Exhibit 10.2
TELEWEST COMMUNICATIONS NETWORKS LIMITED
SECURED CREDIT FACILITIES
SUMMARY OF PRINCIPAL TERMS AND CONDITIONS
The following summary contains basic summary information about the
Facilities. This summary may not contain all of the information or terms
that are contained in the Senior Facilities Agreement or the Second Lien
Facility Agreement.
CLOSING DATE: The date of first utilisation under the Senior
Facilities Agreement not to be later than 31
January 2005.
BORROWER: Telewest Communications Networks Limited ("TCN" or
the "BORROWER") and such other borrower as may be
provided for as contemplated by the Fees Letter.
PARENT: Telewest UK Limited ("TELEWEST UK").
ULTIMATE PARENT: Telewest Global, Inc. ("TELEWEST GLOBAL").
GROUP: Ultimate Parent and all of its subsidiaries,
including each member of the Target Group,
following a Merger Event.
TCN GROUP: TCN and its direct and indirect subsidiaries and
its associated partnerships (but, following a
Separation, excluding all or part of the Flextech
Group the subject of such Separation) and,
following an Integrated Merger Event, including
the Target Group.
Once all or part of the Flextech Group is
excluded, the excluded business shall
automatically be released from the guarantee and
security package and any sale of any part of the
Flextech Group shall be excluded from the
mandatory repayment provision.
GUARANTORS: Telewest UK and sufficient members of the TCN
Group as will be necessary to ensure that the
Borrower and the Guarantors constitute 95% of the
Consolidated Annualised TCN Group Net Operating
Cash Flow.
OBLIGORS: The Borrower and the Guarantors (the "OBLIGORS").
INSTRUCTING GROUP: In relation to each of the Senior Facilities
Agreement and the Second Lien Facility Agreement
any Lender or a group of Lenders to whom more than
66 2/3% of the aggregate amount outstanding under
the Senior Facilities or the Second Lien Facility
(as the case may be) are owed.
MANDATED LEAD Barclays Capital, BNP Paribas, Citigroup Global
ARRANGERS: Markets Limited, Credit Suisse First Boston,
Deutsche Bank AG London and Royal Bank of Scotland
(the "MANDATED LEAD ARRANGERS" or "MLAs").
BOOKRUNNERS: Barclays Capital, BNP Paribas, Citigroup Global
Markets Limited, Credit Suisse First Boston,
Deutsche Bank AG London and Royal Bank of Scotland
(the "BOOKRUNNERS").
FACILITY AGENT FOR [To Come] (the "SENIOR AGENT").
THE SENIOR LENDERS:
FACILITY AGENT FOR [To Come] (the "SECOND LIEN AGENT" and together
THE SECOND LIEN with the Senior Agent, the "AGENTS").
LENDERS:
SECURITY TRUSTEE: [To Come] (the "SECURITY TRUSTEE").
LENDERS: A group of additional lenders to be determined by
the MLAs with the consent of the Borrower.
SENIOR FACILITIES: The Senior Facilities will consist of a:
(i) 7-year amortizing term loan facility of a
maximum amount of pound 700,000,000 (the "A
FACILITY" or "TRANCHE A");
(ii) 8-year repayment multi-currency term loan
facility in a maximum amount of
pound 425,000,000 (the "B FACILITY" or
"TRANCHE B");
(iii)9-year repayment multi-currency term loan
facility in a maximum amount of
pound 325,000,000 (the "C FACILITY" or
"TRANCHE C" and, together with the A Facility
and the B Facility, the "SENIOR TERM
FACILITIES"); and
(iv) 7-year revolving loan facility in a maximum
amount of pound 100,000,000 (which shall
include an overdraft facility) (save as
availability thereunder is reduced from time
to time by an amount equal to the aggregate
principal amount of (1) any securitisation
programme which is a permitted disposal under
the Facilities Agreements, and (2) any amount
which would otherwise be required to be held
in a blocked account under the terms of the
Facilities Agreements (the "REVOLVING
FACILITY" and, together with the Senior Term
Facilities, the "SENIOR FACILITIES").
SECOND LIEN FACILITY: A 9 1/2 year bullet repayment multi-currency
second lien term loan facility in a maximum
amount of pound 250,000,000 (the "SECOND
LIEN FACILITY" and, together with the Senior
Term Facilities, the "TERM FACILITIES").
The Term Facilities together with the
Revolving Facility are referred to as the
"FACILITIES".
The Second Lien Facility will be documented
in a separate agreement on identical terms to
the Senior Facilities, save where otherwise
required by virtue of its second lien status.
AMOUNTS AND A FACILITY: Available in Sterling in a single
AVAILABLITY: drawing, with an amortization schedule as set
forth below:
Repayment Date Amount Repayable
-------------- ----------------
30 June 2005 pound 5,000,000
31 December 2005 pound 15,000,000
30 June 2006 pound 25,000,000
31 December 2006 pound 30,000,000
30 June 2007 pound 40,000,000
31 December 2007 pound 50,000,000
30 June 2008 pound 65,000,000
31 December 2008 pound 70,000,000
30 June 2009 pound 80,000,000
31 December 2009 pound 80,000,000
30 June 2010 pound 80,000,000
31 December 2010 pound 80,000,000
30 June 2011 pound 80,000,000
B FACILITY: Available in Euro, U.S. Dollars
and/or Sterling in a single drawing. Amounts
outstanding under the B Facility are due in
two equal installments payable 7 1/2 and 8
years after the date of the Senior Facilities
Agreement.
C FACILITY: Available in Euro, U.S. Dollars
and/or Sterling in a single drawing. Amounts
outstanding under the C Facility are due in
two equal installments payable 8 1/2 and 9
years after the date of the Senior Facilities
Agreement.
REVOLVING FACILITY. The Revolving Facility
will be available for drawing in Sterling,
subject to the utilisation in full of the
Term Facilities and will be available by way
of drawings or documentary credits
("DOCUMENTARY CREDITS"). The Revolving
Facility will be available until the day one
month prior to the final maturity date in
respect of the Revolving Facility, subject to
a cleandown provision to ensure that the
outstanding amounts under the Revolving
Facility are reduced to zero for a period of
at least five consecutive business days in
each annual period. After an Integrated
Merger Event, drawings and repayments under
the Revolving Facility shall be made in
accordance with the Pari Passu Intercreditor
Agreement. The Borrower also has the option
to cancel all or any portion of the Revolving
Facility at any time.
SECOND LIEN FACILITY: Available in Euro, U.S.
Dollars and/or Sterling in a single drawing.
Amounts outstanding under the Second Lien
Facility are due in one installment payable 9
1/2 years after the date of the Second Lien
Facility Agreement.
ANCILLARY FACILITIES: The Borrower may, subject to certain
conditions, request one or more of the
following specialised facilities: (i)
overdraft, automated payment, cheque drawing
or other current account facility, (ii)
forward foreign exchange facility, (iii)
derivatives facility, (iv) guarantee, bond
issuance, documentary or stand-by letter of
credit facility, (v) performance bond
facility and/or (vi) any other facility as
agreed upon in writing (each an "ANCILLARY
FACILITY").
Each Ancillary Facility will reduce the
commitments under the Revolving Facility by a
corresponding amount. The maximum amounts of
Revolving Facility which may be used by way
of Ancillary Facility is (pound)60,000,000.
PURPOSE: The Term Facilities shall be applied towards
the repayment of amounts outstanding under
and in connection with the existing Loan
Agreement dated 16 March 2001, as amended and
restated pursuant to a supplemental deed
dated 14 July 2004 and as further amended,
supplemented or modified from time to time
(the "EXISTING SENIOR CREDIT FACILITIES
AGREEMENT"), accrued interest, break costs
and any other fees and expenses associated
with this transaction. To the extent the Term
Facilities are insufficient to meet such
payments in full, a portion of the Revolving
Facility shall be applied towards such
purposes and the remainder of the Revolving
Facility shall be applied towards working
capital and general corporate purposes of the
TCN Group.
CONDITIONS First utilisation of the Facilities is
PRECEDENT TO FIRST conditional upon the receipt of, inter alia:
UTILISATION:
(i) customary corporate documentation and
resolutions;
(ii) necessary authorizations and
clearances;
(iii) annual audited financial statements of
the TCN Group for financial year ended
31 December 2003 and quarterly
unaudited financial statements of the
TCN Group for each financial quarter
ended after such date and at least 45
days prior to the Closing Date;
(iv) payment of all fees to the extent then
due under the terms of the Fees Letter
or the Agency Fee Letter (as defined
below);
(v) duly executed copies of the finance
documentation including a facilities
agreement for the Senior Facilities (a
"SENIOR FACILITIES AGREEMENT"), a
facility agreement for the Second Lien
Facility (a "SECOND LIEN FACILITY
AGREEMENT" and together with the
Senior Facilities Agreement, the
"FACILITIES AGREEMENTS"), an agency
fee letter (the "AGENCY FEE LETTER"),
intercreditor agreements and security
documentation (collectively the
"FINANCING DOCUMENTATION");
(vi) copy of the group structure chart;
(vii) legal opinions;
(viii) in the case of the Senior Facilities,
the Senior Agent being satisfied that
pound 250,000,000 (or such amount in
such currencies as may be available
under the Second Lien Facility
following exercise of the market flex
provision), will be drawn under the
Second Lien Facility before or
simultaneously with such utilisation;
(ix) in the case of the Second Lien
Facility, the Second Lien Agent being
satisfied that pound 1,450,000,000
(or such amount in such currencies as
may be available under the Senior Term
Facilities following exercise of the
market flex provision or as originally
denominated in other currencies) will
be drawn under the Senior Term
Facilities before or simultaneously
with such utilisation; and
(x) satisfactory evidence that the
Existing Senior Credit Facilities
Agreement will be repaid in full and
all security granted in respect
thereof has been or will be released
upon first drawdown under the
Facilities.
together with such other documents or
evidence as the Agents may reasonably request
or require.
SECURITY: The Senior Facilities will be secured by
first priority perfected liens over the
shares and substantially all of the assets of
the Borrower and each of the Guarantors
(collectively, the "COLLATERAL"), and the
Second Lien Facility will be secured by
second priority perfected liens over the
Collateral; provided in each case that, in
the case of Telewest UK, the Collateral shall
be limited to a pledge of the shares of the
Borrower and of any receivables from time to
time payable to Telewest UK by any member of
the TCN Group.
INTEREST RATES: TERM FACILITIES: Advances under the Term
Facilities will be the sum of EURIBOR (for
any Euro-denominated advance) or LIBOR (for
any advance denominated in another currency)
for the relevant interest period, the
applicable cost of complying with any reserve
requirements and the applicable margin
(either the "A FACILITY MARGIN", the "B
FACILITY MARGIN", the "C FACILITY MARGIN" or
the "SECOND LIEN FACILITY MARGIN").
The A Facility Margin, subject to Margin
Ratchet below, will be 2.25% per annum.
The B Facility Margin, subject to Margin
Ratchet below, will be 2.75% per annum.
The C Facility Margin will be 3.25% per
annum.
The Second Lien Facility Margin will be
determined based on market conditions as set
forth in the Fees Letter.
REVOLVING CREDIT FACILITY: Advances under the
Revolving Facility will be the sum of LIBOR
for the relevant period, the applicable cost
of complying with any reserve requirements
and the applicable margin which, subject to
Margin Ratchet below, will be 2.25% per annum
(the "REVOLVING FACILITY MARGIN").
The default interest shall be an additional
1.00% to the applicable margin.
MARGIN RATCHET: The Applicable Margin for the A Facility and
the Revolving Facility shall, beginning with
the first quarter date occurring at least 6
months from the Closing Date, each be subject
to a margin ratchet based upon the ratio of
Consolidated Net Borrowings to Consolidated
Annualised TCN Group Net Operating Cash Flow
in accordance with the following table:
Ratio Applicable Margin
----- ------------------
Greater than or equal to 2.25%
3.75:1
Less than 3.75:1 but greater 2.00%
than or equal to 3.5:1
Less than 3.5:1 but greater 1.85%
than or equal to 3.25:1
Less than 3.25:1 but greater 1.65%
than or equal to 3:1
Less than 3:1 1.50%
The Applicable Margin for the B Facility
shall be subject to a margin ratchet such
that, from and after the first quarter date
occurring at least 6 months after the Closing
Date on which the ratio of Consolidated Net
Borrowings to Consolidated Annualised TCN
Group Net Operating Cash Flow is less than or
equal to 3.0 to 1.0, the B Facility Margin
shall be reduced by 25 basis points.
Upon an Event of Default which is continuing,
the applicable margin for each of the
Revolving Facility, the A Facility and the B
Facility will revert back to the initial
margin with respect to each such Facility
until such time that the Event of Default has
been remedied or waived.
INTEREST PAYMENTS: TERM FACILITIES: Interest payments to be made
at the end of each Interest Period (being 1,
2, 3, 6 or, if available to all of the
Lenders, 9 or 12 months in duration, at the
election of the Borrower, or a longer period,
as agreed by the Lenders (and, if the Term
exceeds 6 months, on the expiry of each
period of 6 months during such Term)). The
default interest period in the event no
election is made by the Borrower, will be 3
months.
REVOLVING FACILITY: Interest payments to be
made at the end of each Term (being 1, 2, 3,
6 or, if available to all of the Lenders, 9
or 12 months in duration, at the election of
the Borrower, or a longer period, as agreed
by the Lenders (and, if the Term exceeds 6
months, on the expiry of each period of 6
months during such Term)).
DOCUMENTARY CREDIT A letter of credit fee equal to the Revolving
FEES: Facility Margin will be applied on the
outstanding amount of letters of credit. Such
fee will be paid in arrears on the last day
of each successive period of three months
during the term of the relevant Documentary
Credit.
UNDERWRITING FEES: As set out in the separate Fees Letter.
COMMITMENT FEES: As set out in the separate Fees Letter.
AGENCY FEE: As set out in the separate Agency Fee Letter.
VOLUNTARY Upon 3 business days prior notice for
PREPAYMENTS AND cancellations and 5 business days prior
COMMITMENT notice for prepayments, the Senior Facilities
REDUCTIONS: may be prepaid in whole or in part (if in
part, in a minimum amount of pound 5,000,000
or integral multiples of pound 1,000,000)
without premium or penalty subject to the
payment of any break costs.
Any prepayment of the Second Lien Facility
prior to the date that is 12 months after the
Closing Date (the "NON-CALL PERIOD") will be
at par plus the Applicable Make-Whole Premium
(to be defined in accordance with customary
market terms), together with accrued and
unpaid interest, if any, as at the date of
prepayment. From and after the end of the
Non-Call Period upon 5 business days prior
notice, the Second Lien Facility may be
prepaid in whole or in part (if in part, in a
minimum amount of pound 5,000,000 or integral
multiples of pound 1,000,000), subject to the
payment of the Second Lien Prepayment Premium
referred to below (if applicable) and to the
payment of any break costs but otherwise
without premium or penalty.
SECOND LIEN Any prepayment occurring after the end of the
PREPAYMENT Non-Call Period, in whole or in part, of the
PREMIUM: Second Lien Facility shall be accompanied by
a prepayment fee (the "SECOND LIEN PREPAYMENT
PREMIUM") which shall be equal to (i) 2.00%
of the principal amount of the Second Lien
Facility being prepaid, if such prepayment is
made at any time after the end of the
Non-Call Period but prior to the second
anniversary of the Closing Date, (ii) 1.00%
of the principal amount of the Second Lien
Facility being prepaid, if such prepayment is
made at any time on or after the second
anniversary of the Closing Date but prior to
the third anniversary of the Closing Date,
and (iii) 0.00% of the principal amount of
the Second Lien Facility being prepaid, if
such prepayment is made at any time on or
after the third anniversary of the Closing
Date.
MANDATORY Substantially as set out in Part 1 of Annex A
PREPAYMENTS AND hereto.
COMMITMENT
REDUCTIONS:
APPLICATION OF Substantially as set out in Part 1 of Annex A
VOLUNTARY OR hereto.
MANDATORY PREPAYMENTS:
REPRESENTATIONS AND Customary and appropriate for financings of
WARRANTIES: this type (to include repetition, where
appropriate, on each utilisation date and the
first day of each interest period), subject
in each case to agreed exceptions and
disclosures and where appropriate qualified
by reference to materiality or a concept of
material adverse effect, including:
(i) due organisation and authority to
enter into the Financing
Documentation;
(ii) no deduction or tax withholding for
any payment to be made under the
Financing Documentation;
(iii) claims are at least pari passu with
senior unsecured obligations;
(iv) no immunity;
(v) recognition of governing law and
judgments;
(vi) no filing or stamp taxes due;
(vii) all obligations under Finance
Documentation are binding
obligations;
(viii) no insolvency proceedings (including
in relation to (a) winding up,
suspension of payments, moratorium,
dissolution, adminstration or
reorganisation; (b) appointment of
liquidator, receiver, adminstrative
receiver, adminstrator, compulsory
manager or similar officer; (c)
composition or compromise of other
arrangement or (d) enforcement of any
of the Security or any analogous
step);
(ix) no event of default has occurred;
(x) no material proceedings exist or are
threatened in writing;
(xi) original financial statements are
prepared in accordance with UK or US
GAAP, as applicable;
(xii) no material adverse change since 31
December 2003;
(xiii) no material liabilities which have
not been disclosed;
(xiv) accuracy of information memorandum,
no omission of material information,
no materially misleading information
and reasonable opinions and
assumptions made in preparation of
information memorandum, budget and
business plan;
(xv) no indebtedness and encumbrances save
as permitted under the Financing
Documentation;
(xvi) execution of Financing Documentation
does not conflict with any other
agreement, constitutional documents
or applicable law;
(xvii) material accuracy of corporate
structure;
(xviii) compliance with material environmental
laws;
(xix) all necessary authorisations have
been obtained;
(xx) ownership of material intellectual
property and no infringement of third
party intellectual property rights;
(xxi) ownership of assets;
(xxii) payment of taxes and tax residence of
Obligors;
(xxiii) compliance with pension plan laws;
(xxiv) ownership of assets which are subject
to the security;
(xxv) shares subject to security are fully
paid and transfer of such shares on
enforcement not restricted by
constitutional documents of relevant
issuing company;
(xxvi) no execution, expropriation,
attachment, distress or analogous
process;
(xxvii) inapplicability of Investment Company
Act and the Public Utility Holding
Company Act;
(xxviii)U.S. Patriot Act
(xxix) compliance with applicable laws;
(xxx) no "disqualified persons" under
Broadcasting Act 1990;
(xxxi) adequate insurance;
(xxxii) certification of centre of main
interests; and
(xxxiii)no material claims made or
threatened in writing against
Telewest UK pursuant to the Transfer
Agreement.
FINANCIAL TCN will provide in relation to each of (a)
STATEMENTS: the TCN Group and (b) the Group:
(i) no later than 120 days after the end
of each of TCN's financial years, the
consolidated financial statements for
such financial year in respect of the
TCN Group and of the Group,
accompanied by an auditor's report
thereon;
(ii) no later than 45 days after the end of
each of Q1, Q2 and Q3 of each
financial year, the unaudited
consolidated quarterly financial
statements of the TCN Group and of the
Group, other than in respect of the
financial quarter during which a
Merger Event or an Integrated Merger
Event occurs, in which case, no later
than 90 days after the end of such
financial quarter; and
(iii) no later than 45 days after the end of
Q4 in each financial year, the
unaudited consolidated management
accounts of the TCN Group and of the
Group in respect of such financial
quarter.
In relation to the financial information of
the Group only, the above requirements
(including in relation to the Q4 financial
statements in (iii) above) may be satisfied
by the provision, within the specified time
periods, of copies of reports for the Group
already filed with the Securities and
Exchange Commission ("SEC") for the relevant
period (it being acknowledged that the SEC
does not currently require the filing of Q4
statements).
BUDGET: The Borrower will provide, no later than 31
January each year, the annual budget for the
TCN Group for such financial year and
projections for the current financial
quarter.
CHANGE IN Each set of financial information as
ACCOUNTING POLICIES: described in the "Financial Statements"
section above, will be prepared using
accounting policies, practices and procedures
consistent with that applied in the
preparation of the audited consolidated
financial statements of the TCN Group for the
period ended December 31, 2003, except that
the financial statements will be prepared
under U.S. GAAP rather than U.K. GAAP. If
changes (other than the change to U.S. GAAP)
are made to the TCN Group's accounting
policies, practices and procedures and the
TCN Group elects to stop preparing its
financial statements on the same basis as
those financial statements, sufficient
information must be provided by TCN to enable
the Lenders to make an accurate comparison of
the financial positions between the financial
information prepared on the changed basis and
each set of financial information delivered
to the Lenders afterwards.
Pursuant to the above, should TCN no longer
find it practicable to test compliance with
the financial covenants based on the new
accounting treatment, then the Agents and TCN
will enter into negotiations with a view to
agreeing to new covenants, which upon
approval by an Instructing Group, will be
binding on the Lenders.
COMPLIANCE Compliance Certificates delivered by two
CERTIFICATES: authorised signatories (one of whom shall be
the finance director) of TCN:
(a) to be delivered every quarter together
with the annual or quarterly (as the
case may be) financial information
relating to the TCN Group, certifying
inter alia, compliance with the
financial covenants; and
(b) following an Integrated Merger Event,
certifying satisfaction of the Merger
Event Conditions and certain of the
Merger Event Integration Tests (each as
defined below).
AFFIRMATIVE The following affirmative covenants apply to
COVENANTS: the TCN Group, subject in each case to agreed
agreed exceptions and where appropriate
qualified by reference to materiality or a
concept of material adverse effect:
(i) application of advances for purposes
specified;
(ii) execution of Financing Documentation
will not constitute financial
assistance or fraudulent conveyance;
(iii) maintenance of necessary
authorisations;
(iv) compliance with applicable laws;
(v) maintenance of necessary and usual
insurance;
(vi) maintenance of applicable licences;
(vii) protecting and maintaining
intellectual property rights;
(viii) ensuring all claims rank at least pari
passu with claims of unsecured
unsubordinated creditors;
(ix) payment of taxes;
(x) ensure maintenance and operation of
pension plans;
(xi) compliance with all environmental
laws;
(xii) provide access to records upon the
occurrence of an event of default;
(xiii) maintenance of the security test;
(xiv) provide group structure chart upon
material change or inaccuracy;
(xv) contributions to the TCN Group to be
by way of subordinated funding,
capital contribution on subscription;
(xvi) prompt response to "know your client"
checks;
(xvii) requirement that PWC, D&T, KPMG or E&Y
are TCN Group's auditors;
(xviii)assistance with the syndication
process;
(xix) notification of an Integrated Merger
Event;
(xx) file applicable tax returns;
(xxi) preservation of assets;
(xxii) hedging;
(xxiii)maintenance of bank accounts;
(xxiv) further assurances;
(xxv) meetings with senior management;
(xxvi) compliance with ERISA;and
(xxvii)notification of any material claims
made against Telewest UK pursuant to
the Transfer Agreement.
NEGATIVE COVENANTS: Substantially as set out in Part 3 of Annex A
hereto.
FINANCIAL Substantially as set out in Part 2 of Annex A
COVENANTS: hereto.
SECOND LIEN The relationship between the Senior
INTERCREDITOR Facilities and the Second Lien Facility will
AGREEMENT: be governed by an intercreditor agreement on
customary market terms with respect to,
amongst other things:
(a) sharing of security and enforcement
proceeds;
(b) voluntary prepayments;
(c) mandatory prepayment from net proceeds
of asset disposals and insurance
recoveries, equity proceeds and debt
proceeds;
(d) enforcement standstills;
(e) payment blockages;
(f) turnover;
(g) advance consents or waivers with respect
to Collateral;
(h) agreements not to challenge priority;
and
(i) amendments to their respective facility
agreements.
PARI PASSU Following an Integrated Merger Event, the
INTERCREDITOR Lenders under each of the Facilities
AGREEMENT: Agreements agree to enter into a Pari Passu
Intercreditor Agreement (in a form to be
agreed) with the lenders in respect of Target
Group Financial Indebtedness and Target Group
Refinancing Indebtedness which will govern
the relationship between the parties with
respect to:
(a) availability, drawings and repayments
under the respective revolving credit
facilities;
(b) voluntary cancellations of commitments;
(c) voluntary prepayments;
(d) mandatory prepayments of net proceeds
from asset disposals and insurance
recoveries, equity proceeds and debt
proceeds;
(e) sharing of security and enforcement
proceeds; and
(f) amendments to their respective credit
agreements.
EVENTS OF DEFAULT: Substantially as set out in Part 4 of Annex A
hereto.
SEPARATION: TCN may, on prior written notice, elect to
separate all or any part of the Flextech
Group from the TCN Group. Upon a Separation,
transactions between separated members of the
Flextech Group and other members of the TCN
Group which occurred on or after the Closing
Date but prior to the relevant Separation
which have been permissible only because of
such separated member of the Flextech Group's
status as a member of the TCN Group shall be
unwound or remedied, with exceptions to be
agreed relating to intra-group services.
INDEMNIFICATION: Each Guarantor irrevocably and
unconditionally agrees, jointly and
severally, to indemnify and hold harmless
each finance party against any loss incurred
by such party as a result of the obligations
of the Borrower being void or unenforceable.
The Borrower indemnifies each of the finance
parties against (a) costs and liability
associated with default and (b) loss incurred
by the Lenders as a result of funding or
arranging to fund an advance to the Borrower
requested but not made because of one or more
provisions of the Senior Facilities Agreement
or the Second Lien Facility Agreement (as the
case may be).
In addition, the Borrower agrees to pay
applicable break costs within 3 business days
of demand as well as agreeing to indemnify
the Lenders against currency risk associated
with judgments against Obligors.
ASSIGNMENTS/ The Lenders may assign or transfer their
PARTICIPATIONS: rights provided that any such assignment or
transfer does not result in a participation
of more than zero but less than (pound)5
million (or its equivalent in $ or (euro))
save that an assignment or transfer may be
made to or by a trust, fund or other non-bank
entity which participates in the
institutional market which would result in
such entity holding an aggregate
participation of at least (pound)1 million
(or $1 million or (euro)1 million), provided
further that:
(i) prior consultation of TCN is sought for
any transfer prior to the achievement of
a Successful Syndication;
(ii) prior consent of TCN is received after
the achievement of a Successful
Syndication (other than in respect of an
assignment by a lender to its affiliate
which is a qualifying lender), such
consent not to be unreasonably withheld
and to be deemed to have been given if
not declined in writing within 10
Business Days of a written request by
any Lender to TCN; and
(iii)if the transferee is a non-UK bank
lender, it must provide TCN with
evidence of the same.
With respect to matters requiring unanimous
consent, where Lenders representing no less
than 85% of the outstanding amount consent to
such matter, TCN may request that any
dissenting Lender assigns or transfers its
rights under the Senior Facilities Agreement
(other than any rights and obligations it may
have in its capacity as a Hedge Counterparty)
or the Second Lien Facility Agreement (as the
case may be) at par to an assignee or
transferee as specified by TCN, provided that
in relation to any request of TCN in relation
to a Lender under the Second Lien Facility,
TCN shall, upon such assignment or transfer,
pay to that Lender an amount equal to any
Applicable Make Whole Premium or any Second
Lien Prepayment Premium that would have been
payable had an amount equal to that Lender's
portion of the Second Lien Facility been
voluntarily prepaid by TCN on that date.
Any Lender granting a sub-participation in
the Facilities shall be restricted from
relinquishing its voting rights to the
sub-participant except in certain specified
circumstances.
WAIVERS AND Subject to the consent requirement of the
AMENDMENTS: affected Lender or Lenders on matters noted
below and the Second Lien Intercreditor
Agreement, each of the Agents, with consent
of their respective Instructing Groups and
the Obligors, may agree to amend or waive,
prospectively or retrospectively, any of the
terms of the Facilities other than any:
(i) increase in commitment of a Lender;
(ii) reduction in the proportion of any
amount received or recovered to
which a Lender is entitled;
(iii) decrease in any Applicable Margin;
(iv) change in the currency of account;
(v) unless otherwise specified, deferral
of a payment date for principal,
interest, fee or any other amount
due;
(vi) deferral of the termination date;
(vii) reduction in percentage constituting
the Instructing Group; or
(viii) change to any provision which
contemplates the need for the
consent or approval of all the
Lenders.
For the avoidance of doubt, any amendments
relating to the Senior Facilities Agreement
or the Second Lien Facility Agreement shall
only be made in accordance with the
provisions of the Senior Facilites Agreement
or the Second Lien Facility Agreement (as
appropriate) and any amendments relating to a
Hedging Agreement shall only be made in
accordance with the provisions of such
Hedging Agreement, in each case
notwithstanding any other provisions of the
Finance Documents.
SECURITY AND The release of all or substantially all of
GUARANTORS: the security under the security documents or
of all or substantially all of the Guarantors
from their respective obligations will
require the consent of Lenders whose
available commitment and outstanding amount
aggregate to more than 90 per cent of total
commitment plus outstanding amounts.
TAXES: All payments by the Obligors will be made
free and clear of all taxes or other
deductions or withholdings save to the extent
required by law. Standard gross-up provisions
are applied (provided that there will be no
gross-up in respect of treaty Lenders which
have not complied with all procedural
formalities to allow them to be paid without
withholding).
CONVENTION: For Sterling-denominated amounts, interest
and commitment fees will be calculated on the
basis of a 365-day year (360 days for all
other currencies).
GOVERNING LAW AND The Senior Facilities Agreement and the
JURISDICTION: Second Lien Facility Agreement will each be
governed by English Law, and each of the
Obligors will submit to the non-exclusive
jurisdiction of the Courts of England.
AGENTS' COUNSEL: White & Case