition, of that asset by a member of the FOXTEL Group; and

it is removed or discharged within 3 months of the date of acquisition of such entity;

any other Encumbrance securing Finance Debt provided the aggregate principal amount of Finance Debt having the benefit of all such Encumbrances and any Permitted Financial Accommodation referred to in paragraph (g) of that definition does not exceed 10% of Total Assets of the FOXTEL Group at that time; or

an Encumbrance created or existing with the consent of each Financier Representative.

under the Finance Documents;

to another Transaction Party or a member of the FOXTEL Group;

which is funded by Equity;

in respect of the performance of the obligations of another Transaction Party or a member of the FOXTEL Group;

with each Financier Representative’s prior written consent;

to customers in the ordinary course of business and on arms length commercial terms provided that such financial accommodation does not constitute consumer credit which is available to its customers generally and is regulated by the National Credit Code; or

otherwise where the aggregate principal amount provided and any Finance Debt secured by a Permitted Encumbrance referred to in paragraph (e) of that definition does not exceed 10% of Total Assets of the FOXTEL Group at that time.

Telstra;

News; or

CMH.

any tax including the GST, levy, charge, impost, duty, fee, deduction, compulsory loan or withholding; or

any income, stamp or transaction duty, tax or charge,

is Total Debt on that Calculation Date; and

is EBITDA for the Calculation Period ending on that Calculation Date.

FOXTEL;

a Borrower;

a Guarantor; or

any other Transaction Party, now or in the future, defined as such in a Finance Document.

Interpretation

words importing the singular include the plural and vice versa;

words importing a gender include any gender;

other parts of speech and grammatical forms of a word or phrase defined in this Deed Poll have a corresponding meaning;

an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;

a reference to any thing (including any right) includes a part of that thing but nothing in this clause 1.2(e) implies that performance of part of an obligation constitutes performance of the obligation;

a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, a Finance Document and a reference to a Finance Document includes any annexure, exhibit and schedule to that Finance Document;

a reference to a statute, regulation, proclamation, ordinance or by law includes all statutes, regulations, proclamations, ordinances or by laws amending, consolidating or replacing it, whether passed by the same or another Government Agency with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by laws issued under that statute;

a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;

a reference to a party to a document includes that party’s successors and permitted assigns;

a reference to an agreement other than a Finance Document includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;

a reference to an asset includes all property of any nature, including a business, and all rights, revenues and benefits;

a reference to liquidation includes official management, appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death;

a reference to a document includes any agreement in writing, or any certificate, notice, instrument or other document of any kind;

no provision of a Finance Document will be construed adversely to a party solely on the ground that the party was responsible for the preparation of that Finance Document or that provision;

a covenant or agreement on the part of two or more Transaction Parties binds them jointly and severally;

references to time are to Sydney time;

unless the contrary intention appears, any provision of a Finance Document which specifies a particular day on which a calculation is to be made or an obligation performed, will be construed as requiring that calculation to be made or that obligation to be performed at or before 5.00pm on that day;

a reference in a Finance Document to:

amendment includes a supplement, novation, restatement or modification and ‘amended’ is to be construed accordingly;

continuing, in relation to a Default, indicates a Default that has not been remedied to the satisfaction of the relevant Financier Representative (acting in good faith) or waived in writing in accordance with the terms of the relevant Finance Documents;

disposal includes a sale, assignment, grant, transfer, lease, declaration of trust or an act of similar effect; and

undertaking, assets and rights includes a reference to all real and personal property, choses in action, goodwill and uncalled and called, but unpaid capital;

a statement by a person that any information or matter is the case ‘to the best of its knowledge and belief means that such person has taken all reasonable care to ensure that such information or matter is in fact the case and that such person is not aware of any other information or matter that could affect the accuracy of such information or matter;

where an act is required to be performed promptly, it shall be performed within as short a period as reasonably possible from the moment when the act could reasonably be performed, taking into account all of the circumstances;

a Financial Ratio is finally determined when it is set out in a Compliance Certificate which has been delivered in accordance with this Deed Poll, and final determination will be construed accordingly;

for the purposes of:

making a representation or warranty;

complying with any notification requirement or other undertaking; or

determining whether a Default has occurred,

a reference to remedying an Event of Default includes overcoming its consequences.

Inclusive expressions

Business Day

Accounting Standards

Any accounting practice or concept relevant to the Finance Documents is to be construed or determined in accordance with the Accounting Standards.

If, in the reasonable opinion of FOXTEL or a Financier Representative, any changes after the date of this Deed Poll to Accounting Standards materially alter the effect of the Financial Ratios or the related definitions, FOXTEL and each Financier Representative will negotiate in good faith to amend the relevant Financial Ratios and definitions so that they have an effect comparable to that which the Financial Ratios or related definitions would have had under current Accounting Standards before the adoption of the relevant change or changes to Accounting Standards.

If the amendments are not agreed within 30 days of the date on which such changes to Accounting Standards take effect (or any longer period agreed between FOXTEL and each Financier Representative) then FOXTEL will provide with its Financial Reports any reconciliation statements (audited, where applicable) necessary to enable calculations based on Accounting Standards as they were before those changes and the changes will be ignored for the purposes of the Finance Documents.

Common terms

a term used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Deed Poll; and

if there is an inconsistency between this Deed Poll and any other Finance Document, this Deed Poll will prevail unless the other Finance Document includes words to the effect of “Despite the terms of the Common Terms Deed Poll”.

FOXTEL Agent

Limited Recourse to the Partners

Notwithstanding any other provisions of the Finance Documents (other than clause 1.8(d) below) the obligation of a Partner to pay any amount under any Finance Document (whether present, future or prospective) is limited to the extent that the amount can be satisfied out of its Partnership Property only.

Each Finance Party irrevocably and unconditionally releases all claims it may have against a Partner under or in connection with the Finance Documents except to the extent that the Partner is liable under clause 1.8(a).

No Finance Party shall have any claim against or recourse to the directors, officers or employees of a Partner, by operation of law or otherwise. Such recourse is irrevocably waived.

Common Terms Deed Poll

Nothing in clause 1.8(a) or 1.8(c) limits the liability of a Partner in respect of any loss, cost or expense suffered or incurred by any Finance Party as a result of:

the fraud or wilful default of that Partner or any of its directors, officers or employees under or in connection with the Finance Documents;

any breach of an undertaking given by it in:

clause 5.4 or 5.5 of this Deed Poll; or

any Subordination Deed to which it is individually expressed to be a party; or

a warranty or representation given by it in:

clause 4.1(a), 4.1(b), 4.1(c), 4.1(d), 4.1(e), 4.1(o), 4.1(q)(i), 4.1(s), 4.1(v) (in relation to clause 4.1(v) only, on the date of this Deed Poll or on a date on which any financial accommodation is made available or rolled over under a Finance Document) or 4.1(x) of this Deed Poll;

any Subordination Deed to which it is individually expressed to be a party,

Except to the extent that it is liable under clause 1.8(d), a Finance Party may satisfy its rights against a Partner arising from non payment of the Guaranteed Moneys only to the extent that such rights can be satisfied from the Partner’s Partnership Property only and no party may, in connection with the Guaranteed Moneys:

take any action against a Partner, its directors, officers or employees personally to recover any part of the Guaranteed Moneys which cannot be satisfied out of the Partnership Property of the relevant Partner or obtain a judgement for the payment of money or damages by a Partner, its directors, officers or employees;

issue any demand under section 459E(1) of the Corporations Act (or any analogous provision under any other law) against a Partner;

apply for or prove in (except to the extent that the Partner is liable under clause 1.8(a)) the winding up of a Partner;

levy execution or take any action against any asset of a Partner (other than the Partnership Property of that Partner) to recover any of the Guaranteed Moneys; or

apply for the appointment of a receiver to any of the assets of a Partner (other than the Partnership Property of that Partner),

Despite anything in, or in connection with, the Finance Documents, each Finance Party agrees that:

claims under or in connection with the Finance Documents are not claims to which the Telstra Deed of Cross Guarantee applies in any way; and

it may not claim or attempt to claim to have any rights under, or make any claim or seek to enforce any rights, in connection with the Telstra Deed of Cross Guarantee.

To avoid doubt, nothing in this clause 1.8 prevents or limits any party from obtaining a declaration concerning any of the Finance Documents, an injunction or other order restraining any breach of a Finance Document or otherwise in relation to the Partnership Property of a Partner. This clause operates as a release and a covenant not to sue and may be pleaded in bar to any action brought in breach of it.

No Finance Party in the exercise of any right, power, authority, discretion or remedy conferred on it by any Finance Document or any applicable law, including any voting rights under the Finance Documents, nor any other person appointed by any Finance Party under the Finance Documents has the power or authority to incur obligations binding on a Partner other than obligations the extent and enforcement of which are limited in the same manner as the extent and enforcement of a Partner’s obligations under the Finance Documents are limited by this clause 1.8.

No Finance Party may appoint any person with the power or authority to incur obligations binding on a Partner unless:

the authority of that person is limited in accordance with this clause 1.8; and

the person so appointed signs an agreement acknowledging the limitation.

This clause 1.8 applies despite any other provision in any document or any other thing and in the event of any inconsistency between this clause 1.8 and another provision of a Finance Document, this clause 1.8 prevails.

Deed Poll

Finance Parties and Finance Documents

This Deed Poll is given by the Transaction Parties in favour of the Finance Parties from time to time. Each Finance Party has the benefit of and may enforce this Deed Poll even though it is not a party to, or is not in existence at the time of execution and delivery of this Deed Poll, in relation to the Finance Debt to which that Finance Party is entitled and each Finance Document under which that Finance Party has rights, benefits or obligations.

Each undertaking in this Deed Poll is made in favour of the Finance Parties.

The benefit and obligations of this Deed Poll may be extended to any other person (and such shall person shall become a Finance Party) in relation to any other document (and such document shall become a Finance Document), by FOXTEL signing and delivering to that Financier (or, if applicable, its Financier Representative) a Finance Party Nomination Letter.

Each Transaction Party (other than FOXTEL) irrevocably authorises FOXTEL to sign and deliver a Finance Party Nomination Letter nominating a document as a Finance Document, a party as a Financier or a party as a Financier Representative and acknowledges and confirms that the benefit of this Deed Poll will extend to any such party.

Removal of benefit for particular Finance Party

that Finance Party has been Finally Paid;

that Finance Party is not committed to providing further financial or other accommodation to any Transaction Party pursuant to any Finance Document; and

if requested by FOXTEL and agreed in writing by the relevant Finance Party.

Power of attorney

Each Transaction Party (other than FOXTEL) irrevocably appoints FOXTEL as its attorney (Attorney) to do anything which the Transaction Party may do (including to execute any document on its behalf) under or in relation to any Finance Document including to execute and deliver any document amending or supplementing this Deed Poll.

Without limitation, the Attorney may at any time delegate the Attorney’s powers (including delegation).

Syndicated Facility Agreements

any notice, consent, direction, opinion, approval, waiver, variation, agreement or communication which may be given, or which is required to be given either by or to a Financier under this Deed Poll may be given by, and shall be given to, the relevant Financier Representative (on behalf of each Financier under that Syndicated Facility Agreement) and if so given, shall, for the purposes of this Deed Poll, be regarded as having been given to or by each such Financier;

the parties acknowledge and agree that the relevant Financier Representative under that Syndicated Facility Agreement in giving any such notice, consent, direction, approval, waiver, variation, agreement or other communication or forming any opinion, will be acting on the instructions of the Financiers under and in accordance with that Syndicated Facility Agreement, and references to “acting

references in this Deed Poll to “a Financier” or “the Financier” shall be construed accordingly.

Several application of Deed Poll

to apply to each such Relevant Transaction separately;

such that the representations, warranties, undertakings, events of default and other provisions apply to that Relevant Transaction separately and gives each Finance Party to that Relevant Transaction rights in relation to that Relevant Transaction separately; and

such that each reference to “each Financier Representative” or “the Financier Representatives” means the relevant Financier Representative in respect of the Relevant Transaction.

Payments

Payments

in Same Day Funds;

in the relevant currency; and

not later than 11.00am (Sydney time) on the due date,

Payments on a Business Day

Appropriation of payments

Except where clause 3.3(b) applies, all payments made by a Transaction Party under a Finance Document may be appropriated as between principal, interest and other amounts as the relevant Financier Representative (acting in accordance with the relevant Finance Document) determines or, failing any determination, in the following order:

first, towards reimbursement of all fees, costs, expenses, charges, damages and indemnity payments due and payable by that Transaction Party under that Finance Document;

second, towards payment of interest due and payable under that Finance Documents; and

third, towards repayment or prepayment of the principal amount outstanding under that Finance Document.

Any appropriation under clause 3.3(a) overrides any appropriation made by a Transaction Party.

Payments in gross

without any set off, counterclaim or condition; and

without any deduction or withholding for any Tax or any other reason, unless, and without limiting the operation of clause 3.5, the Transaction Party is required to make a deduction or withholding by applicable law.

Additional payments

any Transaction Party is required to make a deduction or withholding in respect of Tax (other than Excluded Tax) from any payment to be made to a Finance Party under any Finance Document; or

a Finance Party is required to pay any Tax (other than Excluded Tax) in respect of any payment it receives from a Transaction Party or a Financier Representative under any Finance Document,

indemnifies each Finance Party against that Tax; and

must pay to each Finance Party an additional amount which the relevant Financier Representative determines to be necessary to ensure that each Finance Party receives when due a net amount (after payment of any Tax other than Excluded Tax in respect of each additional amount) that is equal to the full amount it would have received if a deduction or withholding or payment of Tax had not been made.

Taxation deduction procedures

the Transaction Party must pay the amount deducted or withheld to the appropriate Government Agency as required by law; and

the Transaction Party must:

use reasonable endeavours to obtain a payment receipt from the Government Agency (and any other documentation ordinarily provided by the Government Agency in connection with the payment); and

within 2 Business Days after receipt of the documents referred to in clause 3.6(b)(i), deliver copies of them to the relevant Financier Representative.

Amounts payable on demand

Rounding

Representations and warranties

Representations and warranties

(status): it is a corporation registered (or taken to be registered) and validly existing under the laws of the jurisdiction of its incorporation:

(power): it has the power and authority to:

enter into and perform its obligations under and to carry out the transactions contemplated by the Material Documents to which it is expressed to be a party; and

own its assets and to carry on its business as now conducted;

(authorisations): it has taken all necessary action to authorise the entry into, delivery and performance of the Material Documents to which it is expressed to be a party and to carry out the transactions contemplated by those documents;

(documents binding): each Material Document to which it is expressed to be a party constitutes its legal, valid, binding and enforceable obligation and is enforceable in accordance with its terms subject to laws generally affecting creditors’ rights and to principles of equity;

(transactions permitted): the execution, delivery and performance by it of each Material Document to which it is expressed to be a party and each transaction contemplated under that document did not and will not breach or result in a contravention of:

any law, treaty, judgement, ruling, order, regulation or decree of a Government Agency binding on it or Authorisation;

its constitution or other constituent documents; or

any Encumbrance or material agreement which is binding on it or its assets,

create or impose any Encumbrance on any of its assets; or

allow a person to accelerate or cancel an obligation with respect to Finance Debt or constitute an event of default, cancellation event, prepayment event or similar event (whatever called) under an agreement relating to Finance Debt, whether immediately or after notice or lapse of time or both;

(financial information): its most recent Financial Reports or accounts which it has furnished to a Financier Representative:

give a true and fair view of the financial condition and state of affairs of it and its Subsidiaries as at the date they were prepared; and

were prepared in accordance with the Accounting Standards (except to the extent disclosed in the accounts) and applicable laws;

(no change in affairs): there has been no change in its or its Subsidiaries’ state of affairs since the end of the accounting period to which the Financial Reports referred to in clause 4.1(f) relate which has had or would be reasonably likely to have a Material Adverse Effect;

(no litigation): except as disclosed in full to each Financier Representative in writing before the date of this Deed Poll, there is no litigation, arbitration, Tax claim, dispute or administrative or other proceeding current or, to the best of its knowledge and belief, threatened, which:

in any way questions its power or authority to enter into or perform its obligations under any Material Document to which it is expressed to be a party; or

would be reasonably likely to result in the occurrence of an Insolvency Event or to have a Material Adverse Effect;

(no default):

it is not in default; and

nothing has occurred which constitutes an event of default, cancellation event, prepayment event or similar event (whatever called),

a material provision of a Material Document to which it is expressed to be a party except where such default or event has been disclosed in full to each Financier Representative in writing; or

any document or agreement binding on it or its assets where such default or event would be reasonably likely to have a Material Adverse Effect;

(Authorisations): each Authorisation:

which is required in relation to the execution, delivery and performance by it of the Material Documents to which it is expressed to be a party and the transactions contemplated by those documents;

which is required in relation to the validity and enforceability of those documents; or

which is material to the conduct of the Business as now conducted,

(Intellectual Property): it owns or has the right and licence to use the Intellectual Property where failure to do so would or is reasonably likely to have a Material Adverse Effect;

(disclosure): all:

factual information (other than assumptions, estimates or forecasts) provided by it or on its behalf to any Finance Party (including for the purposes of any information memorandum prepared in connection with syndication) was, to the best of its knowledge and belief, true in all material respects and not materially misleading (by omission or otherwise) as at the time it was provided or as at the date stated; and

assumptions, estimates and forecasts provided by it or on its behalf to any Finance Party in writing were prepared in good faith with due care and diligence and were based on all relevant information known to it at the time when the materials were provided;

(information disclosed): all information of which it is aware which is, on the date of a Financier signing a Finance Document under which it agrees to provide financial accommodation to a Transaction Party:

material to the Business or to the decision of a reasonable financial institution to enter into any Finance Documents to which a Finance Party is expressed to be a party; or

reasonably likely to materially and adversely affect the business, assets or financial condition of any Transaction Party,

(copies of documents): all copies of documents (including the Financial Reports or accounts and Authorisations) given by it or on its behalf to any Financier Representative are true copies which are accurate and complete in all material respects;

(title): it is the sole legal and beneficial owner of the assets included in its Financial Reports and accounts and those assets are free of Encumbrances, other than Permitted Encumbrances;

(law):

it has complied with; and

the Business is in compliance with,

(not a trustee): it does not:

enter into any Finance Document as trustee of any trust and none of the Partnership Property is held by a Partner as trustee of any trust; or

hold any assets as the trustee of any trust;

(corporate tree):

as at the date of this Deed Poll, the Shareholders legally and beneficially own and control (directly or indirectly) 100% of the FOXTEL Group;

its only Subsidiaries are listed in the Group Structure Diagram; and

the Group Structure Diagram is true and correct in all respects and does not omit any material information or details;

(immunity from suit): it does not, and its assets do not, have immunity from the jurisdiction of a court or from legal process;

(no filings or Taxes): it is not necessary or desirable to ensure that any Finance Document is legal, valid, binding or admissible in evidence, that any Finance Document be filed or registered with any Government Agency, or that any Tax be paid;

(no Event of Default): no Event of Default is continuing or will result from the provision of any financial accommodation under a Finance Document;

(solvency):

it is able to pay its debts as they fall due and has not suspended making payment of its debts generally, other than debts owing in respect of Subordinated Debt; and

no Insolvency Event has occurred and is continuing in relation to it or will occur as a result of it entering into any Finance Document to which it is expressed to be a party;

(ranking of obligations): its obligations under the Finance Documents (in all respects and at all times) rank at least equally in right and priority of payment with all its other unsecured and unsubordinated obligations (actual or contingent, present or future) except for obligations mandatorily preferred by law;

(commercial benefit): the entering into and performance by it of its obligations under the Material Documents to which it is expressed to be a party is for its commercial benefit and is in its commercial interests;

(own enquiries): it has relied on its own investigations and enquiries regarding the transactions contemplated by the Finance Documents and has not relied on any information, advice or opinion (including as to interest rates, Swap Agreements or exchange rates) given or offered by or on the Financier’s behalf even if in answer to any enquiry by or for it;

(Insurances):

all of the Insurances have been effected and are valid and binding; and

all premiums due have been paid and nothing has been done or omitted to be done which has made or could make any such policy void or voidable or reduce the insurer’s liability under them;

(Material Adverse Effect): it is not aware of any event or circumstance which has had or is reasonably likely to have a Material Adverse Effect;

(Taxes): it has paid all Taxes due and payable by it other than Taxes which are being contested in good faith and otherwise in accordance with clause 5.11.

Survival and repetition of representations and warranties

survive the execution of each Finance Document; and

other than under clause 4.1 (m), are repeated in favour of each Financier with reference to the facts and circumstances then subsisting on each date on which any financial accommodation is made available or rolled over by that Financier under that Financier’s Finance Documents.

Reliance by Finance Parties

Undertakings

Provision of information and reports

(Annual Financial Report): promptly after the same are available and in any event within 90 days after the end of the fiscal year of the FOXTEL Group, copies of an audited Financial Report of the FOXTEL Group (on an aggregated basis) for such year, setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with the Accounting Standards, where applicable for special purpose accounts, and accompanied by an opinion thereon of independent public accountants of recognized international standing, which opinion shall state that such Financial Report gives a true and fair view of the financial position of the FOXTEL Group’s financial performance for such fiscal year, and that the audit related to such Financial Report has been made in accordance with Australian Accounting Standards (as such term is used and defined in such accountant’s opinion, and as the wording of such accountants’ opinion may be updated or amended from time to time in accordance with industry practice and standards), where applicable for special purpose accounts together with a Compliance Certificate (which has been audited in respect of the matters referred to in paragraphs (a), (b) and (c) and (1) and (2) of that certificate) in respect of the Calculation Period ending at the end of that financial year;

(half yearly management accounts): promptly and no later than 30 Business Days after the end of each financial half year, copies of the unaudited half-yearly management accounts of the FOXTEL Group (on an aggregated basis) for that financial half year together with evidence satisfactory to each Financier Representative that the accounts have been reviewed and approved by 2 directors of FOXTEL;

(Compliance Certificate): promptly and no later than 30 Business Days after the end of each calendar quarter, a Compliance Certificate signed by 2 directors of FOXTEL;

(Group Structure Diagram): an updated Group Structure Diagram on each occasion that the then current Group Structure Diagram becomes incorrect or misleading;

(Approved Hedging Policy): promptly after its approval by the directors of FOXTEL, a copy of any amended Approved Hedging Policy; and

(other information): promptly after a request is made, any other information which a Financier Representative reasonably requests in relation to the Business or the financial condition of FOXTEL or any member of the FOXTEL Group.

Financial Reports and accounts

(proper accounts):

ensure that the accounts it provides under clause 5.1 are prepared in accordance with the Accounting Standards (except to the extent disclosed in the accounts) and applicable laws; and

keep accounting records which give a true and fair view of its financial condition and state of affairs;

(financial year): not change its financial year without prior notice to each Financier Representative;

(Auditors): not change its Auditors other than to an Approved Auditor; and

(basis of preparation):

notify each Financier Representative if, at any time, it changes or proposes to change the reference periods or the basis upon which its Financial Reports or accounts are prepared; and

if a Financier Representative is of the opinion (acting reasonably) that the change is material and so requires, provide to that Financier Representative:

a description of all of the adjustments which are required to be made to the Financial Reports or accounts, so that the Financial Reports and accounts reflect the basis upon which they were prepared before such change was made; and

sufficient information, in a form and substance reasonably required by the relevant Financier Representative, to enable the Financiers to determine whether the Financial Ratios have been complied with and to make an accurate comparison between the financial position indicated in those financial statements and the financial position indicated in the Financial Reports prepared and presented before such change was made.

Notices

any Default occurring;

any proposal of any Government Agency to compulsorily acquire any of its property with an aggregate value in excess of $10,000,000;

any litigation, arbitration, Tax claim, dispute or administration or other proceeding being commenced or threatened which:

in any way questions its power or authority to enter into or perform its obligations under any Material Document to which it is expressed to be a party;

involves a potential liability for the Transaction Party (whether by itself or in combination with another person) in excess of $10,000,000 or, when aggregated with other claims, disputes or proceedings, $25,000,000 (provided that, where notice has been given under this paragraph because the relevant threshold has been exceeded, further notifications under this paragraph are only required as further $10,000,000 increments above the relevant threshold are reached); or

would be reasonably likely to result in the occurrence of an Insolvency Event or to have a Material Adverse Effect;

any breach of or default or other event or circumstance under, any Material Document which, with notice, time or both could lead to its termination, revocation, cancellation, suspension or variation;

any change in its Officers, together with a specimen signature of any new Officer appointed and, where requested by a Financier Representative, evidence satisfactory to that Financier Representative of the authority of any Officer; and

any intention by it to exercise any right, power or remedy under any Material Document as a consequence of any default where termination of that document is reasonably likely to have a Material Adverse Effect.

Disposal of assets

by way of the grant of a Permitted Encumbrance;

by disposal to another member of the FOXTEL Group;

disposals in the ordinary course of day to day trading at arms length;

disposals of assets in exchange for other assets of comparable value and utility or where the proceeds of such disposal are, within 90 days, used to acquire other assets of comparable value for use in relation to the Business;

disposals of worn out, obsolete or redundant assets;

disposals on arms length terms of assets not required for the efficient operation of the Business;

disposals on arms length terms of other assets not otherwise permitted under this clause provided that where the aggregate net after tax consideration received in respect of such disposals in any 12 month period exceeds 10% of the Total Assets of the FOXTEL Group, FOXTEL will ensure that within 120 days such excess is applied:

in purchasing assets relevant to the Business; or

in repayment or prepayment of the principal amount outstanding under the Finance Documents and any other Finance Debt the FOXTEL Group is required to repay or prepay, rateably in proportion to the outstanding principal amount of all such debt, and cancellation of the corresponding undrawn commitment under that Finance Document; or

with the prior written consent of each Financier Representative (which consent must not be withheld in the case of a disposal by a Partner of any of its interest in the FOXTEL Partnership or the FOXTEL Television Partnership where that disposal does not result in an Event of Default under clause 6.1(p)).

Events of Default

Events of Default

(failure to pay): a Transaction Party fails to pay or repay any part of the Guaranteed Moneys within 3 Business Days of its due date;

(Financial Ratios): a Transaction Party breaches a Financial Ratio;

(failure to perform): a Transaction Party fails to perform any other undertaking or obligation of it under any Finance Document and, if the failure is capable of remedy, the Transaction Party does not remedy the failure within 14 Business Days of the earlier of the date the Transaction Party:

becomes aware of the failure; or

receives notice from a Financier Representative to the Transaction Party specifying the failure;

(misrepresentation): any representation or warranty or statement of a Transaction Party under a Finance Document is incorrect or misleading in a material respect when made or repeated and, if the circumstances which result in such representation, warranty or statement being incorrect or misleading are capable of remedy, those circumstances are not remedied within 14 Business Days of the earlier of the date the Transaction Party:

becomes aware of; or

receives notice from a Financier Representative to the Transaction Party specifying,

(cross default): any Finance Debt of a Transaction Party in an amount in excess of $25,000,000:

is not paid when due (after taking into account any applicable grace period); or

becomes due and payable, or becomes capable of being declared due and payable, before the scheduled date for payment other than because of the exercise by the Transaction Party of a voluntary right of prepayment or termination and:

the creditor is not paid; or

the creditor’s right to be repaid prematurely is not rescinded or annulled,

(administration, winding up, arrangements, insolvency etc): any of the following occur:

an administrator is appointed, or any steps are taken to appoint an administrator, to a Transaction Party;

a liquidator or a provisional liquidator is appointed, or any steps are taken to appoint a liquidator or a provisional liquidator in respect of a Transaction Party (unless, in the case of an application or step taken, the application or step taken is frivolous or vexatious and the application or step taken is withdrawn within 20 Business Days);

except for the purpose of a solvent reconstruction, restructure or amalgamation of a Transaction Party carried out with the prior written consent of each Financier Representative, an application or an order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting, an application to a court is made or other steps are taken:

for the winding up or dissolution of any Transaction Party; or

in relation to the entry into of any arrangement, composition or compromise with, or assignment for the benefit of, any of its creditors or a class of them,

a Transaction Party:

ceases, suspends or threatens to cease or suspend the conduct of the Business, without the prior written consent of each Financier Representative;

is, or under the Corporations Act is presumed, deemed or taken to be, insolvent (other than as the result of a failure to pay a debt or claim the subject of a good faith dispute or where it is otherwise able to prove to each Financier Representative that it is solvent);

is, or states that it is, insolvent or unable to pay its debts when they are due;

stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

takes any steps to obtain protection or is granted protection from its creditors under the laws of any applicable jurisdiction;

is wound up or dissolved (other than for the purpose of a reconstruction or amalgamation while solvent on terms approved by each Financier Representative in writing before the relevant event occurs);

is deregistered, or any steps are taken for its deregistration; or

implements a creditors scheme of arrangement with any person;

(enforcement against assets):

an official manager, administrator, receiver, receiver and manager, other Controller, trustee in bankruptcy or any similar official is appointed, or any steps are taken to appoint any such person, to;

any Encumbrance is enforced or becomes capable of being enforced; or

a distress, attachment, execution or other process of a Government Agency is issued against, levied, entered upon or enforced over,

(judgment): a judgment in an amount exceeding $25,000,000 is obtained against a Transaction Party and is not set aside, satisfied or appealed (and if appealed, is not required to be paid as a consequence of the lodgement of that appeal) within 21 Business Days, or such later period as each Financier Representative agrees in writing;

(reduction of capital): without the prior consent of each Financier Representative (such consent not to be unreasonably withheld or delayed), a Transaction Party:

reduces its capital (including a purchase of its shares but excluding a Permitted Distribution or a redemption of redeemable shares);

passes a resolution to reduce its capital (excluding a Permitted Distribution or a redemption of redeemable shares) or to authorise it to purchase its shares or passes a resolution under chapter 2J of the Corporations Act 2001 or an equivalent provision; or

applies to a court to call any such meeting or to sanction any such resolution or reduction;

(analogous process): anything analogous to anything referred to in paragraphs (f) to (i) inclusive, or which has a substantially similar effect, occurs with respect to any Transaction Party under any law;

(vitiation of Finance Documents):

all or any material part of a Finance Document is terminated or is or becomes void, voidable, illegal, invalid, unenforceable or of limited force and effect; or

any party becomes entitled to terminate, rescind or avoid all or any material part of a Finance Document;

(vitiation of other documents):

all or any material part of a Material Document is terminated or is or becomes void, voidable, illegal, invalid, unenforceable or of limited force and effect and FOXTEL does not demonstrate to the satisfaction of each Financier Representative (acting in good faith) within 10 Business Days that such event will not have a Material Adverse Effect; or

unless FOXTEL demonstrates to the satisfaction of each Financier Representative (acting in good faith) within 10 Business Days that such event will not have a Material Adverse Effect, any Transaction Party breaches or is in default under any provision of a Material Document which breach or default gives rise to a right of termination or rescission under the relevant Material Document, and, where the Transaction Party is afforded a cure period under that Material Document in respect of that breach or default, the Transaction Party does not diligently seek to remedy that breach or default, or that breach or default is not remedied within that cure period. The Transaction Party must notify each Financier Representative in writing of the remedy being pursued by it and shall keep each Financier Representative regularly informed of its progress and it shall be an Event of Default if at any time the Transaction Party fails or ceases to diligently pursue that remedy;

(amendment of constitution): the constitution or other constituent documents of any Transaction Party is amended in a manner which adversely affects any Finance Party without each Financier Representative’s prior written consent;

(Authorisations): an Authorisation which is required or necessary for:

the performance by any Transaction Party of its obligations under any Material Document;

the validity and enforceability of any Material Document; or

the conduct of the Business, is:

repealed, revoked, terminated or expires; or

modified or amended,

(material adverse change): any other event or series of events occurs (including a material adverse change in the Business, assets or financial condition of any Transaction Party), which has had or is, in the opinion of the Financier Representatives (acting in good faith), reasonably likely to have a Material Adverse Effect;

(change of control): without the prior consent of each Financier Representative, the Shareholders (or any of them) cease to legally and beneficially own and control (directly or indirectly) at least 60% of the FOXTEL Group;

(compulsory acquisition):

all or any material part of the assets and undertaking of the FOXTEL Group is compulsorily acquired by or by order of a Government Agency or under law;

a Government Agency orders the sale, vesting or divesting of all or any material part of the assets and undertaking of the FOXTEL Group; or

a Government Agency takes a step for the purpose of any of the above,

(Subordinated Debt): any person providing Subordinated Debt breaches any material representation, warranty or undertaking given by it under the Subordination Deed; and

(Intellectual Property):

any Transaction Party ceases to own, or to have the right and licence to use, the Intellectual Property; or

any person claims or alleges that any Transaction Party is infringing its rights in relation to Intellectual Property,

Effect of Event of Default

At any time while an Event of Default is continuing, a Financier Representative may, and if so directed in accordance with the relevant Finance Documents must, by notice to FOXTEL declare that:

the Guaranteed Moneys are immediately due and payable to the relevant Finance Parties; or

the commitment of the relevant Financiers under the Finance Documents is cancelled,

FOXTEL must immediately repay the Guaranteed Moneys on receipt of a notice under clause 6.2(a)(i).

Financial Calculations

Guarantee

Guarantee

that payment, conveyance, transfer or transaction (or the void, voidable or unenforceable part of it); and

any release, settlement or discharge made in reliance on any thing referred to in clause 8.6(a)(iii),

Clause 8.6(a) applies whether or not any Indemnified Party knew, or ought to have known, of anything referred to in clause 8.6(a).

Indemnity for avoidance of Guaranteed Moneys

If any of the Guaranteed Moneys (or money which would have been Guaranteed Moneys if it had not been irrecoverable) are irrecoverable by any Indemnified Party from:

any Transaction Party; or

a Guarantor on the footing of a guarantee,

indemnify each Indemnified Party against any Loss suffered, paid or incurred by that Indemnified Party in relation to the non payment of that money; and

must pay to the relevant Financier Representative for the account of that Indemnified Party an amount equal to that Loss.

Clause 8.7(a) applies to the Guaranteed Moneys (or money which would have been Guaranteed Moneys if it had not been irrecoverable) which are or may be irrecoverable irrespective of whether:

they are or may be irrecoverable because of any event described in clause 8.12;

they are or may be irrecoverable because of any other fact or circumstance;

the obligations or liabilities or any of them relating to that money are void or illegal or avoided or otherwise unenforceable; and

any matters relating to the Guaranteed Moneys are or should have been within the knowledge of any Indemnified Party.

No obligation to marshal

any Encumbrance, Guarantee or other document or agreement held, at any time, by or on behalf of that or any other Indemnified Party; or

any money or asset which that Indemnified Party, at any time, holds or is entitled to receive.

Non exercise of Guarantors’ rights

Principal and independent obligation

This clause 8 is:

a principal obligation and is not to be treated as ancillary or collateral to any other right or obligation; and

independent of and not in substitution for or affected by any other guarantee or security which any Indemnified Party may hold in respect of the Guaranteed Moneys or any obligations of any Transaction Party or any other person.

This clause 8 is enforceable against a Guarantor:

whether or not any Indemnified Party has:

made demand on any Transaction Party (other than any demand specifically required to be given, or notice required to be issued, to a Guarantor under clause 8.2 or any other provision of a Finance Document);

given notice to any Transaction Party or any other person in respect of any thing; or

taken any other steps against any Transaction Party or any other person;

whether or not any Guaranteed Moneys are then due and payable; and

despite the occurrence of any event described in clause 8.12.

Suspense account

Each Indemnified Party may apply to the credit of a suspense account any:

amounts received under this clause 8;

dividends, distributions or other amounts received in respect of the Guaranteed Moneys in any liquidation; and

other amounts received from a Transaction Party or any other person in respect of the Guaranteed Moneys.

Each Indemnified Party may retain the amounts in the suspense account for as long as it determines and is not obliged to apply them in or towards satisfaction of the Guaranteed Moneys.

any breach of any Finance Document or any other document or agreement;

the acceptance of the repudiation of, or termination of, any Finance Document or any other document or agreement;

any Guaranteed Moneys being irrecoverable for any reason;

any disclaimer by any Transaction Party or any other person of any Finance Document or any other document or agreement;

any assignment, novation, assumption or transfer of, or other dealing with, any Powers or any other rights or obligations under any Finance Document or any other document or agreement;

the opening of a new account of any Transaction Party with any Indemnified Party or any transaction on or relating to the new account;

any prejudice (including material prejudice) to any person as a result of:

any thing done or omitted by any Indemnified Party, any Transaction Party or any other person;

any failure or neglect by any Indemnified Party or any other person to recover the Guaranteed Moneys from any Transaction Party; or

any other thing;

the receipt by any Indemnified Party of any dividend, distribution or other payment in respect of any liquidation;

the failure of any other Guarantor or any other person who is intended to become a co-surety or co-indemnifier of that Guarantor to execute this agreement or any other document; or

any other act, omission, matter or thing whether negligent or not.

Clause 8.12(a) applies irrespective of:

the consent or knowledge or lack of consent or knowledge, of any Indemnified Party, any Transaction Party or any other person of any event described in clause 8.12(a); or

any rule of law or equity to the contrary.

No competition

Until the Guaranteed Moneys have been fully paid and this clause 8 has been finally discharged, a Guarantor is not entitled to:

be subrogated to any Indemnified Party;

claim or receive the benefit of:

any Encumbrance, Guarantee or other document or agreement of which any Indemnified Party has the benefit;

any moneys held by any Indemnified Party; or

any Power;

either directly or indirectly to prove in, claim or receive the benefit of any distribution, dividend or payment arising out of or relating to the liquidation of any Transaction Party liable to pay the Guaranteed Moneys, except in accordance with clause 8.13(b);

make a claim or exercise or enforce any right, power or remedy by way of contribution against any Transaction Party liable to pay the Guaranteed Moneys; or

raise any defence or counterclaim in reduction or discharge of its obligations under this clause 8

If required by any Indemnified Party, a Guarantor must prove in any liquidation of any Transaction Party liable to pay the Guaranteed Moneys for all money owed to the Guarantor in accordance with the Indemnified Party’s instructions.

All money recovered by a Guarantor in breach of this clause 8.13 from any liquidation or from any Transaction Party liable to pay the Guaranteed Moneys must be promptly paid to the Financier Representatives for the account of their Financiers and only if it does not create or take effect as a security interest for the purposes of the PPSA, until so paid must be received and held in trust by the Guarantor for the Indemnified Parties to the extent of the unsatisfied liability of the Guarantor under this clause 8.

A Guarantor must not do or seek, attempt or purport to do anything referred to in clause 8.13(a).

Continuing guarantee

any settlement of account; or

the occurrence of any other thing,

remains in full force and effect until all the Guaranteed Moneys have been Finally Paid.

Variation

Judgments