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As Of Filer Filing For·On·As Docs:Size 9/30/20 Liberty Global plc 8-K:2,9 9/24/20 15:9M |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 59K 2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 1.48M 3: EX-4.2 Instrument Defining the Rights of Security Holders HTML 1.49M 4: EX-4.3 Instrument Defining the Rights of Security Holders HTML 1.51M 11: R1 Document and Entity Information HTML 57K 13: XML IDEA XML File -- Filing Summary XML 13K 10: XML XBRL Instance -- a9-24x208xkvmedfincolo_htm XML 24K 12: EXCEL IDEA Workbook of Financial Reports XLSX 6K 6: EX-101.CAL XBRL Calculations -- lbtya-20200924_cal XML 7K 7: EX-101.DEF XBRL Definitions -- lbtya-20200924_def XML 44K 8: EX-101.LAB XBRL Labels -- lbtya-20200924_lab XML 89K 9: EX-101.PRE XBRL Presentations -- lbtya-20200924_pre XML 47K 5: EX-101.SCH XBRL Schema -- lbtya-20200924 XSD 16K 14: JSON XBRL Instance as JSON Data -- MetaLinks 15± 22K 15: ZIP XBRL Zipped Folder -- 0001570585-20-000273-xbrl Zip 647K
Exhibit |
From: | VMED O2 UK Financing I plc (the “Additional Facility U Lender”) |
1. | In this Additional Facility U Accession Deed: |
(i) | the
credit agreement dated 5 March 2015 between (among others) Ziggo Secured Finance B.V. as SPV borrower and The Bank of Nova Scotia as facility agent; |
(ii) | the credit agreement dated 24 May 2019 between (among others) DLG Acquisitions Limited as parent and National Westminster Bank plc as facility agent; |
(iii) | the credit agreement dated 16 January 2004 between, among others, UPC Broadband Holding B.V. and The Bank of Nova Scotia as facility agent; |
(iv) | the
credit agreement dated 1 August 2007 between, among others, Telenet NV as borrower and The Bank of Nova Scotia as facility agent; |
(v) | the indenture dated 18 October 2017 in respect of the $550,000,000 5.500% senior notes due 2028 issued by UPC Holding B.V.; |
(vi) | the indenture dated 13 December 2017 in respect of the $1,000,000,000 5.500% senior secured
notes due 2028 and €600,000,000 3.500% senior secured notes due 2028 issued by Telenet Finance Luxembourg Notes S.à r.l.; |
(vii) | the indenture dated 28 October 2019 in respect of $700,000,000 aggregate principal amount of 4.875% senior secured notes due 2030 and €502,500,000 aggregate principal amount of 2.875% senior secured notes due 2030 issued by Ziggo B.V.; |
(viii) | the facilities agreement dated 4 November 2019 between (among others) VZ
Financing I B.V. as borrower, VZ Vendor Financing B.V. as lender and The Bank of New York Mellon, London Branch acting as administrator, in respect of the advance of certain proceeds of the €500,000,000 original aggregate principal amount of 2.500% vendor financing notes due 2024 issued by VZ Vendor Financing B.V.; |
(ix) | the indenture dated 11 February 2020 in respect of $500,000,000 aggregate principal amount of 5.125% senior notes due 2030 and €900,000,000
aggregate principal amount of 3.375% senior notes due 2030 issued by Ziggo Bond Company B.V.; |
(x) | the indenture dated 22 June 2020 in respect of €500,000,000 aggregate principal amount of 3.750% senior notes due 2030 issued by Virgin Media Finance plc; |
(xi) | the facilities agreement dated 24 June 2020 in respect of the advance of certain proceeds of the $500,000,000 5.000% vendor financing notes due 2028 issued by Virgin Media Vendor Financing
Notes IV Designated Activity Company; and |
(xii) | the indenture dated 29 June 2020 in respect of £450,000,000 aggregate principal amount of 4.125% senior secured notes due 2030 and $650,000,000 aggregate principal amount of 4.500% senior secured notes due 2030 issued by Virgin Media Secured Finance plc, |
2. | Unless
otherwise defined in this Additional Facility U Accession Deed, terms defined in the Credit Agreement shall have the same meaning in this Additional Facility U |
3. | We
refer to Clause 2.6 (Additional Facilities) of the Credit Agreement and the definition of “Affiliate” in the Credit Agreement. This Additional Facility U Accession Deed is an Additional Facility Accession Deed for the purposes of the Credit Agreement. The Additional Facility U Lender is a Designated Notes Issuer for the purposes of the Credit Agreement. |
4. | This Additional Facility U Accession Deed will take effect on the date on which the Facility Agent notifies the Company and the Additional Facility U Lender that it has received the documents and evidence set out in Schedule 2 to this Additional Facility U Accession
Deed, in each case in form and substance satisfactory to it (acting reasonably), or, as the case may be, the requirement to provide any of such documents or evidence has been waived by the Facility Agent on behalf of the Additional Facility U Lender (the “Additional Facility Commencement Date”). The Facility Agent must give this notification to the Company and the Additional Facility U Lender promptly upon being so satisfied. |
5. | The Additional Facility U Lender agrees: |
(a) | to
become party to and to be bound by the terms of the Credit Agreement as a Lender in accordance with Clause 2.6 (Additional Facilities) of the Credit Agreement; |
(b) | to become party to the Group Intercreditor Agreement, the Security Trust Agreement and the HYD Intercreditor Agreement; and |
(c) | to waive Clause 2.6(a)(vi) (Additional Facilities) of the Credit Agreement such that the Borrower shall not be required to be an Obligor as at (i) the
date of this Additional Facility U Accession Deed or (ii) the Additional Facility Commencement Date, provided that the Borrower shall become an Obligor on a date no later than the date of the Utilisation Request in respect of Facility U. |
6. | The Facility Agent will, for the purposes of any determination to be made under the Credit Agreement or this Additional Facility U Accession Deed (other than in respect of the Requested Amendments (as defined in paragraph 37 below) for which consent has been given in accordance with paragraph 35 below), apply the votes of the Additional Facility U Lender in accordance with a written direction to be provided by the Additional Facility U Lender. The Additional Facility U Lender agrees that it will give any such direction
in accordance with the provisions of Section 9.01 of the Indenture. For the |
7. | The Additional Facility U Lender will only be obliged
to comply with Clause 4.2 (Lenders’ Participations) of the Credit Agreement in relation to any Utilisation of Facility U if on the date of the Utilisation Request and on the proposed Utilisation Date: |
(a) | the representations and warranties in Clause 21.2 (Status) to Clause 21.5 (Non-violation) (inclusive) of the Credit Agreement to be made by the Borrower are true, in respect of the Borrower only, in all material respects in each case by reference to the facts and circumstances then subsisting; and |
(b) | it
is not unlawful in any applicable jurisdiction for that Additional Facility U Lender to perform any of its obligations to fund or participate in that Utilisation. |
8. | No Utilisation of Facility U may occur unless: |
(a) | the Completion Date has occurred or will occur on the proposed Utilisation Date for that Utilisation; and |
(b) | the
Facility Agent has received evidence in form and substance satisfactory to it (acting reasonably) that the agreed fees payable by the Company or the Borrower (or both) in connection with the utilisation of Facility U have been or will be paid. |
9. | During the Additional Facility Availability Period for Facility U, none of the Additional Facility U Lender, the Facility Agent and the other Relevant Finance Parties shall be entitled to: |
(a) | subject
to paragraph 10 below, cancel any of its Facility U Commitments; |
(b) | rescind, terminate or cancel this Additional Facility U Accession Deed, the Credit Agreement or any of the other Relevant Finance Documents or Facility U or exercise any similar right or remedy or make or enforce any claim under the Relevant Finance Documents it may have to the extent to do so would prevent or limit the making of a Facility U Advance; |
(c) | refuse to participate in the making of a Facility U Advance; |
(d) | exercise
any right of set off or counterclaim or similar right or remedy in respect of a Utilisation to the extent to do so would prevent or limit the making of a Facility U Advance; |
(e) | cancel, accelerate or cause repayment or prepayment of any amounts owing under this Additional Facility U Accession Deed, the Credit Agreement or any other Relevant Finance Document or exercise any enforcement rights under any Security Document to the extent to do so would prevent or limit the making of a Facility U Advance; or |
(f) | take
any other action or make or enforce any claim (in its capacity as a Lender) to the extent that such action, claim or enforcement would directly or indirectly prevent or limit the making of a Facility U Advance, |
10. | At any time prior to the earlier to occur of the Escrow Release Date and the Escrow Termination
Date (each as defined in the Indenture), if all or any portion of the Notes are redeemed at the option of the Additional Facility U Lender then the Facility U Commitments will be automatically reduced and cancelled by an amount equal to the aggregate principal amount of such Notes which are so redeemed. |
11. | Upon the occurrence of the Escrow Termination Date, the Facility U Commitments shall immediately be reduced to zero and cancelled. |
12. | The
Additional Facility Commitment in relation to the Additional Facility U Lender (for the purpose of the definition of Additional Facility Commitment in Clause 1.1 (Definitions) of the Credit Agreement) is its Facility U Commitment. |
13. | The Additional Facility Availability Period for Facility U shall be the period from and including the later of the Additional Facility Commencement Date and the Escrow Release Date up to and including the earlier of: |
(a) | the date falling 10 Business Days
following the Long Stop Date (or, if the Long Stop Date is postponed in accordance with the terms of the Contribution Agreement, the Postponed Long Stop Date); |
(b) | the date falling 45 Business Days following the Completion Date; and |
(c) | the Merger Termination Date, |
13A. | Subject to the terms of this Additional Facility U Accession Deed, the Additional Facility U Lender makes available to the Borrower a term loan facility in an amount equal to the aggregate of the Facility U Commitments. |
14. | Facility
U may be drawn by one Advance. No more than one Utilisation Request may be made in respect of Facility U under the Credit Agreement and such Utilisation Request may only be in a principal amount of the Additional Facility Commitment of Facility U as set out in paragraph 12 above. |
15. | The first Interest Period to apply to each Facility U Advance will be a period running from the Notes Interest Payment Date immediately preceding the first Utilisation Date in respect of that Facility U Advance up to (but excluding) the Notes Interest Payment Date immediately following the first Utilisation Date in respect of that Facility U Advance, and the Borrower agrees that each subsequent Interest Period under Facility U will be 6 months ending on each 15 January
and 15 July. Notwithstanding Clause 14.4 (Payment of Interest for Term Facility Advances) of the Credit Agreement, interest for each Interest Period is payable on each Notes Interest Payment Date. |
16. | The Facility U Advances will be used (a) to service certain payments to the Additional Facility U Lender under the Facility U Fee Letter and/or (b) for general corporate and/or working capital purposes, including without limitation, the payment of a distribution out of the Bank Group in connection with the Merger, the redemption, refinancing, repayment or prepayment of any existing indebtedness of the Bank Group and/or the O2 Group, and/or the payment of any fees and expenses in connection with Facility U
and the transactions related thereto. |
17. | The Final Maturity Date in respect of Facility U will be 31 January 2031. The Additional Facility Termination Date in respect of Facility U will be the Final Maturity Date. |
18. | The outstanding Facility U Advances will be repaid in full on the Final Maturity Date. |
19. | The
Borrower in relation to Facility U is VMED O2 UK Holdco 4 Limited. |
20. | The interest rate in relation to Facility U will be a fixed rate of 4.250 per cent. per annum. Such interest rate will be calculated in accordance with Clause 14.5 (Interest Rate for Term Facility Advances) of the Credit Agreement, being the sum of LIBOR and the applicable Margin, where in order to achieve the fixed rate referred to above, the applicable Margin will be: |
(a) | 4.250
per cent. per annum calculated, notwithstanding anything to the contrary in Clause 35.1 (Day Count Convention) of the Credit Agreement, on the basis of a 360 day year comprising of twelve 30-day months; minus |
(b) | LIBOR. |
21. | For
the avoidance of doubt, each party to this Additional Facility U Accession Deed accepts and acknowledges that LIBOR has the meaning given to it under Clause 1.1 (Definitions) of the Credit Agreement. |
22. | Upon the occurrence of a mandatory prepayment of Facility U following a Change of Control, as defined in Clause 12.1 (Change of Control) of the Credit Agreement, the Borrower agrees to pay to the Facility Agent (for the account of the Additional Facility U Lender) an amount equal to 1 per cent. of the principal amount of Facility U, plus accrued and unpaid interest to, but excluding, the due date of mandatory prepayment. Such payment shall be due and payable
by the Borrower to the Facility Agent (for the account of the Additional Facility U Lender) on the actual date of such mandatory prepayment. |
23. | At any time prior to 31 January 2026, upon the occurrence of any voluntary prepayment of any of Facility U by the Borrower under Clause 11 (Voluntary Prepayment) of the Credit Agreement (other than a voluntary prepayment complying with paragraph 26, 27 or 28 below) in an amount not to exceed 10% of the original principal amount of Facility U (such original principal amount to include any upsizing of Facility U pursuant to paragraph 29 below) during each twelve-month period commencing on the Issue Date, the Borrower agrees to pay to the Facility Agent (for the account
of the Additional Facility U Lender) an amount equal to 3.0% of the principal amount of Facility U being prepaid, plus accrued and unpaid interest then due on the amount of Facility U prepaid to, but excluding, the due date of prepayment. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Additional Facility U Lender) on the actual date of such prepayment. Prior to 31 January 2026, to the extent that during any twelve-month period commencing on the Issue Date, the principal amount of Facility U prepaid in one or more voluntary prepayments is greater than an amount equal to 10% of the original principal amount of Facility U (such original principal amount to include any upsizing of Facility U pursuant to paragraph 29 below) (any such amount, the “Excess Early Redemption Proceeds”), the Borrower will apply the Excess Early Redemption Proceeds to a voluntary prepayment of Facility
U as described in paragraph 24 below. |
24. | At any time prior to 31 January 2026, upon the occurrence of any voluntary prepayment of any or all of Facility U by the Borrower under Clause 11 (Voluntary Prepayment) of |
(a) | the present value at such prepayment date of (i) the amount that would
be payable in accordance with paragraph 25 below in respect of the principal amount of Facility U being prepaid if such amount were prepaid on 31 January 2026 pursuant to Clause 11 (Voluntary Prepayment) of the Credit Agreement exclusive of any accrued but unpaid interest, plus (ii) the principal amount of Facility U being prepaid plus (iii) all required remaining scheduled interest payments due on the principal amount of Facility U being prepaid through 31 January 2026 (excluding accrued but unpaid interest to the prepayment date and assuming such interest payments are calculated at the rate of interest on Facility U in effect on such prepayment date), computed using a discount rate equal to the Treasury Rate plus 50 basis points; over |
(b) | the
principal amount of Facility U being prepaid. |
25. | On or after 31 January 2026, upon the occurrence of a voluntary prepayment of any or all of Facility U by the Borrower under Clause 11 (Voluntary
Prepayment) of the Credit Agreement (other than a voluntary prepayment complying with paragraphs 26, 27 or 28 below), the Borrower agrees to pay to the Facility Agent (for the account of the Additional Facility U Lender) an amount equal to the relevant percentages of the principal amount of Facility U being prepaid as set out in the table below, plus accrued and unpaid interest then due on the amount of Facility U prepaid to, but excluding, the due date of prepayment, if prepaid during the twelve-month period beginning on 31 January of the years indicated below. |
Year | Prepayment Price expressed as a percentage of
the principal amount of Facility U |
2026 | 2.125% |
2027 | 1.063% |
2028 | 0.530% |
2029 and thereafter | 0.000% |
26. | Notwithstanding
paragraphs 23, 24 and 25 above: |
(a) | if the Additional Facility U Lender purchases any Notes in connection with any tender offer or other offer to purchase the Notes (a “Tender Offer”), the Borrower will prepay an aggregate principal amount of Facility U based on the aggregate principal amount of Notes tendered in such Tender Offer and at a prepayment price of par plus any premium paid or less any discount received by the Additional Facility U Lender in connection with the purchase of the Notes in such Tender Offer, plus any accrued and unpaid interest to, but excluding, the due date of such prepayment; and |
(b) | if
following any Tender Offer, the Additional Facility U Lender is entitled to, and elects to, redeem any remaining Notes at a price equal to the price paid to each other holder in such Tender Offer, then the Borrower will prepay the remaining principal amount of Facility U at a prepayment price of par plus any premium paid or less any discount received by the Additional Facility U Lender in connection with the purchase of the Notes in such Tender Offer, plus any accrued and unpaid interest to the date that any interest accrues under the Notes in connection with such redemption. |
27. | At any time prior to 31 January 2026, upon the occurrence of any voluntary prepayment of Facility U by the Borrower pursuant to Clause 11 (Voluntary
Prepayment) of the Credit |
(a) | at least 50% of the original principal amount of Facility U (such original principal amount to include any upsizing of Facility U pursuant to paragraph 29 below) remains outstanding immediately after any such prepayment; and |
(b) | such prepayment is made not more than 180 days after the consummation
of any such Equity Offering. |
(a) | matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise; |
(b) | is convertible or exchangeable for Financial Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary of the Company or a Permitted Affiliate Parent); or |
(c) | is
redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of (1) the Stated Maturity of the Notes or (2) the date on which there are no Notes outstanding, |
(i) | only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the |
(ii) | any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company or any Permitted Affiliate Parent to repurchase such Capital Stock upon the occurrence of a change of control or asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide the Company or any Permitted Affiliate Parent may not purchase or redeem any such Capital Stock (and all such
securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by the Company or any Permitted Affiliate Parent with any provisions of the Credit Agreement. |
(a) | the distribution of Capital Stock of the Spin Parent in connection with any Spin-Off; or |
(b) | a sale of (1)
Capital Stock of the Company or any Permitted Affiliate Parent (other than Disqualified Stock), (2) Capital Stock the proceeds of which are contributed as equity share capital to the Company or any Permitted Affiliate Parent or as Subordinated Funding or (3) Subordinated Funding. |
28. | Notwithstanding paragraphs 23, 24 and 25 above, upon the occurrence of an Issuer Tax Event under the Indenture and the election by the Additional Facility U Lender to redeem the Notes under the Indenture in connection therewith, the Borrower will prepay 100% of the then outstanding principal amount of Facility U, plus accrued and unpaid interest then
due on the amount of Facility U prepaid to, but excluding, the due date of prepayment free of any additional premium or penalty. Such payment shall be due and payable by the Borrower to the Facility Agent (for the account of the Additional Facility U Lender) on the actual date of prepayment. |
29. | (a) Provided that any upsizing of Facility U permitted under this paragraph 29 will not breach any term of the Credit Agreement, Facility U may be upsized by any amount, by the signing of one or more further Additional Facility U Accession Deeds, that specify (along with the other terms specified therein) VMED O2 UK Holdco 4 Limited as the sole Borrower and which specify Additional Facility U Commitments denominated in U.S. dollars, to be drawn in U.S.
dollars, with the same Final Maturity Date and Margin as specified in this Additional Facility U Accession Deed. |
(b) | For the purposes of this paragraph 29 (unless otherwise specified), references to Facility U Advances shall include Advances made under any such further and previous Additional Facility U Accession Deed. |
(c) | Where any Facility U Advance has not already been consolidated with any other Facility U Advance, on the last day of any Interest Period for that unconsolidated Facility U Advance, that Facility U Advance will
be consolidated with any other Facility U Advance which has an Interest Period ending on the same day as that unconsolidated Facility U Advance, and all such Facility U Advances will then be treated as one Advance under Facility U. |
30. | The Borrower agrees that it will not request or require the transfer of all of the rights and obligations of the Additional Facility U Lender (or cancel or reduce any of such Lender’s Commitments or repay or prepay any Facility U Advance) pursuant to Clause 10.4 (Right of Repayment and Cancellation
in Relation to a Single Lender), Clause 10.5 (Right of Cancellation in Relation to a Defaulting Lender) or Clause 42.14 (Replacement of Lenders) of the Credit Agreement. |
31. | The Additional Facility U Lender and the Facility Agent agree to waive the notice period in respect of drawdown requests under Clause 4.1(a) (Conditions to Utilisation) of the Credit Agreement in respect of this Facility U. |
32. | The
Additional Facility U Lender, the Borrower and the Facility Agent acknowledge and agree that (a) the Facility U Advances shall be made by the Additional Facility U Lender directly to the Borrower to an account notified by the Borrower to the Additional Facility U Lender, rather than through the Facility Agent, and (b) in respect of any other payments of principal, interest or other amounts due under Facility U, (i) the Borrower shall make payments payable by it to the Additional Facility U Lender directly to the Additional Facility U Lender (or to such account as the Additional Facility U Lender may specify), and (ii) the Additional Facility U Lender shall make payments payable by it to the Borrower directly to the Borrower (or to such account as the Borrower may specify). The Additional Facility U Lender agrees that it shall promptly notify the Facility Agent if the Borrower fails to make any payment under subclause (b)(i) of this paragraph 32 when due, and the Borrower
agrees that it shall promptly notify the Facility Agent if the Additional Facility U Lender fails to make any payment under subclause (b)(ii) of this paragraph 32 when due. |
33. | The Borrower hereby agrees that the Additional Facility U Lender may disclose confidential information supplied to it by or on behalf of any Obligor in connection with the Finance Documents to the extent such disclosure is required by the terms of the Notes. |
34. | For the purposes of any assignment, transfer or novation of rights and/or obligations (in whole
or in part) by the Additional Facility U Lender under Clause 36.4 (Assignments or Transfers by Lenders) of the Credit Agreement, each of the Borrower and the Company hereby irrevocably consent to any assignment, transfer or novation made by the Additional Facility U Lender (a) by way of security in favour of BNY Mellon Corporate Trustee Services Limited (as security trustee under the Indenture) and (ii) following an Event of Default under and as defined in the Indenture. The Additional Facility U Lender may only deliver to the Facility Agent a completed Transfer Deed or Transfer Agreement (as applicable) if at that time it confirms to the Facility Agent in writing
that an assignment, transfer or novation of the interest in Facility U to be assigned, transferred or novated is not prohibited under the terms of any agreement that is binding on it or any of its assets. |
35. | Subject to paragraph 37 below and the provisions of the Indenture, for the purposes of any amendment or waiver, consent or other modification (including with respect to any existing Default or Event of Default) that may be sought by the Parent or the
Company under the Credit Agreement or any other Relevant Finance Document on or after the date of this Additional Facility U Accession Deed, the Additional Facility U Lender hereby consents (in its capacity as a Lender from time to time under the Credit Agreement and, if it is a Hedge Counterparty, in its capacity as a Hedge Counterparty), and agrees to procure, unless it is prohibited from doing so, that any of its Affiliates or Related Funds that are Lenders under a Revolving Facility or an Additional Facility that is a revolving facility or Hedge Counterparties consent (in their capacity as Lenders under a Revolving Facility or an Additional Facility that is a revolving facility or Hedge Counterparties, as applicable) to any and all of the following: |
(a) | any
and all of the items set out in Schedule 4 (Third amendments, waivers, consents and other modifications), Schedule 5 (Fourth amendments, waivers, consents and other modifications) and Schedule 6 (Fifth amendments, waivers, consents and other modifications) of this Additional Facility U Accession Deed (the “Approved Amendments”); |
(b) | any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Relevant Finance
Document to be made either to implement the Approved Amendments or to conform any Relevant Finance Document to the Approved Amendments; and/or |
(c) | any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Credit Agreement or any other Relevant Finance Document to be made to conform any Relevant Finance Document to any Liberty Global Reference Agreement (provided that any amendment, waiver, consent or modification to conform the Credit Agreement or any other Relevant Finance Document to the Liberty Global Reference Agreement referred to at paragraphs (v) to (xii) (inclusive) of that definition shall be limited to those that are mechanical
in nature unless specifically referenced in the Approved Amendments and, in each case, any consequential amendments, waivers, consents or modifications), |
36. | The Additional Facility U Lender hereby waives (in its capacity as a Lender from time to time under the Credit Agreement and,
if it is a Hedge Counterparty, in its capacity as a Hedge Counterparty), and agrees to procure, unless it is prohibited from doing so, that any of its Affiliates and Related Funds that are Lenders under a Revolving Facility or an Additional Facility that is a revolving facility or Hedge Counterparties waives (in their capacity as Lenders under a Revolving Facility or an Additional Facility that is a revolving facility or Hedge Counterparties, as applicable) receipt of any fee in connection with the foregoing consents, notwithstanding that other consenting Lenders under the Credit Agreement (including the Additional Facility U Lender in relation to any upsizing of Facility U pursuant to paragraph 29) or Hedge Counterparties under the Group Intercreditor Agreement or HYD Intercreditor Agreement may be paid a fee in consideration of such Lenders’ or Hedge Counterparties’ consent to any or all of the foregoing amendments, waivers, consents or other modifications. |
37. | Following
receipt of an amendment request from the Company and/or the Facility Agent in connection with all or any of the proposed amendments set out in paragraph 35 above (the “Requested Amendments”), the Additional Facility U Lender shall confirm whether, having regard to the relevant provisions of the Indenture, it is required to consent to the Requested Amendments. If the Additional Facility U Lender is required to give such consent, it hereby acknowledges and agrees (in its capacity as a Lender from time to time under the Credit Agreement and, if it is a Hedge Counterparty, in its capacity as a Hedge Counterparty), and agrees to procure, unless it is prohibited from doing so, that any of its Affiliates and Related Funds that are Lenders under a Revolving
Facility or an Additional Facility that is a revolving facility or Hedge Counterparties acknowledge and agree (in their capacity as Lenders under a Revolving Facility or Additional Facility that is a revolving facility or Hedge Counterparties, as applicable) that the Facility Agent and/or the Security Trustee may, but shall not be required to, send to it any further formal amendment request in connection with all, or any of the Requested Amendments and the Facility Agent and/or the Security Trustee (as applicable) shall be authorised to consent on behalf of it, as a Lender under one or more Facilities and as a Hedge Counterparty under the Group Intercreditor Agreement and the HYD Intercreditor Agreement, to any such Requested Amendments (and the Facility Agent and/or the Security Trustee shall be authorised to enter into any necessary documentation in connection with the same), and such consent shall be taken into account in calculating whether the Instructing Group,
or the relevant requisite Lenders, or the Hedge |
38. | The
Borrower, the Company, the Additional Facility U Lender and the Facility Agent (for itself and on behalf of the other Finance Parties) hereby agree and acknowledge that Facility U is made available in connection with a “Limited Condition Transaction” for the purposes of the Credit Agreement and that, as such: |
(a) | the condition under Clause 3.2 (Further Conditions Precedent) of the Credit Agreement is hereby waived in its entirety by the Additional Facility U Lender; |
(b) | pursuant
to the Limited Condition Transaction exemption from Clause 4.1(j)(ii) (Conditions to Utilisation) of the Credit Agreement, the requirement contained in Clause 4.1(j)(ii) (Conditions to Utilisation) of the Credit Agreement that, in the case of any Utilisation, on the date of the Utilisation Request and the proposed Utilisation Date (x) the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and (y) no Default is continuing or would result from the proposed Utilisation, shall not apply to any Utilisation of Facility U; and |
(c) | for the avoidance
of doubt, Clause 4.1(h) (Conditions to Utilisation) of the Credit Agreement shall not apply to, or operate so as to prevent or limit the making of, any Advance to be made in respect of Facility U. |
(a) | The Company confirms for itself and, in its capacity as Obligors’ Agent, on behalf of each other Guarantor that the obligations of each Guarantor under Clause 28 (Guarantee and Indemnity) of the Credit Agreement continue to apply for the benefit of the Relevant Finance Parties under the Relevant Finance Documents and, for the
avoidance of doubt, extend to all Additional Facilities and the Facility U Commitment and further confirms that the security created by each of the Obligors under the Security Documents extends to secure liabilities under all Additional Facilities including, for the avoidance of doubt, the Facility U Commitments. |
(b) | Notwithstanding that the Security Trustee may not sign this Additional Facility U Accession Deed, the Security Trustee shall be entitled to rely on paragraph 39(a) and enforce any of its rights in its capacity as security trustee for and on behalf of the Relevant Finance Parties which may arise in respect of such |
40. | The Additional Facility U Lender confirms to each other Finance Party that: |
(a) | it has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and such Obligor’s related entities in connection with its participation in Facility U being made available pursuant to this Additional Facility U Accession Deed and has not relied on any information provided to it by any other Finance Party in connection with any Relevant
Finance Document; and |
(b) | it will continue to make its own independent appraisal of the creditworthiness of each Obligor and such Obligors’ related entities while any amount is or may be outstanding under the Credit Agreement or any Additional Facility Commitment is in force. |
41. | The Additional Facility U Lender represents and warrants to the Facility Agent and to each UK Borrower that: |
(a) | as
at the date of this Additional Facility U Accession Deed, it is a UK Non-Bank Lender and falls within paragraph (a) of the definition of UK Non-Bank Lender; and |
(b) | unless it notifies the Facility Agent and the Company to the contrary in writing prior to any such date, its representation and warranty in paragraph (a) above is true in relation to the Additional Facility U Lender’s participation in each Advance made to such Borrowers, on each date that such UK Borrower makes a payment of interest in relation to such Advance. |
42. | The
Additional Facility U Lender agrees that it will not, without the prior written consent of the Company (acting in its sole discretion), effect any transfer, assignment or Sub-participation of any of its rights, benefits or obligations in respect of any Facility U Commitment under this Additional Facility U Accession Deed prior to the date that such Facility U Commitment has been utilised. The Additional Facility U Lender agrees that, without prejudice to Clause 36.8 (Transfer Deed) or Clause 36.9 (Transfer Agreement) of the Credit Agreement, as applicable, each New Lender shall become, by the execution by the Facility Agent of either (a) a Transfer Deed substantially in the form set out in the Credit Agreement or (b) a Transfer Agreement substantially in the form set out in the Credit Agreement,
as applicable, bound by the terms of this Additional Facility U Accession Deed as if it were an original party hereto as the Additional Facility U Lender and shall acquire the same rights, grant the same consents and assume the same obligations towards the other parties to this Additional Facility U Accession Deed as |
43. | The Additional
Facility U Lender acknowledges and agrees that the Lender Asset Security Release Confirmation has been delivered by the Facility Agent to the Lenders and that the Security Trustee is therefore irrevocably authorised in accordance with Clause 42.8(a) (Asset Security Release) of the Credit Agreement to execute such documents as may be required to ensure that the Security (other than any Security required to be granted under paragraph (b) of the definition of “80% Security Test”) is released. |
44. | The Facility Office and address for notices of the Additional Facility U Lender for the purposes of Clause 39 (Notices and Delivery of Information) of the Credit
Agreement will be that notified by the Additional Facility U Lender to the Facility Agent. |
45. | If a term of this Additional Facility U Accession Deed is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect: |
(a) | the legality, validity or enforceability in that jurisdiction of any other term of this Additional Facility U Accession Deed; or |
(b) | the
legality, validity or enforceability in other jurisdictions of that or any other term of this Additional Facility U Accession Deed. |
46. | Clause 46 (Jurisdiction) of the Credit Agreement is incorporated into this Additional Facility U Accession Deed as if set out in full and as if references in that clause to “this Agreement” or a “Relevant Finance Document” are to this Additional Facility U Accession Deed. |
47. | This Additional Facility U Accession Deed may be executed in any
number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Additional Facility U Accession Deed by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Additional Facility U Accession Deed. |
48. | This Additional Facility U Accession Deed and any non-contractual obligations arising out of or in connection with it are governed by, and construed in accordance with, English law. |
49. | ACCESSION
TO THE HYD INTERCREDITOR AGREEMENT |
50. | ACCESSION TO THE GROUP INTERCREDITOR AGREEMENT |
51. | ACCESSION TO THE SECURITY TRUST AGREEMENT |
Additional Facility U Lender | Facility U
Commitment (USD) |
VMED O2 UK Financing I plc | 1,350,000,000 |
Total | 1,350,000,000 |
1. | Corporate Documents |
(a) | a copy of its up-to-date constitutional documents or a certificate of an authorised officer of the Company or the Borrower (as applicable) confirming that
the Company or the Borrower (as applicable) has not amended its constitutional documents in a manner which could reasonably be expected to be materially adverse to the interests of the Lenders since the date an officer’s certificate in relation to the Company or the Borrower (as applicable) was last delivered to the Facility Agent; |
(b) | a copy of a board resolution of the management board of such person approving, in the case of the Company and the Borrower, its entry into this Additional Facility
U Accession Deed; and |
(c) | a duly completed certificate of a duly authorised officer of the Company and the Borrower in the form attached in Part 3 of Schedule 9 (Form of Additional Facility Officer’s Certificate) of the Credit Agreement with such amendments as the Facility Agent may agree. |
2. | Designation |
(a) | designating Facility U as New Senior Liabilities in accordance with Clause 12 (New Senior Liabilities) of the Group Intercreditor Agreement; and |
(b) | designating Facility U as Designated Senior Liabilities in accordance with Clause 8.2 (Designated Senior Liabilities) of the HYD Intercreditor Agreement. |
3. | Legal
Opinions |
(a) | the due incorporation, capacity and authorisation of the Company and the Borrower; and |
(b) | the
relevant obligations to be assumed by the Borrower and the Company under the Relevant Finance Documents to which it is a party being legal, valid, binding and enforceable against it. |
4. | Acceding Borrower/Guarantor and Permitted Affiliate Parent designation |
1. | Group Intercreditor Agreement: amend the Group Intercreditor Agreement to include the following definition of Encumbrance: |
(a) | a
mortgage, charge, pledge, lien, encumbrance or other security interest securing any obligation of any person; |
(b) | any arrangement under which money or claims to, or the benefit of, a bank or other account may be applied, set-off or made subject to a combination of accounts so as to effect payment of sums owed or payable to any person; or |
(c) | any other type of agreement or preferential arrangement (including title transfer and retention arrangements) having a similar effect.” |
1. | Break
Costs: amend sub-paragraph (a)(i) of the definition of “Break Costs” in Clause 1.1 (Definitions) to include the words “and the effect of any interest rate floor” after the words “excluding the Margin” in parentheses. |
2. | Interest: in Clause 14.2 (Duration) delete the words “(i) one, two, three or six months in respect of each Term Facility, or, in each case, such other period of up to 12 months as all the Lenders holding Commitments (in the case of the first Interest Period for a Term Facility Advance, and thereafter, Outstandings) under the relevant Facility may agree with the Borrower and
(ii)” and replace them with the following words: |
3. | Permitted Financing Action: |
(a) | amend paragraph (c) of
Clause 12.4 (Miscellaneous provisions) to add the following words to the end of that paragraph: |
(b) | amend Clause 32.1 (Payments to the Facility Agent) to add the following words to the end of that Clause: |
(c) | amend
Clause 32.3 (Clear Payments) to add the following words to the end of that Clause: |
1. | ERISA |
(a) | Delete the definition of “Reportable Event” in Clause 1.1 (Definitions). |
(b) | Delete
Clause 23.22 (ERISA) and replace it with the following: |
(a) | Each Obligor must ensure that it shall not at any time establish, maintain, contribute to, or be required or permitted to contribute to, any Plan, or become a guarantor with respect to any Plan. |
(b) | No Obligor will take any action that it knows is reasonably likely to cause it to incur any liability in respect of any Plan of an ERISA Affiliate.”
|
2. | Amendments |
(a) | Delete Clause 42.12 (Replacement of Screen Rate). |
(b) | Amend Clause 42.13(b)(ii) (Disenfranchisement of Defaulting Lenders) to delete “or (c)” and replace it with “, (c) or (d)”. |
3. | Releases |
(a) | Add
a new paragraph (f) to Clause 42.7 (Release of Guarantees and Security) as follows: |
(b) | Add
a new paragraph (g) and a new paragraph (h) to Clause 42.7 (Release of Guarantees and Security) as follows: |
(c) | Insert new definitions in Clause 1.1 (Definitions) as follows: |
4. | Permitted Security |
(a) | At sub-paragraph (xi), replace the words “over or affecting any asset acquired by a member of the Bank Group” with “over or affecting any asset (including any shares) acquired by a member of the Bank Group”. |
(b) | At
sub-paragraph (xii), replace the words “over or affecting any asset of any company which becomes a member of the Bank Group” with “over or affecting any asset of, or shares in, any company which becomes a member of the Bank Group”. |
(c) | At sub-paragraph (x), insert the words “or any Refinancing Indebtedness in respect of such Financial Indebtedness” after reference to “Clause 23.13 (Restrictions on Financial Indebtedness)”. |
(d) | At sub-paragraph (xi), insert
the words “and Security Interests created, incurred or assumed in connection with any Refinancing Indebtedness in respect of Financial Indebtedness pursuant to which any Security Interest over or affecting any asset (including any shares) acquired by a member of the Bank Group after the Signing Date was granted” after the first reference to “the relevant acquisition or transaction”. |
(e) | At sub-paragraph (xii), insert the words “and Security Interests created, incurred or assumed in connection with any Refinancing Indebtedness in respect of Financial Indebtedness pursuant to which any Security Interest over or affecting any asset of, or shares in, any company which becomes a member of the Bank Group after the Signing Date was granted”
after the first reference to “the relevant acquisition or transaction”. |
(f) | At sub-paragraph (xlvi), delete “three” and replace with “five”. |
5. | Increase Lender |
6. | Loans
and Guarantees |
(a) | Amend Clause 23.15 (Loans and guarantees) at sub-paragraph (m)(iv) to delete the reference to “is likely to” and replace with “will”. |
(b) | Delete sub-paragraph (q) of Clause 23.15 (Loans and guarantees) and replace it with the following: |
(c) | Amend Clause 23.15(u) (Loans and guarantees) to delete “(xvi)”. |
(d) | Delete
Clause 23.15(gg) (Loans and guarantees) and replace it with the following: |
7. | Ancillary Facility Lender |
8. | Wider
Group |
9. | Share Capital |
10. | Intercreditor
Arrangements |
(a) | Amend the intercreditor arrangements under the Group Intercreditor Agreement, the HYD Intercreditor Agreement and the Security Trust Agreement, by entering into the amendment and restatement deed contained in Schedule 7 (ICA Amendment and Restatement Deed) to this Additional Facility U Accession Deed (the “ICA Amendment and Restatement Deed”), in order to amalgamate such documents into a single document, the form of which shall be substantially similar to that contained in Schedule 2 (Amended Group ICA) of the ICA Amendment and Restatement Deed (the “New ICA”),
together with such minor, technical, conforming or other necessary changes required by the Company to bring the New ICA into effect. |
(b) | Contemporaneously with the amendment in paragraph 10(a) above being effected, the following changes shall be made to the Credit Agreement: |
(i) | Amend the definition of Group Intercreditor Agreement to include the date on which the amendment and restatement in paragraph 10(a) above becomes effective and make
any conforming and/or consequential changes necessary as a result of the adoption of the New ICA. |
(ii) | Subject to the amendments detailed in paragraphs 10(b)(xv), 10(b)(xvi), 10(b)(xvii) and 10(b)(xviii) below, amend the Credit Agreement to delete all references to “HYD Intercreditor Agreement”, “Supplemental HYD Intercreditor Agreement” and “Security Trust Agreement” and make any conforming and/or consequential changes necessary as a result of such deletions. |
(iii) | Delete
limb (e) of the definition of Additional Senior Secured Notes and replace it with the following: |
(iv) | Delete
limb (b) of the definition of Bank Group and amend limb (c) of the definition of Bank Group to delete the words “including for the purposes of the definition of “Bank Group” under the Group Intercreditor Agreement” before the colon. |
(v) | Delete limb (b) of the definition of Instructing Group and make any necessary consequential changes to the definition of Instructing Group as a result of such deletion. |
(vi) | Amend limb (c)(ii) of the definition of Subordinated Funding to delete reference to “Intergroup Debtor”
and “Intergroup Creditor” and replace them with “Debtor” and “Intra-Group Lender”, respectively. |
(vii) | Delete Clause 23.32 (Undertakings in Respect of the Group Intercreditor Agreement) and replace it with the following: |
(viii) | Amend Clause 26.11 (Unlawfulness) to delete reference to “Intergroup Creditor” and replace it with “Intra-Group Lender”. |
(ix) | Amend
Clause 26.12 (Repudiation) to delete reference to “Intergroup Creditor” and replace it with “Intra-Group Lender”. |
(x) | Amend Clause 29.18 (Accession documents) to delete reference to “Deed of Accession” and replace it with “Creditor Accession Undertaking”. |
(xi) | Delete
Clause 29.19 (Security Trustee). |
(xii) | Amend paragraph 7 of Schedule 8 (Accession Documents) to delete the words “Intergroup Creditor, Intergroup Debtor” in the second line and replace them with “Intra-Group Lender, Debtor”. |
(xiii) | Delete paragraph 3 of Part 2 (Conditions Precedent to Additional Facility Utilisation) of Schedule 9. |
(xiv) | Amend
paragraph 3(c) of Schedule 19 (Agreed Security Principles) to replace the word “Relevant” in the second line with “applicable”. |
(xv) | Amend limb (e)(ii) of the definition of Additional High Yield Notes to delete “HYD Intercreditor Agreement or a Supplemental HYD Intercreditor Agreement” and replace with “Group Intercreditor Agreement”. |
(xvi) | Amend limb (c)(ii) of the definition of High Yield Refinancing to delete “HYD Intercreditor Agreement or a Supplemental
HYD Intercreditor Agreement” and replace with “Group Intercreditor Agreement”. |
(xvii) | Amend limb (c)(ii) of the definition of Parent Intercompany Debt to delete “HYD Intercreditor Agreement or a Supplemental HYD Intercreditor Agreement” and replace with “Group Intercreditor Agreement”. |
(xviii) | Amend Clause 23.14(c)(x)(A) (Restricted Payments) to delete “High Yield Trustee Amounts (as such term is defined in the HYD Intercreditor Agreement)” and replace
with “High Yield Notes Trustee Amounts (as such term is defined in the Group Intercreditor Agreement)”. |
(xix) | Amend Clause 23.15(m)(i) (Loans and guarantees) to delete “High Yield Trustee Amounts (as such terms are defined in the HYD Intercreditor Agreement)” and replace with “High Yield Notes Trustee Amounts (as such terms are defined in the Group Intercreditor Agreement)”. |
(xx) | Delete Clause 42.7(d)(i) (Release of Guarantees and Security)
and replace it with: |
(xxi) | Amend Clause 28 (Guarantee and Indemnity) by deleting all references to “Hedging Obligor” and make any conforming and/or consequential changes necessary as a result of such deletions (provided that, for the avoidance of doubt, such deletions and amendments shall be without prejudice to any rights and obligations
accrued with respect to those provisions at such time). |
(xxii) | Delete the definition of Relevant Finance Parties and replace it with the following: |
(xxiii) | Delete the definition of Finance Parties and replace it with the
following: |
(c) | Delete the definition of Barclays Intercreditor Agreement and limb (i) of the definition of Relevant Finance Documents. |
11. | Unrestricted
Subsidiary |
12. | UPC
Ireland |
13. | Permitted Financial Indebtedness |
(a) | Delete Clause 23.13(b)(xi) (Restrictions
on Financial Indebtedness) and replace it with the following: |
(b) | Amend Clause 23.13(b)(xxix) (Restrictions on Financial Indebtedness) to insert “commodity trading or brokerage accounts,” after “overdraft,”. |
(c) | Amend Clause 23.13(b)(xxx) (Restrictions on Financial Indebtedness) to delete reference to “otherwise permitted under this Agreement”. |
(d) | Amend
Clause 23.13(b)(xxxvii)(B) (Restrictions on Financial Indebtedness) to delete “three” and replace it with “five”. |
(e) | Amend Clause 23.13(b)(xxxv) (Restrictions on Financial Indebtedness) to insert “after giving pro forma effect to the relevant acquisition or other transaction and the incurrence of such Financial Indebtedness pursuant to this paragraph” immediately after “(2) the ratio of Senior Net Debt to Annualised EBITDA”. |
14. | Financial
Indebtedness |
(a) | Delete limb (f)(ix) of the definition of Financial Indebtedness and replace it with the following: |
(b) | Insert a new definition in Clause 1.1 (Definitions) as follows: |
15. | Equity Equivalent Funding |
16. | Parent Intercompany Debt |
17. | Increased Costs |
(a) | Amend Clause 18.1 (Increased Costs) to delete both references to “the Signing Date” and replace with “the later of the date upon which (i) the Relevant Finance Party, who has incurred any Increased Cost which is the subject of this Clause, becomes a Party in accordance with the provisions
this Agreement or (ii) in the case of a Lender where the Facility under which such Lender initially had a Commitment when it became a Party has been cancelled, the first day of the Availability Period for the Facility under which such Lender has a Commitment (it being acknowledged that, where such Lender has Commitments under more than one Facility and such Facilities’ Availability Periods commenced on different dates, the relevant date shall be the earlier of the dates)”. |
(b) | Amend the definition of CRD IV in Clause 18.3(b) (Exceptions) to delete “and the prudential supervision of credit institutions” immediately after “the activity of credit institutions”. |
18. | Legal
Reservations |
(a) | Insert a new definition in Clause 1.1 (Definitions) as follows: |
(b) | Amend Clause 21.4(a) (Legal validity) to delete reference to “any relevant reservations or qualifications as to matters
of law contained in any legal opinion delivered under this Agreement” and replace with reference to “the Legal Reservations”. |
(c) | Amend Clauses 21.4(b) and (c) (Legal validity) to delete reference to “any relevant reservation or qualification as to matters of law contained in any legal opinion referred to in paragraph (a) above” and replace with reference to “the Legal Reservations”. |
(d) | Amend
Clause 21.6 (Consents) to delete reference to “any relevant reservations or qualifications contained in any legal opinion referred to in Clause 21.4(a) (Legal validity) above” and replace with reference to “the Legal Reservations”. |
(e) | Amend Clauses 21.22 (Claims Pari Passu) and 36.2(b)(iii) (Resignation of a Borrower) and paragraph (c) of the form of Resignation Letter contained in Schedule 17 (Form of Resignation Letter) to delete reference to “any relevant reservations or qualifications contained in any legal opinion referred to in Clause 21.4(a)
(Legal validity)” and replace with reference to “the Legal Reservations”. |
(f) | Amend paragraph 3 of Schedule 8 (Accession Documents) to delete reference to “the reservations referred to in Clause 21.4(a) legal validity” and replace with reference to “the Legal Reservations”. |
(g) | Amend paragraph 3 of Schedule 19 (Agreed Security Principles) to delete reference to
“any legal opinion referred to in Clause 21.4(a)” and replace with reference to “the Legal Reservations”. |
(h) | Delete the definition of Legal Opinions in Clause 1.1 (Definitions). |
19. | Financial Covenant |
(a) | Amend the definition of Senior Debt
in Clause 22.1 (Financial definitions) to delete limb (c) of such definition and replace it with the following: |
(b) | Amend
the definition of Total Debt in Clause 22.1 (Financial definitions) to delete limb (c) of such definition and replace it with the following: |
20. | Restricted
Payment |
(a) | Amend the definition of Permitted Payment to delete “(xvi)” from Clause 23.14(c)(xiv) (Restricted Payments). |
(b) | Amend the definition of Permitted Payment to delete each reference to “three” from Clause 23.14(c)(xli) (Restricted Payments) and replace them with “five”. |
(c) | Amend
the definition of Permitted Payment by amending the current Clause 23.14(c)(xli) (Restricted Payments) so that it becomes Clause 23.14(c)(xliii) (Restricted Payments) (and update all references in the Credit Agreement to Clause 23.14(c)(xli) (Restricted Payments) accordingly) and inserting: |
(i) | a new Clause 23.14(c)(xli) (Restricted Payments) as follows: |
(ii) | a new Clause 23.14(c)(xlii) (Restricted Payments) as follows: |
(d) | Insert the following definitions in Clause 1.1 (Definitions) in their correct alphabetic positions in connection with the new Clause 23.14(c)(xlii) (Restricted Payments): |
21. | 80% Security Test |
22. | Bank
Group |
23. | Intra-Group Services |
(a) | delete reference to “on arms’ length terms” in limb (b); |
(b) | insert “including stock and other incentive plans,” into limb (c)(ii) after “other benefits,”; |
(c) | insert “or develop”
into limb (c)(iii) after “to buy”; |
(d) | delete limb (c)(iv) and replace with the following: |
(e) | delete “, in the ordinary course of business and on terms not materially less favourable to the relevant member of the Bank Group than arms’ length
terms,” in limb (d). |
24. | Holding Company Expenses |
25. | Agreed Security Principles |
26. | Business |
27. | Resignation of Obligors |
28. | Change in Tax Law |
29. | Default |
30. | Acceleration |
31. | Security
Trustee replacement |
32. | Spectrum Licenses |
33. | Transfers
by Lenders |
AMENDMENT AND RESTATEMENT DEED |
Page | |||
1. | INTERPRETATION | 4 | |
2. | AMENDMENT
OF THE GROUP ICA, HIGH YIELD ICA AND SECURITY TRUST AGREEMENT | 5 | |
3. | BARCLAYS INTERCREDITOR | 5 | |
4. | REPRESENTATIONS | 5 | |
5. | GUARANTEE
AND SECURITY | 6 | |
6. | ACKNOWLEDGEMENTS | 6 | |
7. | CONFIRMATIONS | 7 | |
8. | MISCELLANEOUS | 8 | |
9. | GOVERNING
LAW | 9 | |
SCHEDULE 1 CONDITIONS PRECEDENT | 10 | ||
SCHEDULE 2 AMENDED GROUP ICA | 11 |
(1) | THE BANK OF NOVA SCOTIA in its capacity as “Senior Agent” under, and as defined in, the High Yield ICA, as “Facility Agent” under, and as defined in, the Group ICA and the Security Trust Agreement and, from the Effective Date, as “Effective Date Senior Agent” under, and as defined in, the Amended Group ICA (the “Effective Date Senior Agent”); |
(2) | THE
BANK OF NEW YORK MELLON in its capacity as “High Yield Trustee” under, and as defined in, the High Yield ICA, and from the Effective Date as “High Yield Notes Trustee” under, and as defined in, the Amended Group ICA (the “High Yield Notes Trustee”); |
(3) | BNY MELLON CORPORATE TRUSTEE SERVICES LIMITED in its capacity as a “Senior Finance Party” under, and as defined in, the High Yield ICA, an “Authorised Representative” under, and as defined in, the Group ICA and the Security Trust Agreement and, from the Effective Date, as “Effective Date Senior Secured Notes Trustee” under, and as defined in, the Amended Group ICA (the “Effective
Date Senior Secured Notes Trustee”); |
(4) | THE EFFECTIVE DATE HEDGE COUNTERPARTIES named in Schedule 10 (Effective Date Hedge Counterparties) of the Amended Group ICA; |
(5) | VIRGIN MEDIA INVESTMENT HOLDINGS LIMITED a private limited company incorporated in England and Wales with registered number 03173552 and having its registered address at 500 Brook Drive, Reading, United Kingdom RG2 6UU (“the Company”); |
(6) | THE
EFFECTIVE DATE SUBORDINATED CREDITORS named in Schedule 7 (Effective Date Subordinated Creditors) of the Amended Group ICA; |
(7) | THE EFFECTIVE DATE DEBTORS named in Schedule 8 (Effective Date Debtors) of the Amended Group ICA; |
(8) | THE EFFECTIVE DATE INTRA-GROUP LENDERS named in Schedule 9 (Effective Date Intra-Group Lenders) of the Amended Group ICA; |
(9) | THE
EFFECTIVE DATE SECURITY GRANTORS named in Schedule 11 (Effective Date Security Grantors) of the Amended Group ICA; and |
(10) | DEUTSCHE BANK AG, LONDON BRANCH in its capacity as “Security Trustee” under, and as defined in, the Security Trust Agreement, the High Yield ICA and the Group |
(A) | We refer to: |
(a) | the security trust agreement dated 3 March 2006 as amended and restated on 19 January 2010 and made between, among others, the Security Agent and the
Company (the “Security Trust Agreement”); |
(b) | the group intercreditor deed dated 3 March 2006 as amended and restated on 13 June 2006, 10 July 2006, 31 July 2006, 15 May 2008, 30 October 2009, 8 January 2010 and 19 April 2017 and made between, among others, the Security Agent and the Company (the “Group ICA”), and as further amended and restated by this Deed (the “Amended Group ICA”); |
(c) | the
high yield intercreditor deed dated 13 April 2004 as amended and restated on 30 December 2009 and made between, among others, Virgin Media Finance PLC and the Company (the “High Yield ICA”); and |
(d) | the intercreditor agreement dated 3 March 2006 and made between, amongst others, the Security Agent, Cable London Limited and Barclays Bank PLC (the “Barclays Intercreditor”). |
(B) | This
Deed is supplemental to and amends and restates the Group ICA, the High Yield ICA and the Security Trust Agreement. |
(C) | The Barclays Discharge Date (as defined in the Barclays Intercreditor) has occurred and as such, the Barclays Intercreditor is no longer in force and effect. |
(D) | Pursuant to Clause 21.2 (Amendments) of the Group ICA, the Instructing Party, the Hedge Counterparties, the Facility Agent, the Security Trustee, the Senior Lenders, the Relevant Agent (each such term as defined
in the Group ICA) [and the Effective Date Senior Secured Notes Trustee on behalf of itself as an Authorised Representative, and each other Senior Finance Party in respect of a Series of Senior Liabilities] (each such term as defined in the Group ICA) have consented, subject to Clause 2(b) (Amendment of the Group ICA, High Yield ICA and Security Trust Agreement) of this Deed, to the amendments to the Group ICA being supplemented, amended and restated into the Amended Group ICA as contemplated by Clause 2(a) (Amendment of the Group ICA) of this Deed. [Accordingly, the Effective Date Senior Agent (in its capacity as Relevant |
(E) | Pursuant to Clause 10.1 (Amendments) of the Security Trust Agreement, the relevant Instructing Party (as defined in the Group ICA), the Facility Agent, the Security Trustee, the Senior Lenders and the Hedge Counterparties (each such term as defined in the Security Trust Agreement) have consented, subject to Clause 2(b) (Amendment of the Group ICA, High Yield ICA and Security Trust Agreement) of this Deed, to the Security Trust Agreement being supplemented, amended and restated into the Amended Group ICA as contemplated by Clause 2(a) (Amendment of the Group ICA) of this Deed. Accordingly, the Security Agent (in its capacity
as Security Trustee under and as defined in the Security Trust Agreement) is authorised to sign this Deed on behalf of the other Beneficiaries (as defined in the Security Trust Agreement). |
(F) | Pursuant to Clause 15.2 (Amendments) of the High Yield ICA, the Instructing Group, the Security Trustee, the Majority High Yield Creditors, the Senior Lenders and [the Hedge Counterparties] (each such term as defined in the High Yield ICA) have consented, subject to Clause 2(b) (Amendment of the Group ICA, High Yield ICA and Security Trust Agreement) of this Deed, to the High Yield ICA being supplemented, amended and restated into the Amended Group ICA as contemplated by Clause 2(a) (Amendment of the Group ICA) of this Deed. Accordingly, the Effective Date Senior
Agent (in its capacity as Senior Agent under and as defined in the High Yield ICA) and the High Yield Notes Trustee (as High Yield Trustee under and as defined in the High Yield ICA) are authorised to sign this Deed on behalf of the other Senior Finance Parties (as defined in the High Yield ICA). |
(G) | On or prior to the date of this Deed, the High Yield Discharge Date (as defined in the High Yield ICA) has occurred. The High Yield Notes Trustee (in its capacity as High Yield Trustee under, and as defined in, the High Yield ICA) is only party to this Deed to acknowledge that the High Yield Discharge Date has occurred and that no High Yield Trustee Amount or High Yield Trustee Direct Claims (each as defined in the High Yield ICA) are outstanding or shall
arise. |
(H) | [Pursuant to [insert relevant additional facility accession deeds, SSN indentures and HCP consent letters]1 (the “Consent Documents”), the Effective Date Senior Agent [and the Effective Date Senior Secured Notes Trustee (as applicable)] [is/are] required to, at the request of the Company, enter into a new intercreditor agreement substantially in the form attached to such Consent Documents on behalf of the creditors
party to the Consent Documents.] |
(I) | Each Party acknowledges and agrees that the Amended Group ICA is substantially in the form attached to the Consent Documents. |
(J) | The
Company has requested (and hereby requests) that the Effective Date Senior Agent and the Effective Date Senior Secured Notes Trustee enter into the Amended Group ICA. Accordingly, the Effective Date Senior Agent and the Effective Date Senior Secured Notes Trustee [is/are] authorised to sign this Deed on behalf of all of the Lenders. |
1. | INTERPRETATION |
1.1 | Definitions |
(a) | In
this Deed: |
(b) | Capitalised terms defined in the Amended Group ICA have, unless expressly defined in this Deed, the same meaning in this Deed. |
1.2 | Construction |
(a) | The provisions of Clause 1.2 (Construction) of the Group ICA apply to this Deed
as though they were set out in full in this Deed except that references to “this Agreement” are to be construed as references to this Deed. |
(b) | Where paragraph or Clause numbers in the Group ICA, the High Yield ICA or the Security Trust Agreement are referred to in any other Finance Document in force on the Effective Date, to the extent such paragraph or Clause has been superseded by the Amended Group ICA pursuant to Clause 2(a) (Amendment of the Group ICA, High Yield ICA and Security Trust Agreement) of this Deed, such paragraph or Clause numbers shall be read and construed, for the purpose of the relevant Finance Document only, so that the equivalent provision in the Amended Group ICA is instead referred to in each such Finance Document. |
(c) | Subject
to Clause 2(b) (Amendment of the Group ICA, High Yield ICA and Security Trust Agreement) of this Deed and notwithstanding any provision to the contrary in any Finance Document entered into prior to the Effective Date, |
(d) | Where
paragraph or Clause numbers have changed in the Original Senior Facilities Agreement as a result of amendments to the Original Senior Facilities Agreement prior to the Effective Date, and such paragraph and Clause numbers are referred to in any other Finance Document in force on the Effective Date, such paragraph or Clause numbers shall be read and construed in the Original Senior Facilities Agreement, for the purposes of the relevant Finance Document only, so that the equivalent provision in the Original Senior Facilities Agreement (as at the Effective Date) is instead referred to in each such Finance Document. |
2. | AMENDMENT OF THE GROUP ICA, HIGH YIELD ICA AND SECURITY TRUST AGREEMENT |
(a) | With
effect on and from the Effective Date, the Group ICA, the High Yield ICA and the Security Trust Agreement will be supplemented and amended and restated by this Deed so that they shall then be in effect in the form set out at Schedule 2 (Amended Group ICA) to this Deed. |
(b) | Notwithstanding paragraph (a) above, to the extent relevant in respect of any Pre-Effective Date Security Documents, the definitions of “Beneficiaries”, “Designated Secured Obligations” and “Secured Obligations” (in the Group ICA and the Security Trust Agreement) and all other definitions in the Group ICA and Security Trust Agreement (to the extent they are used within the definitions of “Beneficiaries”, “Designated Secured Obligations” and “Secured
Obligations” in the Group ICA and Security Trust Agreement) shall remain in full force and effect. |
3. | BARCLAYS INTERCREDITOR |
4. | REPRESENTATIONS |
(a) | The
representations and warranties set out in Clause 11.9 (Subordinated Creditor Representations) of the Amended Group ICA are made on the date of this Deed by each Effective Date Subordinated Creditor. |
(b) | The representations and warranties set out in Clause 12.8 (Representations: Intra- Group Lenders) of the Amended Group ICA are made on the date of this Deed by each Effective Date Intra-Group Lender. |
5. | GUARANTEE
AND SECURITY |
(a) | confirms its acceptance of the Amended Group ICA; |
(b) | agrees that it is bound as a Debtor or as a Security Grantor (as applicable) by the terms of the Amended Group ICA; and |
(c) | confirms
and accepts that: |
(i) | any Transaction Security created or given by it under a Pre-Effective Date Security Document will: |
(A) | continue in full force and effect on the terms of the respective Finance Documents (including the Amended Group ICA, to the extent applicable); and |
(B) | subject to Clause 2 (Amendment
of the Group ICA, High Yield ICA and Security Trust Agreement) of this Deed, continue to extend to the Secured Obligations, under and as defined in paragraph [(a) or (b)] of that definition (as applicable) in the Amended Group ICA; and |
(ii) | any guarantee or indemnity created or given by it under the Original Senior Facilities Agreement will continue in full force and effect on the terms of the respective Finance Documents (including the Amended Group ICA) and extend to all new obligations assumed by any Debtor under the Finance Documents as amended and restated by this Deed (including, but not limited to, any new obligations under the Amended Group ICA), subject to any applicable guarantee limitations set out in any relevant
Finance Documents. |
6. | ACKNOWLEDGEMENTS |
(a) | On the Effective Date, the High Yield Notes Trustee (in its capacity as High Yield Trustee under, and as defined in, the High Yield ICA) agrees and acknowledges that it shall cease to be a party to the High Yield ICA, that the High Yield Discharge Date has occurred and that no High Yield Trustee Amount or High Yield Trustee |
(b) | [Acknowledgement of termination of Barclays Intercreditor to be included if applicable (i.e. if the discharge date has occurred but the agreement is still technically in force)] |
(c) | [●] |
7. | CONFIRMATIONS |
(a) | The Bank of Nova Scotia (as “Facility Agent” under the Group ICA and the Security Trust Agreement and as “Senior Agent” under the High Yield ICA) shall become the “Effective Date Senior Agent” under the Amended Group ICA; |
(b) | BNY Mellon Corporate Trustee Services Limited (as a “Senior Finance Party” under the High Yield ICA, an “Authorised Representative” under the Group ICA and the Security Trust Agreement) shall become
a “Senior Secured Notes Trustee” under the Amended Group ICA; |
(c) | Deutsche Bank AG, London Branch (as “Security Trustee” under the High Yield ICA, the Group ICA and the Security Trust Agreement) shall become the “Security Agent” under the Amended Group ICA; |
(d) | each Effective Date Subordinated Creditor shall become party to the Amended Group ICA in the capacity of “Subordinated Creditor” and, for such purposes (i) each Party agrees that this Deed shall operate as a Creditor Accession Undertaking under
the Amended Group ICA and (ii) each Effective Date Subordinated Creditor gives the agreements, confirmations and undertakings to be given by Subordinated Creditors in the form of Creditor Accession Undertaking set out in Schedule 2 (Form of Creditor Accession Undertaking) of the Amended Group ICA as if they were set out in full in this Deed; |
(e) | each Effective Date Debtor (each an “Obligor” under the Group ICA) shall become party to the Amended Group ICA in the capacity of “Debtor” [and for, such purposes (i) each Party agrees that this Deed shall operate as a Debtor Accession Deed under the Amended Group ICA and (ii) each Effective Date Debtor gives the agreements, confirmations and undertakings to be given by Debtors in the form of
Debtor Accession Deed set out in Schedule 1 (Form of Debtor Accession Deed) of the Amended Group ICA as if they were set out in full in this Deed]; |
(f) | each Effective Date Intra-Group Lender shall become party to
the Amended Group ICA in the capacity of “Intra-Group Lender” and, for such purposes (i) each Party agrees that this Deed shall operate as a Creditor Accession Undertaking under the Amended Group ICA and (ii) each Effective Date Intra-Group Lender gives the agreements, confirmations and undertakings to be given by Intra-Group Lenders in the form of Creditor Accession Undertaking set out in Schedule 2 (Form of Creditor Accession Undertaking) of the Amended Group ICA as if they were set out in full in this Deed; |
(g) | each Effective Date Security Grantor shall become party to the Amended Group ICA in the capacity of “Security Grantor” and, for such purposes (i) each Party agrees that this Deed shall operate as a Debtor Accession Deed under
the Amended Group ICA and (ii) each Effective Date Security Grantor gives the agreements, confirmations and undertakings to be given by Security Grantors in the form of Debtor Accession Deed set out in Schedule 1 (Form of Debtor Accession Deed) of the Amended Group ICA as if they were set out in full in this Deed; and |
(h) | each Effective Date Hedge Counterparty [which was a party to the Group ICA as a “Hedging Counterparty” immediately prior to the Effective Date] shall become a “Hedge Counterparty” under the Amended Group ICA [and, for such purposes (i) each Party agrees that this Deed shall operate as a Creditor Accession Undertaking under the Amended Group ICA and (ii) each Effective Date Hedge Counterparty gives the agreements, confirmations
and undertakings to be given by Hedge Counterparties in the form of Creditor Accession Undertaking set out in Schedule 2 (Form of Creditor Accession Undertaking) of the Amended Group ICA as if they were set out in full in this Deed]. |
8. | MISCELLANEOUS |
(a) | The Effective Date Senior Agent and the Company agree that each of this Deed and the Amended Group ICA are designated as Finance Documents. |
(b) | No
part of this Deed is intended to or will create any registerable Security. |
(c) | Subject to the terms of this Deed: |
(i) | the Group ICA, the High Yield ICA and the Security Trust Agreement will remain in full force and effect and, on and from the Effective Date, the Group ICA, the High Yield ICA, the Security Trust Agreement and this Deed will be read and construed as one document as set out in Schedule 2 (Amended Group ICA); and |
(ii) | except
as otherwise provided in this Deed, the Finance Documents remain in full force and effect. |
(d) | The provisions of Clauses 31 (Counterparts) and 35 (Enforcement) of the Amended Group ICA apply to this Deed as though they were set out in full in this Deed except that references to “this Agreement” are to be construed as references to this Deed. |
9. | GOVERNING LAW |
1. | Constitutional Documents |
2. | Authorisations |
(a) | A
copy of a resolution of the board of directors (or equivalent) of each Effective Date Debtor and each Effective Date Security Grantor: |
(i) | approving the terms of, and the transactions contemplated by, this Deed and resolving that it execute and deliver this Deed; and |
(ii) | authorising a specified person or persons to execute and deliver this Deed. |
(b) | A
specimen of the signature of each person authorised by the resolutions referred to in paragraph (a) above. |
(c) | A certificate of an authorised signatory of each Effective Date Debtor and each Effective Date Security Grantor certifying that each copy of the documents specified in this Schedule 1 (Conditions precedent) and supplied by that Effective Date Debtor or Effective Date Security Grantor is a true copy and in full force and effect as at a date no earlier than the date of this Deed. |
3. | Legal
opinions |
(a) | Legal opinion of Allen & Overy LLP, London, as legal advisers to the Effective Date Senior Agent. |
(b) | Legal opinion of Ropes & Gray International LLP, as legal advisers to the Effective Date Debtors as to matters of Delaware law. |
INTERCREDITOR AGREEMENT3 |
Page | |||
1. | DEFINITIONS
AND INTERPRETATION | 3 | |
2. | RANKING AND PRIORITY | 78 | |
3. | SENIOR
LENDER LIABILITIES, PARI PASSU DEBT LIABILITIES AND SENIOR SECURED NOTES LIABILITIES | 81 | |
4. | HEDGE COUNTERPARTIES AND HEDGING LIABILITIES | 90 | |
5. | GUARANTEE
AND INDEMNITY TO HEDGE COUNTERPARTIES | 101 | |
6. | ISSUE OF SENIOR SECURED NOTES | 108 | |
7. | ENTRY
INTO PARI PASSU DEBT DOCUMENTS | 109 | |
8. | SECOND LIEN CREDITORS AND SECOND LIEN LIABILITIES | 109 | |
9. | HIGH
YIELD CREDITORS AND HIGH YIELD LIABILITIES | 122 | |
10. | UNSECURED CREDITORS AND UNSECURED LIABILITIES | 138 | |
11. | SUBORDINATED
LIABILITIES | 143 | |
12. | INTRA-GROUP LENDERS AND INTRA-GROUP LIABILITIES | 149 | |
13. | EFFECT
OF INSOLVENCY EVENT | 153 | |
14. | TURNOVER OF RECEIPTS | 161 | |
15. | REDISTRIBUTION | 165 | |
16. | ENFORCEMENT
OF TRANSACTION SECURITY | 166 | |
17. | PROCEEDS OF DISPOSALS | 169 | |
18. | APPLICATION
OF PROCEEDS | 179 | |
19. | EQUALISATION | 184 | |
20. | REFINANCING
OF PRIMARY CREDITOR LIABILITIES | 188 | |
21. | THE SECURITY AGENT | 196 | |
22. | CHANGE
OF SECURITY AGENT | 208 | |
23. | CHANGES TO THE PARTIES | 210 |
Page | |||
24. | COSTS AND EXPENSES | 223 | |
25. | INDEMNITIES | 225 | |
26. | INFORMATION | 227 | |
27. | NOTICES | 231 | |
28. | PRESERVATION | 234 | |
29. | CONSENTS,
AMENDMENTS AND OVERRIDE | 235 | |
30. | NOTES TRUSTEE | 246 | |
31. | COUNTERPARTS | 256 | |
32. | BAIL-IN | 256 | |
33. | QFC
CREDIT SUPPORT | 256 | |
34. | GOVERNING LAW | 258 | |
35. | ENFORCEMENT | 258 | |
260 | |||
263 | |||
266 | |||
267 | |||
268 | |||
269 | |||
270 | |||
271 | |||
272 | |||
273 |
(1) | THE BANK OF NOVA SCOTIA as the Facility Agent under and as defined in the Original Senior Facilities Agreement (the “Effective Date Senior Agent”); |
(2) | [THE FINANCIAL
INSTITUTIONS that are Senior Arrangers as at the Effective Date (the “Effective Date Senior Arrangers”);] |
(3) | THE FINANCIAL INSTITUTIONS that are Senior Lenders as at the Effective Date (the “Effective Date Senior Lenders”); |
(4) | VIRGIN MEDIA INVESTMENT HOLDINGS LIMITED, a private limited company incorporated in England and Wales with registered number 03173552 and having
its registered address at 500 Brook Drive, Reading, United Kingdom RG2 6UU (the “Company”); |
(5) | THE EFFECTIVE DATE SUBORDINATED CREDITORS named in Schedule 7 (Effective Date Subordinated Creditors) (the “Effective Date Subordinated Creditors”); |
(6) | THE EFFECTIVE DATE DEBTORS named in Schedule 8 (Effective Date Debtors) (the “Effective Date Debtors”); |
(7) | THE
EFFECTIVE DATE INTRA-GROUP LENDERS named in Schedule 9 (Effective Date Intra-Group Lenders) (the “Effective Date Intra-Group Lenders”); |
(8) | DEUTSCHE BANK AG, LONDON BRANCH as security agent for the Secured Parties (the “Security Agent”); |
(9) | THE EFFECTIVE DATE HEDGE COUNTERPARTIES named in Schedule 10 (Effective Date Hedge Counterparties) (the “Effective
Date Hedge Counterparties”); |
(10) | [THE SECURITY GRANTORS named in Schedule 11 (Original Security Grantors) (the “Original Security Grantors”);] |
(11) | BNY MELLON CORPORATE TRUSTEE SERVICES LIMITED as the Senior Secured Notes Trustee as at the Effective Date (the “Effective Date Senior Secured Notes Trustee”); |
(12) | UPON
ACCESSION, each Subordinated Creditor; |
(13) | UPON ACCESSION, each Senior Agent; |
(14) | UPON
ACCESSION, each Second Lien Agent; |
(15) | UPON ACCESSION, each Second Lien Arranger; |
(16) | UPON ACCESSION, each Second Lien Lender; |
(17) | UPON
ACCESSION, each Second Lien Notes Trustee as trustee for the Second Lien Noteholders which such Second Lien Notes Trustee represents; |
(18) | UPON ACCESSION, each Hedge Counterparty which accedes to this Agreement in accordance with Clause 23.13 (Creditor Accession Undertaking); |
(19) | UPON ACCESSION, each Senior Secured Notes Trustee
as trustee for the Senior Secured Noteholders which such Senior Secured Notes Trustee represents; |
(20) | UPON ACCESSION, each High Yield Agent; |
(21) | UPON ACCESSION, each High Yield Lender; |
(22) | UPON
ACCESSION, each High Yield Notes Trustee as trustee for the High Yield Noteholders which such High Yield Notes Trustee represents; |
(23) | UPON ACCESSION, each Unsecured Agent; |
(24) | UPON ACCESSION, each Unsecured Lender; |
(25) | UPON
ACCESSION, each Unsecured Notes Trustee as trustee for the Unsecured Noteholders which such Unsecured Notes Trustee represents; |
(26) | UPON ACCESSION, each Pari Passu Debt Representative as trustee or representative for the Pari Passu Creditors which such Pari Passu Debt Representative represents and, to the extent required, each Pari Passu Creditor; |
(27) | UPON ACCESSION, each Debtor; |
(28) | UPON
ACCESSION, each Security Grantor; |
(29) | UPON ACCESSION, each Intra-Group Lender; |
(30) | UPON ACCESSION, each Senior Lender; and |
(31) | UPON
ACCESSION, each Senior Arranger. |
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
(a) | in
relation to a Senior Lender, has the meaning given to the term “Available Commitment” (or equivalent) in each Senior Facilities Agreement; |
(b) | in relation to a Second Lien Lender, has the meaning given to the term “Available Commitment” (or equivalent) in any Second Lien Facilities Agreement; |
(c) | in relation to a High Yield Lender, has the meaning given to any substantially equivalent term in eachs High Yield Facilities Agreement; |
(d) | in
relation to an Unsecured Lender, has the meaning given to the term “Available Commitment” (or equivalent) in each Unsecured Facilities Agreement; and |
(e) | in relation to a Pari Passu Creditor, has the meaning given to the term “Available Commitment” (or equivalent) in the relevant Pari Passu Debt Documents. |
(a) | in
relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law as described in the EU Bail-In Legislation Schedule from time to time; |
(b) | in relation to the United Kingdom (if a Withdrawal Event is effected by the United Kingdom) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial |
(c) | in relation to any other state, any analogous law from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law. |
(a) | on
which banks generally are open for business in London; |
(b) | if such reference relates to a date for the payment or purchase of any sum denominated in euro, which is a TARGET Day; |
(c) | if such reference relates to a date for the payment or purchase of any sum denominated in US$, on which banks generally are open for business in New York; and |
(d) | if
such reference relates to a date for the payment or purchase of any sum denominated in an additional currency or an optional currency (howsoever defined) under the relevant Secured Debt Document, High Yield Finance Document or Unsecured Finance Document (in each case other than Sterling, euro or Dollars), the principal financial centre of the country of that currency. |
(a) | in respect of a Hedging Agreement
or a Hedging Ancillary Document based on a 1992 ISDA Master Agreement, any step involved in determining the amount |
(b) | in respect of a Hedging Agreement
or a Hedging Ancillary Document based on a 2002 ISDA Master Agreement, any step involved in determining an Early Termination Amount (as defined in the 2002 ISDA Master Agreement) under section 6(e) of the 2002 ISDA Master Agreement; and |
(c) | in respect of a Hedging Agreement or a Hedging Ancillary Document not based on an ISDA Master Agreement, any step involved on a termination of the hedging transactions under that Hedging Agreement or Hedging Ancillary Document (as applicable) pursuant to any provision of that Hedging Agreement or Hedging Ancillary Document (as applicable) which has a similar effect to either provision referenced in paragraph (a) and paragraph (b) above. |
(a) | is created in favour of the Senior Secured Creditors and (if applicable) the Second Lien Finance Parties represented by the Security Agent as agent or trustee for the Senior Secured Creditors and (if applicable) the Second Lien Finance Parties in respect of the Senior Secured Liabilities and the Second Lien Liabilities; |
(b) | if
applicable, where it is not possible or advisable to secure the Senior Secured Liabilities and the Second Lien Liabilities in the same Transaction Security Document, is created in favour of either the Senior Secured Creditors or the |
(c) | if
applicable, in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Agent as agent or trustee for the Senior Secured Creditors and/or the Second Lien Finance Parties, is created in favour of: |
(i) | all the Senior Secured Creditors and/or the Second Lien Finance Parties (as the case may be) in respect of the Senior Secured Liabilities and/or the Second Lien Liabilities (as the case may be); or |
(ii) | the Security Agent under a parallel debt or joint and several creditorship structure for
the benefit of all the Senior Secured Creditors and/or the Second Lien Finance Parties, |
(a) | that
any offer, or indication of a potential offer, that a holder of any Second Lien Liabilities, any holder of High Yield Liabilities or any holder of Senior Secured Liabilities makes shall be considered by those running the Competitive Process against the same criteria as any offer, or indication of a potential offer, by any other bidder or potential bidder; and |
(b) | any holder of any Second Lien Liabilities, any holder of High Yield Liabilities or
any holder of Senior Secured Liabilities that is considering making an offer in any Competitive Process is provided with the same information, including any due diligence reports, and access to management that is being provided to any other bidder at the same stage of the process. |
(a) | an undertaking substantially in the form set out in Schedule 2 (Form of Creditor Accession Undertaking); or |
(b) | a
Transfer Deed, a Transfer Agreement, an Increase Confirmation or an Additional Facility Accession Deed (in each case, as defined in the relevant Facilities Agreement) or any equivalent definition in a Facilities Agreement provided that it contains an accession to this Agreement which is substantially in the form set out in Schedule 2 (Form of Creditor Accession Undertaking), |
(d) | in the case of an acceding Debtor which is expressed to accede as an Intra‑Group Lender in the relevant Debtor/Security Grantor Accession Deed, that Debtor/Security Grantor Accession Deed. |
(a) | at any time prior to the Senior Secured Discharge Date, a conflict between: |
(i) | the interests of any Senior Secured Creditor; |
(ii) | the interests of any Second Lien Creditor; |
(iii) | the
interests of any High Yield Creditor; and |
(iv) | the interests of any Unsecured Creditor; |
(b) | at any time after the Senior Secured Discharge Date but prior to the Second Lien Discharge Date, a conflict between: |
(i) | the interests of any Second Lien Creditor; |
(ii) | the
interests of any High Yield Creditor; and |
(iii) | the interests of any Unsecured Creditor; and |
(c) | at any time after the Second Lien Discharge Date but prior to the High Yield Discharge Date, a conflict between: |
(i) | the interests of any High Yield Creditor; and |
(ii) | the
interests of any Unsecured Creditor. |
(a) | a
deed substantially in the form set out in Schedule 1 (Form of Debtor/Security Grantor Accession Deed); or |
(b) | (only in the case of a member of the Group or any Holding Company thereof which is acceding as a borrower or guarantor under the Senior Facilities Agreement) an accession agreement as referenced in the Senior Facilities Agreement in respect of such accession, provided that it contains an accession to this Agreement which is substantially in the form set out in Schedule 1 (Form of Debtor/Security Grantor Accession Deed), |
(a) | in relation to a Senior Lender, a Senior Lender which is a Defaulting Lender under, and as defined in, the Senior Facilities Agreement; |
(b) | in relation to a Pari Passu Creditor, a Pari Passu Creditor which is a Defaulting Lender under, and as defined in, a Pari Passu Debt Document; |
(c) | in
relation to a Second Lien Lender, a Second Lien Lender which is a Defaulting Lender under, and as defined in, a Second Lien Facilities Agreement; |
(d) | in relation to a High Yield Lender, a High Yield Lender which is a Defaulting Lender under, and as defined in, a High Yield Facilities Agreement; and |
(e) | in relation to an Unsecured Lender, an Unsecured Lender which is a Defaulting Lender under, and as defined in, the Unsecured Facilities Agreement. |
(a) | an Acceleration Event; or |
(b) | the
enforcement of any Transaction Security. |
(a) | being effected at the request of an Instructing Group in circumstances where the Transaction Security has become enforceable; |
(b) | being effected by enforcement of the Transaction
Security; or |
(c) | being effected, after the occurrence of a Distress Event, by a Debtor or Security Grantor to a person or persons which is not a Debtor, a Security Grantor or member of the Group. |
(a) | in relation to any Liabilities: |
(i) | the acceleration of any Liabilities or the making of any declaration that any Liabilities are prematurely due and payable (other than as a result
of it becoming unlawful for a Senior Lender, a Pari Passu Creditor, a Senior Secured Noteholder, a Second Lien Lender, a Second Lien Noteholder, a High Yield Lender, a High Yield Noteholder, an Unsecured Lender or an Unsecured Noteholder to perform its obligations under, or of any voluntary or mandatory prepayment or redemption arising under, the Debt Documents); |
(ii) | the making of any declaration that any Liabilities are payable on demand; |
(iii) | the making of a demand in relation to a Liability that is payable on demand (other than
a demand made by an Intra-Group Lender in relation to any Intra-Group Liabilities which are on demand Liabilities to the extent (A) that the demand is made in the ordinary course of dealings between the relevant Debtor and Intra-Group Lender and (B) that any resulting Payment would be a Permitted Intra-Group Payment); |
(iv) | the making of any demand against any Debtor or any member of the Group in relation to any Guarantee Liabilities of that Debtor
or member of the Group; |
(v) | the exercise of any right to require any Debtor or member of the Group to acquire any Liability (including exercising any put or call option against any Debtor or any member of the Group for the redemption or purchase of any Liability but excluding any such right which arises as a result of any debt buy-back permitted by the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents, the High Yield Finance Documents and the Unsecured Finance Documents and excluding any mandatory prepayments or mandatory offers arising as a result of a change of control or asset sale (howsoever described) as set out in the Senior Facilities Agreement, the Senior
Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents, the High Yield Finance Documents or the Unsecured Finance Documents); |
(vi) | the exercise of any right of set-off, account combination or payment netting against any Debtor, any member of the Group or any Security Grantor in respect of any Liabilities other than the exercise of any such right: |
(A) | as Close-Out Netting by a Hedge Counterparty or by a Hedging Ancillary Lender; |
(B) | as
Payment Netting by a Hedge Counterparty or by a Hedging Ancillary Lender; |
(C) | as Inter-Hedging Agreement Netting by a Hedge Counterparty; |
(D) | as Inter-Hedging Ancillary Document Netting by a Hedging Ancillary Lender; and |
(E) | which is otherwise expressly permitted under the Senior Facilities Agreement, the
Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents, the High Yield Finance Documents or the Unsecured Finance Documents to the extent that the exercise of that right gives effect to a Permitted Payment; and |
(vii) | the suing for, commencing or joining of any legal or arbitration proceedings against any Debtor, member of the Group or a Security Grantor to recover any Liabilities; |
(b) | the
premature termination or close-out of any hedging transaction under any Hedging Agreement; |
(c) | the taking of any steps to enforce or require the enforcement of any Transaction Security (including the crystallisation of any floating charge forming part of the Transaction Security); |
(d) | the entering into of any composition, compromise, assignment or similar arrangement with any Debtor, member of the Group or Security Grantor which owes any Liabilities, or has given any Security, guarantee or indemnity or other assurance against
loss in respect of the Liabilities but excluding: |
(i) | any action permitted under Clause 23 (Changes to the Parties); and |
(ii) | any such arrangement which arises as a result of any debt buy-back permitted the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents, the High Yield Finance Documents and the Unsecured Finance Documents; or |
(e) | the
petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, trustee in bankruptcy, administrator or similar officer) in relation to, the winding up, dissolution, administration or reorganisation of any Debtor, any member of the Group or any Security Grantor which owes any Liabilities, or has given any Security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities, or any of such Debtor’s, member of the Group’s or Security Grantor’s assets or any suspension of payments or moratorium of any indebtedness of any such Debtor, member of the Group or Security Grantor, or any analogous procedure or step in any jurisdiction, |
(i) | the
taking of any action falling within paragraphs (a)(vii) or (e) above which is necessary (but only to the extent necessary) to preserve the validity, existence or priority of claims in respect of Liabilities, including the registration of such claims before any court or governmental authority and the bringing, supporting or joining of proceedings to prevent any loss of the right to bring, support or join proceedings by reason of applicable limitation periods; or |
(ii) | a Primary Creditor bringing legal proceedings against any person solely for the purpose of: |
(A) | obtaining
injunctive relief (or any analogous remedy outside England and Wales) to restrain any actual or putative breach of any Debt Document to which it is party; |
(B) | obtaining specific performance (other than specific performance of an obligation to make a payment) with no claim for damages; or |
(C) | requesting judicial interpretation of any provision of any Debt Document to which it is party with no claim for damages; or |
(iii) | bringing
legal proceedings against any person in connection with any securities violation, securities or listing regulations or common law fraud or to restrain any actual or putative breach of the Debt Documents (other than any agreement evidencing the terms of Subordinated Liabilities or the Intra-Group Liabilities) or for specific performance with no claims for damages; or |
(iv) | allegations of material misstatements or omissions made in connection with the offering materials relating to the Senior Secured Notes Liabilities, the Second Lien Notes Liabilities, the High Yield Notes Liabilities or the Unsecured Notes Liabilities or in reports furnished to any of the Noteholders or Notes Trustees or any exchange on which the Senior Secured Notes, the Second Lien
Notes, the High Yield Notes or the Unsecured Notes are listed by a Debtor or a member of the Group pursuant to information and reporting requirements under any of the Notes Finance Documents (as applicable). |
(a) | all the rights and benefits in respect of the Hedging Liabilities owed by the Debtors and Security Grantors to each Hedge Counterparty; and |
(b) | all
the Hedge Counterparty Obligations owed by each Hedge Counterparty to the Debtors and Security Grantors, |
(a) | to
the extent entered into prior to the Effective Date, any master agreement together with any schedule and confirmation related thereto or any other agreement (including any long form confirmation) entered into between a Debtor and an Effective Date Hedge Counterparty to document any hedge agreement between a Debtor and an Effective Date Hedge Counterparty which was, prior to the Effective Date, subject to the Security Trust Agreement (as defined in the Supplemental Deed) and/or this Agreement (“Pre-Effective Date Hedging Document”); and |
(b) | to the extent entered into on or after the Effective Date, any master agreement together with any schedule and confirmation related thereto or any other agreement
(including any long form confirmation) or any confirmation in relation to a master agreement that comprises a Pre-Effective Date Hedging Document entered into or to be entered into between a Debtor and a Hedge Counterparty to document an Offsetting Swap (as such term is defined in Clause 4.15 (Offsetting Swaps)) or any other hedge agreement between a Debtor and a Hedge Counterparty, in each case, provided that such hedging is permitted under the terms of the Senior Finance Documents, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents, the High Yield Finance Documents and the Unsecured Finance Documents in place at the time such Hedging Agreement was entered into (or subsequently amended excluding any amendments required to comply with |
(a) | if
the hedging transaction has not been closed out, the amount that would be payable to (expressed as a positive number) or by (expressed as a negative number) the relevant Hedge Counterparty on the relevant date if: |
(i) | in the case of a Hedging Agreement which is based on an ISDA Master Agreement: |
(A) | that date was an Early Termination Date (as defined in the relevant ISDA Master Agreement); and |
(B) | the
relevant Debtor was the Defaulting Party (under and as defined in the relevant ISDA Master Agreement), or |
(ii) | in the case of a Hedging Agreement which is not based on an ISDA Master Agreement: |
(A) | that date was the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination |
(B) | the relevant Debtor was in a position which is similar in meaning and effect to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement); or |
(b) | if the hedging transaction has been closed out, the amount payable to (expressed as a positive number) or by (expressed as a negative number) the relevant Hedge Counterparty under the Hedging Agreement in respect of that termination or close-out (including any interest or default interest
accrued on that amount since the date of termination or close-out and any other amounts owing under the Hedging Agreement), |
(a) | any High Yield Agent in relation to a High Yield Facilities Agreement exercising any of its rights under the equivalent provisions of any High Yield Facilities Agreement which are similar in meaning and effect to a Senior Acceleration Event; |
(b) | any
High Yield Notes Trustee (or any of the High Yield Noteholders) exercising any rights to accelerate principal amounts outstanding under the High Yield Notes pursuant to any High Yield Notes Indenture; or |
(c) | any High Yield Notes Liabilities becoming due and payable by operation of any automatic acceleration provision contained in a High Yield Notes Finance Document. |
(a) | in
relation to a High Yield Lender, its aggregate (drawn and undrawn) High Yield Commitment; and |
(b) | in relation to a High Yield Noteholder, the principal amount of outstanding High Yield Notes held by that High Yield Noteholder. |
(a) | the High Yield Lenders and each High Yield Agent; and |
(b) | the
High Yield Notes Creditors. |
(a) | prior to the High Yield Loan Discharge Date, an “Event of Default” (or equivalent) under and as defined in the relevant High Yield Facilities Agreement; and |
(b) | prior
to the High Yield Notes Discharge Date, an “Event of Default” (or equivalent) under the relevant High Yield Notes Indenture. |
(a) | does not breach the terms of any Secured Debt Document or any other High Yield Finance Document; and |
(b) | is
designated as such by the Company by written notice to each Agent who is Party at such time. |
(a) | the
terms for such notes, securities or instruments (i) comply with the terms of the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents and this Agreement; and (ii) are not inconsistent in any material respect with the High Yield Major Terms; |
(b) | are designated as such by the Company by written notice to each Agent who is a Party at such time; and |
(c) | the entity
acting as trustee or representative in respect of such notes, securitites or instruments at any time has acceded to this Agreement as a High Yield Notes Trustee pursuant to Clause 23.15 (Accession of High Yield Notes Trustee). |
(a) | if such entity is a member of the Group: |
(i) | is a Senior Guarantor (if the Senior Discharge Date has not occurred); |
(ii) | is
a borrower or an issuer of Pari Passu Debt or a Pari Passu Debt Guarantor (if any Pari Passu Debt Documents have been entered into, and the Pari Passu Debt Discharge Date has not occurred); |
(iii) | is a Senior Secured Notes Issuer or a Senior Secured Notes Guarantor (if any Senior Secured Notes have been issued, and the Senior Secured Notes Discharge Date has not occurred); and |
(iv) | functions as a holding company only; |
(b) | has
acceded to this Agreement as a HY Borrower (both as a Debtor and, if required and to the extent not already a Party in such capacity, as an Intra-Group Lender or a Subordinated Creditor or Security Grantor); and |
(c) | if such entity has any subsidiaries, at least one such subsidiary is: |
(i) | a Senior Guarantor (if the Senior Discharge Date has not occurred); |
(ii) | a
borrower or an issuer of Pari Passu Debt or a Pari Passu Debt Guarantor (if any Pari Passu Debt Documents have been entered into, and the Pari Passu Debt Discharge Date has not occurred); and |
(iii) | a Senior Secured Notes Issuer or a Senior Secured Notes Guarantor (if any Senior Secured Notes have been issued, and the Senior Secured Notes Discharge Date has not occurred). |
(a) | if
such entity is a member of the Group: |
(i) | is a Senior Guarantor (if the Senior Discharge Date has not occurred); |
(ii) | is a borrower or an issuer of Pari Passu Debt or a Pari Passu Debt Guarantor (if any Pari Passu Debt Documents have been entered into, and the Pari Passu Debt Discharge Date has not occurred); |
(iii) | is
a Senior Secured Notes Issuer or a Senior Secured Notes Guarantor (if any Senior Secured Notes have been issued, and the Senior Secured Notes Discharge Date has not occurred); and |
(iv) | functions as a holding company only; |
(b) | has acceded to this Agreement as a HY Issuer (both as a Debtor and, if required and to the extent not already a Party in such capacity, as an Intra-Group Lender or a Subordinated Creditor or Security Grantor); and |
(c) | if
such entity has any subsidiaries, at least one such subsidiary is: |
(i) | a Senior Guarantor (if the Senior Discharge Date has not occurred); |
(ii) | an issuer of Pari Passu Debt or a Pari Passu Debt Guarantor (if any Pari Passu Debt Documents have been entered into, and the Pari Passu Debt Discharge Date has not occurred); and |
(iii) | a
Senior Secured Notes Issuer or a Senior Secured Notes Guarantor (if any Senior Secured Notes have been issued, and the Senior Secured Notes Discharge Date has not occurred). |
(a) | any resolution is passed or order (including, without limitation, an order for relief in any case under the US Bankruptcy Code) made for the winding up, dissolution, administration, examination, bankruptcy or reorganisation (whether pursuant to the US Bankruptcy Code or otherwise) of that Debtor, member of the Group or Security Grantor or a moratorium is declared in relation to any indebtedness
of that Debtor, member of the Group or Security Grantor; |
(b) | any composition, compromise, assignment or arrangement is made with its creditors generally; |
(c) | the appointment of any liquidator, receiver, trustee in bankruptcy, administrator, administrative receiver, compulsory manager or other similar officer in respect of that Debtor, member of the Group or Security Grantor or any of its assets; or |
(d) | any
analogous procedure or step is taken in any jurisdiction, |
(i) | can be demonstrated to the satisfaction of the Security Agent (acting reasonably), within 30 days of any such action or proceedings having commenced, to be frivolous, vexatious or an abuse of the process of the court or related to a claim to which such person has a good defence and which is being vigorously contested by such person; |
(ii) | does not relate
to the appointment of any of the officers referred to at paragraph (c) above and where the proceedings are stayed or discharged within 30 days from their commencement; |
(iii) | relates to a solvent liquidation or dissolution set out in clause 23.12 (Acquisitions and mergers), paragraph (b) of the definition of “Permitted |
(iv) | in connection with a reconstruction or amalgamation, is on terms approved by the Security Agent (acting on the instructions of the Instructing Group). |
(a) | prior to the Senior Secured Discharge Date, the Majority Senior Secured Creditors; |
(b) | on
or after the Senior Secured Discharge Date but before the Second Lien Discharge Date, the Majority Second Lien Creditors; and |
(c) | on or after the later of the Senior Secured Discharge Date and the Second Lien Discharge Date but before the High Yield Discharge Date, the Majority High Yield Creditors (acting through the relevant High Yield Representative(s)). |
(a) | each Effective Date Intra-Group Lender; and |
(b) | each other member of the Group which has made a loan available to, granted credit to or made any other financial arrangement having similar effect with any Debtor and which becomes, a party as an Intra-Group Lender in accordance with the terms of Clause 23 (Changes to the Parties). |
(a) | the principle that equitable
remedies are remedies which may be granted or refused at the discretion of the court, the principle of reasonableness and fairness, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, court protection, examinership, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors; |
(b) | the time barring of claims under applicable limitation laws, the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void and defences of set-off or counterclaim; and |
(c) | any
other general principles which are set out as qualifications or reservations as to matters of law in any legal opinion delivered under any Secured Debt Document including (whether or not set out in such legal opinion) the qualification that security purporting to create fixed charges may create floating charges. |
(a) | any refinancing, novation, deferral or extension; |
(b) | any
claim for breach of representation, warranty or undertaking or on an event of default or under any indemnity given under or in connection with any document or agreement evidencing or constituting any other liability or obligation falling within this definition; |
(c) | any claim for damages or restitution; and |
(d) | any claim as a result of any recovery by any Debtor or Security Grantor of a Payment on the grounds of preference or otherwise, |
(a) | purchases by way of assignment or transfer; |
(b) | enters into any sub-participation in respect of; or |
(c) | enters
into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of, |
(a) | in
respect of the Senior Secured Notes, the Senior Secured Notes Finance Documents; |
(b) | in respect of the Second Lien Notes, the Second Lien Notes Finance Documents; |
(c) | in respect of the High Yield Notes, the High Yield Notes Finance Documents; and |
(d) | in respect of the Unsecured Notes, the Unsecured Notes
Finance Documents. |
(a) | in respect of the Senior Secured Notes, any Senior Secured Notes Indenture; |
(b) | in respect of the Second Lien Notes, any Second Lien Notes Indenture; |
(c) | in
respect of the High Yield Notes, any High Yield Notes Indenture; and |
(d) | in respect of the Unsecured Notes, any Unsecured Notes Indenture. |
(a) | in respect of the Senior Secured Notes, each Senior Secured Notes Issuer; |
(b) | in
respect of the Second Lien Notes, each Second Lien Notes Issuer; |
(c) | in respect of the High Yield Notes, each HY Issuer; and |
(d) | in respect of the Unsecured Notes, each Unsecured Issuer. |
(a) | in
respect of the Senior Secured Notes, each Senior Secured Notes Trustee; |
(b) | in respect of the Second Lien Notes, each Second Lien Notes Trustee; |
(c) | in respect of the High Yield Notes, each High Yield Notes Trustee; and |
(d) | in respect of the Unsecured Notes, each Unsecured Notes Trustee. |
(a) | which are permitted, under the terms of the Senior Secured Notes Finance Documents, any other Pari Passu Debt Documents, the Senior Finance Documents and the Second Lien Finance Documents, to share in the Transaction Security with the rights and obligations of Pari Passu Creditors as provided for in this Agreement; |
(b) | which
are designated as such by the Company by written notice to each Agent who is a Party at such time; and |
(c) | in respect of which the Pari Passu Creditors (or an agent or a trustee on their behalf) have acceded to this Agreement in accordance with Clause 23.6 (New Pari Passu Creditors and Pari Passu Debt Representatives), |
(a) | the
Pari Passu Debt Representative in relation to any Pari Passu Debt (or any of the other Pari Passu Creditors) exercising any rights to accelerate amounts outstanding under the Pari Passu Debt pursuant to any Pari Passu Debt Documents such that such amounts become immediately due and payable; or |
(b) | any Pari Passu Debt becoming due and payable by operation of any automatic acceleration provisions in any Pari Passu Debt Document. |
(a) | any amounts payable to a Pari Passu Debt Representative personally by way of indemnity and/or remuneration pursuant to a Pari Passu Debt Document (including guarantees of such amounts contained therein) or any other document entered into in connection with the incurrence of Pari Passu Debt; |
(b) | compensation for and the fees and expenses of the collection by any Pari Passu Debt Representative of
any amount payable to such Pari Passu Debt Representative for the benefit of the other Pari Passu Creditors; |
(c) | the costs of any actual or attempted Enforcement Action and any action permitted under paragraph (i) of the exception to the definition of Enforcement Action (in each case, including the fees and expenses of the Pari Passu Debt Representative’s agents and counsel); and |
(d) | amounts to be payable to any paying agent, registrar or any agent, custodian or other person appointed in accordance with the Pari Passu Debt Documents
by any Pari Passu Debt Representative in relation to the Pari Passu Debt and any VAT payable on such amount, |
(a) | in respect of a Hedging Agreement or a Hedging Ancillary Document based on an ISDA Master Agreement, netting under section 2(c) of the relevant ISDA Master Agreement, as amended by the relevant schedule; and |
(b) | in
respect of a Hedging Agreement or a Hedging Ancillary Document not based on an ISDA Master Agreement, netting pursuant to any provision of that Hedging Agreement or that Hedging Ancillary Document which has a similar effect to the provision referenced in paragraph (a) above. |
(a) | the
Senior Secured Creditors; |
(b) | the Second Lien Creditors; |
(c) | the High Yield Creditors; and |
(d) | the Unsecured Creditors. |
(a) | in
the case of a Creditor: |
(i) | the Arranger Liabilities owed to an Arranger ranking (in accordance with the terms of this Agreement) pari passu with or in priority to that Creditor; |
(ii) | the Liabilities owed to Creditors ranking (in accordance with the terms of this Agreement) pari passu with or in priority to that Creditor together with all Agent Liabilities owed to the Agent of those Creditors; and |
(iii) | all
present and future liabilities and obligations, actual and contingent, of the Debtors and Security Grantors to the Security Agent; and |
(b) | in the case of a Debtor and Security Grantor, the Liabilities owed to the Creditors together with the Agent Liabilities owed to the Agent of those Creditors, the Arranger Liabilities and all present and future liabilities and obligations, actual and contingent, of the Debtors and Security Grantors to the Security Agent. |
(a) | the
Second Lien Agent in relation to a Second Lien Facilities Agreement exercising any of its rights under the equivalent provisions of the Second Lien Facilities Agreement which are similar in meaning and effect to a Senior Acceleration Event; |
(b) | any Second Lien Notes Trustee (or any of the Second Lien Noteholders) exercising any of their rights to accelerate amounts outstanding under the Second Lien Notes pursuant to any Second Lien Notes Indenture; or |
(c) | any
Second Lien Liabilities becoming due and payable by operation of any automatic acceleration provisions in any Second Lien Finance Documents. |
(a) | is a member of the Group: |
(b) | is a Senior Guarantor (if the Senior Discharge Date has not occurred); |
(c) | is
an issuer or borrower of Pari Passu Debt or a Pari Passu Debt Guarantor (if any Pari Passu Debt Documents have been entered into, and the Pari Passu Debt Discharge Date has not occurred); |
(d) | is a Senior Secured Notes Issuer or a Senior Secured Notes Guarantor (if any Senior Secured Notes have been issued, and the Senior Secured Notes Discharge Date has not occurred); and |
(e) | has acceded to this Agreement as a Second Lien Borrower (both as a Debtor and, if required and to the extent not already a Party in such capacity, as an
Intra-Group Lender or a Subordinated Creditor or Security Grantor). |
(a) | in relation to a Second
Lien Lender, its aggregate (drawn and undrawn) Second Lien Commitment; and |
(b) | in relation to a Second Lien Noteholder, the principal amount of outstanding Second Lien Notes held by that Second Lien Noteholder. |
(a) | the Second Lien Lenders and each Second Lien Agent; and |
(b) | the
Second Lien Notes Creditors. |
(a) | prior to the Second Lien Loan Discharge Date, a “Default” (or equivalent) under and as defined in any Second Lien Facilities Agreement; and |
(b) | prior
to the Second Lien Notes Discharge Date, a “Default” (or equivalent) under and as defined in any Second Lien Notes Indenture. |
(a) | prior
to the Second Lien Loan Discharge Date, an “Event of Default” (or equivalent) under and as defined in the relevant Second Lien Facilities Agreement; and |
(b) | prior to the Second Lien Notes Discharge Date, an “Event of Default” (or equivalent) under and as defined in the relevant Second Lien Notes Indenture. |
(a) | does not breach the terms of the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, any other Second Lien Finance Documents, any High Yield Finance Documents, any Unsecured Finance Documents and this Agreement; |
(b) | is not inconsistent in any material respect
with the Second Lien Major Terms; and |
(c) | is designated as such by the Company by written notice to each Agent who is a Party at such time. |
(a) | are issued in accordance with Clause 8.1 (Entry into Second Lien Finance Documents); |
(b) | are subject
to terms that (i) comply with the terms of the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, any other Second Lien Finance Documents, any High Yield Finance Documents, any Unsecured Finance Documents and this Agreement and (ii) are not inconsistent in any material respect with the Second Lien Major Terms; and |
(c) | are designated as such by the Company by written notice to each Agent who is a Party at such time, |
(a) | is a member of the Group; |
(b) | is a Senior Guarantor
(if the Senior Discharge Date has not occurred); |
(c) | is an issuer or borrower of Pari Passu Debt or a Pari Passu Debt Guarantor (if any Pari Passu Debt Documents have been entered into, and the Pari Passu Debt Discharge Date has not occurred); |
(d) | is a Senior Secured Notes Issuer or a Senior Secured Notes Guarantor (if any Senior Secured Notes have been issued, and the Senior Secured Notes Discharge Date has not occurred); and |
(e) | has
acceded to this Agreement as a Second Lien Notes Issuer (both as a Debtor and, if required and to the extent not already a Party in such capacity, as an Intra-Group Lender or a Subordinated Creditor or Security Grantor). |
(a) | in
the case of the Pre-Effective Date Security Documents (other than the Pre-Effective Date US Security Document), has the meaning given to that term in that Pre-Effective Date Security Document; |
(b) | in the case of the Pre-Effective Date US Security Document, has the meaning given to the term “Designated Secured Obligations” in the Pre-Effective Date US Security Document; or |
(c) | in all other cases, means all the Liabilities and all other present and future obligations at any time due, owing or incurred by any member of the
Group and |
(i) | under no circumstances shall the Secured Obligations include any Excluded Swap Obligation; and |
(ii) | no
Transaction Security created by any Debtor, any member of the Group or any Security Grantor which is organised or incorporated in a jurisdiction other than the United States of America, any state thereof or the District of Columbia shall secure any Liabilities or other obligations of any US Group Member. |
(a) | each of the Transaction Security Documents (including, for the avoidance of doubt, the Pre-Effective Date Security Documents); |
(b) | any
other document entered into at any time by any of the Debtors or Security Grantors creating any guarantee, indemnity, Security or other assurance against financial loss in favour of any of the Secured Parties as security for any of the Secured Obligations; and |
(c) | any Security granted under any covenant for further assurance in any of the documents set out in paragraphs (a) to (b) above. |
(a) | the Transaction Security expressed to be granted in favour of the Security Agent as agent or trustee for the Secured Parties
(or pursuant to any joint and several creditorship or parallel debt provisions set out in Clause 21 (The Security Agent)) for the benefit of any of the Secured Parties and all proceeds of that Transaction Security; |
(b) | all present and future liabilities and obligations at any time of any Debtor to the Security Agent under Clause 21.3 (Parallel Debt (Covenant to pay the Security Agent)); |
(c) | all
obligations expressed to be undertaken by a Debtor or a Security Grantor to pay amounts in respect of the Liabilities to the Security Agent as agent or trustee for the Secured Parties (or pursuant to any joint and several creditorship or parallel debt provisions set out in Clause 21 (The Security Agent)) and secured by the Transaction Security together with all representations and warranties expressed to be given by a Debtor or a Security Grantor in favour of the Security Agent as agent or trustee for (or otherwise for the benefit of) the Secured Parties; |
(d) | the Security Agent’s interest in any trust fund created pursuant to Clause 14 (Turnover of Receipts);
and |
(e) | any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Debt Documents to hold as trustee on trust or as agent for (or otherwise for the benefit of) the Secured Parties. |
(a) | the Senior Agent exercising any of its rights under paragraphs (a), (b) (to the extent such exercise of rights
is to demand payment of an amount previously placed on demand under such paragraph (b)) or (c) of clause 26.19 (Acceleration) |
(b) | any
Senior Lender Liabilities becoming due and payable by operation of clause 26.21 (Automatic Acceleration) of the Senior Facilities Agreement. |
(a) | its
aggregate (drawn and undrawn) Senior Commitments, if any; |
(b) | in respect of any hedging transaction of that Senior Creditor under any Hedging Agreement that has, as of the date the calculation is made, been terminated or closed out in accordance with the terms of this Agreement, the amount, if any, payable to it under any Hedging Agreement in respect of that termination or close-out as of the date of termination or close‑out (and before taking into account any interest accrued on that amount since the date of termination or close-out) to the extent that amount is unpaid (that amount to be certified by the relevant Senior Creditor and as calculated in accordance with the relevant Hedging Agreement); and |
(c) | in
respect of any hedging transaction of that Senior Creditor under any Hedging Agreement that has, as of the date the calculation is made, not been terminated or closed out: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be an Early Termination
Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined
in the same ISDA Master Agreement), |
(a) | does not breach the terms of the other Senior Facilities Agreement(s), the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents, the High Yield Finance Documents, the Unsecured Finance Documents and this Agreement; and |
(b) | is
designated as such by the Company by written notice to each Agent who is a Party at such time. |
(a) | in relation to a Senior Creditor, its Senior Credit Participation; |
(b) | in relation to a Pari Passu Creditor, its aggregate (drawn and undrawn) commitments or the principal amount outstanding (as applicable) under the relevant Pari Passu Debt Document, if any; and |
(c) | in
relation to a Senior Secured Noteholder, the principal amount of outstanding Senior Secured Notes held by that Senior Secured Noteholder. |
(a) | (prior
to the Senior Discharge Date) has the meaning given to the term “Security Documents” in the Senior Facilities Agreement; and |
(b) | (following the Senior Discharge Date) means any Security Document entered into at any time by any of the Debtors or Security Grantors as security for any of the Senior Secured Notes Liabilities and the Pari Passu Debt Liabilities. |
(a) | are
issued in accordance with, and are subject to terms that comply with, the terms of the Senior Facilities Agreement, any other Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents, the High Yield Finance Documents, the Unsecured Finance Documents and this Agreement; and |
(b) | are designated as such by the Company by written notice to each Agent who is a Party at such time, |
(a) | any Senior Secured Notes Trustee (or any of the Senior Secured Noteholders) exercising any rights to accelerate amounts outstanding under the Senior Secured Notes pursuant to any Senior Secured Notes Indenture; or |
(b) | any
Senior Secured Notes Liabilities becoming due and payable by operation of any automatic acceleration provisions in any Senior Secured Notes Finance Document. |
(a) | any Senior Payment Default; |
(b) | any Pari Passu Debt Payment Default;
or |
(c) | any Senior Secured Notes Event of Default arising by reason of any non-payment under a Senior Secured Notes Finance Document other than in respect of an amount (a) not constituting principal, interest or fees and (b) not exceeding £250,000 (or its equivalent in other currencies). |
(a) | the account is with the Security Agent or relevant Issuing Bank or Ancillary Facility Lender for which that cash cover is to be provided; |
(b) | until no amount is or may be outstanding under that Documentary
Credit or Ancillary Facility, withdrawals from the account may only be made to pay the relevant Senior Lender or Pari Passu Creditor (as applicable) amounts due and payable to it in respect of that Documentary Credit or Ancillary Facility; and |
(c) | if requested by the relevant Issuing Bank or Ancillary Facility Lender, the Debtor has executed a security document over that account creating a first ranking Security over that account. |
(a) | any Unsecured Agent in relation to an Unsecured Facilities Agreement exercising any of its rights under the equivalent provisions of the Unsecured Facilities Agreement which are similar in meaning and effect to a Senior Acceleration Event; |
(b) | any
Unsecured Notes Trustee (or any of the Unsecured Noteholders) exercising any rights to accelerate principal amounts outstanding under the Unsecured Notes pursuant to any Unsecured Notes Indenture; or |
(c) | any Unsecured Liabilities becoming due and payable by operation of any automatic acceleration provision contained in an Unsecured Finance Document. |
(a) | in relation to an Unsecured Lender, its aggregate (drawn and undrawn) Unsecured Commitment; and |
(b) | in relation to an Unsecured Noteholder, the principal amount of outstanding
Unsecured Notes held by that Unsecured Noteholder. |
(a) | the Unsecured Lenders and each Unsecured Agent; and |
(b) | the Unsecured Notes Creditors. |
(a) | prior to the Unsecured Loan Discharge Date, an “Event of Default” (or equivalent) under and as defined in any Unsecured Facilities Agreement; and |
(b) | prior to the Unsecured Notes Discharge
Date, an “Event of Default” (or equivalent) under and as defined in any relevant Unsecured Notes Indenture. |
(a) | does not breach the terms of any Secured Debt Document or any other Unsecured Finance Document; and |
(b) | which
is designated as such by the Company by written notice to each Agent who is a Party at such time. |
(a) | the
terms for such notes, securities or instruments (i) comply with the terms of the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance Documents, the |
(b) | are designated as such by the
Company by written notice to each Agent who is a Party at such time; and |
(c) | the entity acting as trustee or representative in respect of such notes or instruments at any time has acceded to this Agreement as an Unsecured Notes Trustee pursuant to Clause 23.14 (Accession of Unsecured Notes Trustee). |
(a) | in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
(b) | in
relation to any other applicable Bail-In Legislation: |
(i) | any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract
or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and |
(ii) | any similar or analogous powers under that Bail-In Legislation; and |
(c) | in relation to any UK Bail-In Legislation: |
(i) | any
powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other |
(ii) | any similar or analogous powers under that UK Bail-In Legislation. |
1.2 | Construction |
(a) | Unless
a contrary indication appears, a reference in this Agreement to: |
(i) | any “Agent”, “Ancillary Facility Lender”, “Arranger”, “Creditor”, “Debtor”, “Hedge Counterparty”, “High Yield Guarantor”, “HY Issuer”, “High Yield Notes Trustee”, “High Yield Noteholder”, “Unsecured Guarantor”, “Unsecured Issuer”, “Unsecured Notes Trustee”, “Unsecured Noteholder”, “Intra-Group Lender”, “Issuing Bank”, “Pari Passu Creditor”, “Pari Passu Debt Guarantor”, “Pari Passu Debt Representative”, “Party”, “Primary Creditor”, “Second Lien Agent”, “Second Lien Arranger”, “Second Lien Borrower”, “Second Lien Creditor”,
“Second Lien Guarantor”, “Second Lien Lender”, “Second Lien Notes Issuer”, “Second Lien Notes Trustee”, “Second Lien Noteholder”, “High Yield Agent”, “HY Borrower”, “High Yield Creditor”, “High Yield Lender”, “Unsecured Agent”, “Unsecured Borrower”, “Unsecured Creditor”, “Unsecured Lender”, “Security Agent”, “Security Grantor”, “Senior Agent”, “Senior Arranger”, “Senior Borrower”, “Senior Creditor”, “Senior Guarantor”, “Senior Lender”, “Senior Secured Notes Guarantor”, “Senior Secured Notes Issuer”, “Senior Secured Notes Trustee”, “Senior Secured Noteholder”, “Subordinated Creditor”, “Permitted Affiliate Parent” or the “Company” shall be construed to be a reference to it in its capacity as such and not in any other capacity; |
(ii) | any
“Agent”, “Ancillary Facility Lender”, “Arranger”, “Creditor”, “Debtor”, “Hedge Counterparty”, “High Yield Guarantor”, “HY Issuer”, “High Yield Notes Trustee”, “High Yield Noteholder”, “Unsecured Borrower”, “Unsecured Creditor”, “Unsecured Guarantor”, “Unsecured Issuer”, “Unsecured Notes Trustee”, “Unsecured Noteholder”, “Intra-Group Lender”, “Issuing Bank”, “Pari Passu Creditor”, “Pari Passu Debt Guarantor”, “Pari Passu Debt Representative”, “Party”, “Primary |
(iii) | “assets” includes present and future properties, revenues and rights of every description; |
(iv) | a “Debt Document” or any other agreement or instrument is (other than a reference to a “Debt Document” or any other agreement or
instrument in “original form”) a reference to that Debt Document, or other agreement or instrument, as amended, novated, supplemented, extended, restated or replaced from time to time (however fundamentally) and includes any increase in, addition to or extension of or other change to any facility made available under any such agreement or instrument (in each case to the extent permitted by this Agreement); |
(v) | “enforcing” (or any derivation) the Transaction Security shall include the appointment of an administrator of a Debtor or a Security Grantor by the Security Agent; |
(vi) | a
“group of Creditors” includes all the Creditors and a “group of Primary Creditors” includes all the Primary Creditors; |
(vii) | “indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; |
(viii) | the “original form” of a “Debt
Document” or any other agreement or instrument is a reference to that Debt Document, agreement or instrument as originally entered into (save as otherwise provided in this Agreement); |
(ix) | a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint |
(x) | a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law being one with which it is the practice of the relevant person to comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation; and |
(xi) | a provision of law is a reference
to that provision as amended or re-enacted. |
(b) | Section, Clause and Schedule headings are for ease of reference only. |
(c) | A Default or an Event of Default is “continuing” if it has not been remedied or waived. |
(d) | The determination that a High Yield Payment Stop Notice
or Second Lien Payment Stop Notice is “outstanding” is to be made by reference to the provisions of Clause 9.4 (Issue of High Yield Payment Stop Notice), or as the case may be, Clause 8.4 (Second Lien Payment Default and Issue of Second Lien Payment Stop Notice). |
(e) | On and after the completion of a refinancing, an amendment or an amendment and restatement of a “Senior Facilities Agreement” (as referred to in the definition of Senior Facilities Agreement), a “Second Lien Facilities Agreement” (as referred to in the
definition of Second Lien Facilities Agreement) or an “Unsecured Facilities Agreement” (as referred to in the definition of Unsecured Facilities Agreement) any reference in this Agreement to any definition, clause, paragraph, provision or other term of the Senior Facilities Agreement, a Second Lien Facilities Agreement or an Unsecured Facilities Agreement (as applicable) (excluding, for the avoidance of doubt, any references to the Original Senior Facilities Agreement) shall be read and construed as a reference to any equivalent definition, clause, paragraph, provision or other term in such refinanced, amended or amended and restated Senior Facilities Agreement, Second Lien Facilities Agreement or Unsecured Facilities Agreement (as applicable) which is similar in meaning and effect. |
(f) | After
the Senior Lender Discharge Date, if no Senior Facilities Agreement is in force, any reference in this Agreement to a “Senior Facilities Agreement” (or to any equivalent definition, clause, paragraph, provision or other term of the Senior Facilities Agreement) shall (if applicable) be read and construed as a reference to any Pari Passu Debt Document (or to any definition, clause, |
(g) | Any reference in this Agreement to any definition in any Pari Passu Debt Document shall be read and construed as a reference to any equivalent definition contained in any Pari Passu Debt Document which is similar in meaning and effect. |
(h) | Creditors may only benefit from Group Recoveries to the extent that the Liabilities of such Creditors have the benefit of the guarantees or security under which such Group Recoveries are received and provided that, in all
cases, the rights of such Secured Parties shall in any event be subject to the priorities set out in Clause 18 (Application of Proceeds) and to Clause 19 (Equalisation) and provided further, however, that this shall not prevent: |
(i) | the Senior Secured Notes Trustee from claiming and being paid the Senior Secured Notes Trustee Amounts, the Second Lien Notes Trustee from claiming and being paid the Second Lien Notes Trustee Amounts, the High Yield Notes Trustee from claiming and being paid the High Yield Notes Trustee Amounts
or the Unsecured Notes Trustee from claiming and being paid the Unsecured Notes Trustee Amounts; |
(ii) | the Senior Agent from claiming and being paid the Senior Agent Liabilities; |
(iii) | the Pari Passu Debt Representative from claiming and being paid the Pari Passu Debt Representative Amounts; |
(iv) | a Second Lien Agent
from claiming and being paid the Second Lien Agent Liabilities; |
(v) | a High Yield Agent from claiming and being paid the High Yield Agent Liabilities; |
(vi) | an Unsecured Agent from claiming and being paid the Unsecured Agent Liabilities; |
(vii) | a Senior Secured Creditor or Second Lien Finance Party benefiting from
such Group Recoveries where it was not legally possible for the Senior Secured Creditor or Second Lien Finance Party to obtain the relevant guarantees or security; or |
(viii) | to the extent legally permitted, a Senior Secured Creditor benefitting from Group Recoveries resulting from the realization or enforcement of any |
(i) | In determining whether or not any Liabilities have been fully and finally discharged, the relevant Agent will disregard contingent liabilities (such as the risk of claw back flowing from a preference) except to the extent the relevant Agent reasonably believes (after taking such legal advice as it considers appropriate) that there is a reasonable likelihood that those liabilities will become actual liabilities. |
(j) | Where
any Consent is required under this Agreement from: |
(i) | a Senior Lender or Senior Finance Party where such Consent is required after the Senior Lender Discharge Date; |
(ii) | a Hedge Counterparty where such Consent is required after the Senior Discharge Date; |
(iii) | a Pari Passu Creditor where such Consent is required
after the Pari Passu Debt Discharge Date; |
(iv) | a Senior Secured Notes Creditor where such Consent is required after the Senior Secured Notes Discharge Date; |
(v) | a Second Lien Lender or Second Lien Loan Finance Party where such Consent is required after the Second Lien Loan Discharge Date; |
(vi) | a Second Lien Notes
Creditor where such Consent is required after the Second Lien Notes Discharge Date; |
(vii) | a High Yield Lender or High Yield Loan Finance Party where such consent is required after the High Yield Loan Discharge Date; |
(viii) | a High Yield Noteholder or High Yield Notes Trustee where such consent is required after the High Yield Notes Discharge Date; |
(ix) | an
Unsecured Lender or Unsecured Loan Finance Party where such consent is required after the Unsecured Loan Discharge Date; or |
(x) | an Unsecured Noteholder or Unsecured Notes Trustee where such consent is required after the Unsecured Notes Discharge Date, |
(k) | References
to a Pari Passu Debt Representative acting on behalf of the relevant Pari Passu Creditors shall be to such Pari Passu Debt Representative acting on behalf of the Pari Passu Creditors for which it has been appointed as agent or trustee. |
(l) | References to the Senior Secured Notes Trustee acting on behalf of the Senior Secured Noteholders means such Senior Secured Notes Trustee acting on behalf of the Senior Secured Noteholders which it represents or, if applicable, with the Consent of the requisite number of Senior Secured Noteholders required under and in accordance with the applicable Senior Secured Notes Indenture (provided that if the relevant Senior Secured
Notes Indenture does not specify a voting threshold for a particular matter, the threshold will be a simple majority of the outstanding principal amount under the Senior Secured Notes Indenture). A Senior Secured Notes Trustee will be entitled to seek instructions from the Senior Secured Noteholders which it represents to the extent required by the applicable Senior Secured Notes Indenture as to any action to be taken by it under this Agreement. |
(m) | References to the Second Lien Notes
Trustee acting on behalf of the Second Lien Noteholders means such Second Lien Notes Trustee acting on behalf of the Second Lien Noteholders which it represents or, if applicable, with the Consent of the requisite number of Second Lien Noteholders required under and in accordance with the applicable Second Lien Notes Indenture (provided that if the relevant Second Lien Notes Indenture does not specify a voting threshold for a particular matter, the threshold will be a simple majority of the outstanding principal amount under the Second Lien Notes Indenture). A Second Lien Notes Trustee will be entitled to seek instructions from the Second Lien Noteholders which it represents to the extent required by the
applicable Second Lien Notes Indenture as to any action to be taken by it under this Agreement. |
(n) | References to the High Yield Notes Trustee acting on behalf of the High Yield Noteholders means such High Yield Notes Trustee acting on behalf of the High Yield Noteholders which it represents or, if applicable, with the Consent of the requisite number of High Yield Noteholders required under and in accordance with the applicable High Yield Notes Indenture (provided that if the relevant High Yield Notes Indenture
does not specify a voting threshold for a particular matter, the threshold will be a simple majority of the outstanding principal amount under the High Yield Notes Indenture). A High Yield Notes Trustee will be entitled to seek instructions from the High Yield Noteholders which it represents to the extent required by the applicable High Yield Notes Indenture as to any action to be taken by it under this Agreement. |
(o) | References
to the Unsecured Notes Trustee acting on behalf of the Unsecured Noteholders means such Unsecured Notes Trustee acting on behalf of the Unsecured Noteholders which it represents or, if applicable, with the Consent of the requisite number of Unsecured Noteholders required under and in accordance with the applicable Unsecured Notes Indenture. An Unsecured Notes Trustee will be entitled to seek instructions from the Unsecured Noteholders which it represents to the extent required by the applicable Unsecured Notes Indenture as to any action to be taken by it under this Agreement. |
(p) | Any
Consent to be given under this Agreement shall mean such Consent is to be given in writing, which for the purposes of this Agreement will be deemed to include any instructions, waivers or Consents provided through any applicable clearance system in accordance with the terms of the relevant Debt Document. |
(q) | Until the relevant proceeds are released from such escrow, the provisions of this Agreement shall not apply to or create any restriction in respect of any escrow arrangement pursuant to which the proceeds of any Unsecured Notes, High Yield Notes, Second Lien Notes and/or Senior Secured Notes are subject and this Agreement shall not govern the rights and obligations of the Unsecured Noteholders, High Yield Noteholders, Second Lien Noteholders or,
as the case may be, Senior Secured Noteholders concerned until such proceeds are released from such escrow arrangement in accordance with the terms thereof. |
(r) | References in this Agreement to Senior Liabilities shall exclude any Liabilities which are incurred by a Borrower (or any other Debtor) under or in respect of a facilities agreement on a second lien, high yield or unsecured basis, or which otherwise do not rank pari passu with the Senior Liabilities under the Original Senior Facilities Agreement as at the Effective Date in right of payment and security (the “Excluded Liabilities”). If at any time there are Excluded Liabilities outstanding under or in respect of a facilities agreement: |
(i) | any
term in this Agreement or any other Debt Document which is defined by reference to the Senior Facilities Agreement or the Senior Liabilities shall be construed so as to exclude the Excluded Liabilities; and |
(ii) | such Excluded Liabilities shall be treated (as applicable and to the extent that the necessary designations and accessions have been completed in accordance with the terms of this Agreement) as Second Lien Liabilities incurred under a Second Lien Facilities Agreement, High Yield Liabilities incurred under a High Yield Facilities Agreement or Unsecured Liabilities incurred under an Unsecured Facilities Agreement, and any term in this Agreement or any other Debt Document which is defined by reference |
(s) | An Acceleration Event is “continuing” if it has not been revoked or otherwise ceases to be continuing in accordance with the terms of the relevant Debt Document. |
(t) | If the terms of any Debt Document (other than this Agreement): |
(i) | require
the relevant Creditors to provide approval (or deem approval to have been provided) for a particular matter, step or action (for the avoidance of doubt, excluding any such terms which expressly entitle the relevant Creditors to withhold their approval for that matter, step or action) and such approval has been given pursuant to the terms of that Debt Document; or |
(ii) | do not seek to regulate a particular matter, step or action (which shall be the case if the relevant matter, step or action is not the subject of an express requirement or restriction in that Debt Document), |
(u) | In
determining whether any indebtedness or other amount (including, without limitation, any Second Lien Finance Documents) is prohibited by the terms of any Debt Document or to the extent any amendment or waiver is sought for or to permit any step or other action, the terms of any Debt Document which: |
(i) | relate to any Liabilities which are to be refinanced or otherwise replaced with such indebtedness or other amount or that will be refinanced or otherwise replaced following such step or action for which such amendment or waiver is sought; or |
(ii) | will
not exist or will cease to be in effect on the date on which such indebtedness or other amount is incurred by a member of the Group or following the taking effect of such amendment or waiver, |
(v) | Other than for the purposes of paragraph 1.2(w) below, references to any matter being “permitted” under one or more of the Debt Documents shall include references to such matters not being prohibited or otherwise approved under those Debt Documents. |
(w) | To
the extent any step or action is expressly permitted under this Agreement (or expressly permitted subject to the consent of specified Parties under this Agreement), the Parties hereto agree that such step or action will be permitted under the other Debt Documents (or permitted thereunder subject to the consent of such specified Parties) and if there is any conflict between the terms of, or the requirement for any conditions in, this Agreement and any other Debt Document, the terms of, or the requirement for any conditions in, this Agreement will prevail (save to the extent that to do so would result in or have the effect of any member of the Group contravening any applicable law or regulation, or present a material risk of liability for any member of the Group and/or its directors or officers, or give rise to a material risk of breach of fiduciary or statutory duties), in each case notwithstanding any restriction or prohibition to the contrary, any provision expressed
or purported to override any provision of this Agreement or the requirement to fulfil any additional conditions, in each case, in any other Debt Document. |
(x) | References to any Creditors (or any class, group or percentage of any Creditors (including, for the avoidance of doubt, unanimity)) giving any Consent under this Agreement means (in each case) acting through the applicable Agent, if any, or, as applicable, the Security Agent. |
(y) | “€” and “euro”
denote the lawful currency of each Participating Member State, “£” and “Sterling” denote the lawful currency of the United Kingdom and “US$”, “$” and “Dollars” denote the lawful currency of the United States. |
(z) | Where paragraph or clause numbers have changed in this Agreement as a result of the amendments to this Agreement implemented from time to time, and such paragraph and clause numbers are referred to in any other Debt Document in force at the time of such amendments, such paragraph or clause numbers shall be read and
construed in this Agreement, for the purposes of the relevant Debt Document only, so that the relevant equivalent provision in this Agreement is referred to in each such Debt Document. |
(aa) | A Party providing “cash cover” for a Documentary Credit means it paying an amount in the currency of the Documentary Credit to an interest-bearing account in the name of that Party and the following conditions being met: |
(i) | the account is with the relevant Issuing Bank; |
(ii) | until
no amount is or may be outstanding under that Documentary Credit, withdrawals from the account may only be made to pay the relevant Issuing Bank amounts due and payable to it under the Debt Documents in respect of that Documentary Credit; and |
(iii) | if requested by the relevant Issuing Bank, the provider of the cash cover has executed a security document over that account, in form and substance satisfactory to such Issuing Bank with which that account
is held, creating a first ranking security interest over that account. |
(bb) | Notwithstanding anything to the contrary in this Agreement, it is expressly acknowledged by each Party that any Hedging Liability that constitutes an Excluded Swap Obligation shall not be (and shall not be required to be) guaranteed by any Non-ECP Debtor. |
(cc) | The right or requirement of any Party to take or not take any action on or following the occurrence of an Insolvency Event shall cease to apply if the relevant Insolvency Event is no longer continuing
(unless an Acceleration Event has occurred and is continuing and without prejudice to any action taken or not taken in accordance with the terms of this Agreement while that Insolvency Event is continuing). |
(dd) | Notwithstanding anything to the contrary, where any provision of this Agreement grants any rights (“Rights”) to, or refers to or otherwise contemplates any consent, approval, release, waiver, agreement, notification or other step or action (each an “Action”) which may be required from or by, any person: |
(i) | which
is not a Party at such time; |
(ii) | in respect of any agreement which is not in existence at such time; |
(iii) | in respect of any indebtedness which has not been committed or incurred (or an agreement in relation thereto) at such time; or |
(iv) | in respect of Liabilities or Creditors (or other persons) for which the
relevant Discharge Date has occurred at or prior to such time or concurrently with any Action coming into effect, |
(ee) | For
the avoidance of doubt, subject to the express terms of this Agreement and any other applicable Debt Document, nothing in this Agreement shall prohibit any debt exchange, non-cash rollover or other similar or equivalent transaction in relation to any Liabilities. |
(ff) | To the extent that in this Agreement the consent of any Agent under any Debt Document or the relevant Creditors under any Debt Document is required, then such consent is hereby expressly given to the extent that the matter, step or action requiring approval is permitted by the terms of that Debt Document, including for the avoidance of doubt, for the purposes of determining the Instructing Group, the Majority High Yield Creditors, the Majority High Yield Lenders, the Majority Second
Lien Creditors, the Majority Second Lien Lenders, the Majority Senior Creditors, the Majority Senior Lenders, the Majority Senior Secured Creditors or any other class, group or percentage of any Creditors (including, for the avoidance of doubt, unanimity). |
(gg) | Nothing in this Agreement or any other Debt Document shall restrict the Company, any Party, the Creditors (or any of them) agreeing the ranking of their respective claims and other intercreditor arrangements among themselves in documentation separate to this Agreement and entered into solely between such parties (or on their behalf by an Agent). |
(hh) | For
the purposes of the Pre-Effective Date Security Documents, any definitions of “Beneficiaries”, “Designated Secured Obligations” and “Secured Obligations” (where defined in any Pre-Effective Date Security Document) and any other definitions in the Pre-Effective Date Security Documents (to the extent they are used within the definitions of “Beneficiaries”, “Designated Secured Obligations” and “Secured Obligations”) shall have the same meaning as ascribed to them in the relevant Pre-Effective Date Security Document. |
(ii) | Subject to paragraph (jj) above, for the purposes of the Pre-Effective Date Security Documents, the following references shall be construed or have the meaning as follows: |
(i) | any
references to any provisions in the Group ICA (as defined in the Supplemental Deed) in any Pre-Effective Date Security Document shall be construed as references to the relevant provisions in this Agreement; |
(ii) | any references to “Group Intercreditor Agreement” (where defined in any Pre-Effective Date Security Document) shall be construed as references to this Agreement; |
(iii) | any
references to any provisions in the High Yield ICA (as defined in the Supplemental Deed) in any Pre-Effective Date Security Document shall be construed as references to the relevant provisions in this Agreement; |
(iv) | any references to “HYD Intercreditor Agreement” (where defined in any Pre-Effective Date Security Document) shall be construed as references to this Agreement; |
(v) | any references to any provisions in the Security Trust Agreement (as defined in the Supplemental Deed) in any Pre-Effective Date Security Document
shall be construed as references to the relevant provisions in this Agreement; |
(vi) | any references to “Security Trust Agreement” (where defined in any Pre-Effective Date Security Document) shall be construed as references to this Agreement; |
(vii) | any reference to “Indebtedness” (where defined in any Pre-Effective Date Security Document) shall be construed as references to “indebtedness”; |
(viii) | any
reference to “Instructing Party” (where defined in any Pre-Effective Date Security Document) shall be construed as references to “Instructing Group”; |
(ix) | any reference to “Obligor” (where defined in any Pre-Effective Date Security Document) shall be construed as references to “Debtor”; |
(x) | any reference to “Relevant Agent” (where defined in any Pre-Effective Date Security Document) shall be construed as references to the relevant Agent; |
(xi) | any
reference to “Charged Assets” (where defined in any Pre-Effective Date Security Document) shall be construed as references to “Charged Property”; and |
(xii) | any reference to “Security Trustee” (where defined in any Pre-Effective Date Security Document) shall be construed as references to “Security Agent”. |
1.3 | Third Party Rights |
(a) | Unless
expressly provided to the contrary in this Agreement, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Rights Act”) to enforce or to enjoy the benefit of any term of this Agreement. |
(b) | Notwithstanding any term of this Agreement, the Consent of
any person who is not a Party is not required to rescind or vary this Agreement at any time. |
(c) | Any Receiver, Delegate or any other person described in Clause 21.11 (No proceedings) may, subject to this Clause 1.3 and the Third Parties Rights Act, rely on any Clause of this Agreement which expressly confers rights on it. |
(d) | The Third Parties Rights Act shall apply to this Agreement in respect of any Senior Secured Noteholder, Second Lien Noteholder, High Yield Noteholder or Unsecured
Noteholder which by holding a Senior Secured Note, Second Lien Note, High Yield Note or Unsecured Note, as the case may be, has effectively agreed to be bound by the provisions of this Agreement and will be deemed to receive the benefits hereof, and be subject to the terms and conditions hereof, as if such person was a Party hereto. For the purposes of the preceding sentence, upon any person becoming a Senior Secured Noteholder, Second Lien Noteholder, High Yield Noteholder or Unsecured Noteholder, such person shall be deemed a Party provided that such person is deemed to be a Party under the terms of the relevant Notes Indenture. |
1.4 | Waiver
and Termination |
(a) | Notwithstanding anything to the contrary in this Agreement or any other Debt Document, any Party may, together with exercising any right pursuant to paragraph (f) of Clause 29.1 (Required Consents), unilaterally waive, relinquish, or otherwise release or decline the right to receive or benefit from, any right in relation to a Debt Document, including in relation to Transaction Security or any guarantee, indemnity or other assurance against loss in respect of any Liabilities owed to it by a Debtor or Security Grantor with the prior consent of the Company; and by written notice from the
Company to each Agent party to this Agreement and the Security Agent at such time (a "Unilateral Waiver"). |
(b) | Following a Unilateral Waiver by a Party in accordance with paragraph (a) above, the Security Agent shall (i) be deemed to have unilaterally waived, relinquished, or otherwise released or declined the right to receive or benefit from the same or any substantially equivalent right to the rights subject to such Unilateral Waiver, in connection with any parallel debt and/or joint and several creditorship structure relating to the relevant Liabilities; and (ii) at the request and cost of the Company, take any
action or execute any document reasonably requested by the Company which is necessary or desirable to give effect to or evidence the releases and other actions described in this Clause 1.4. |
(c) | Any Unilateral Waiver by a Party in accordance with paragraph (a) above shall also be deemed to constitute a waiver of the rights of such Party (and the Security Agent, as relevant) under Clause 18 (Application of Proceeds), Clause 19 |
(d) | To the extent that the consent of any Creditor or other Party (in each case other than the Company and each Party granting such Unilateral Waiver) would be required to give effect to any Unilateral Waiver or any other action or matter set out in this Clause 1.4, such Creditor or other Party shall be deemed to have given such consent. |
(e) | Notwithstanding
anything to the contrary in this Agreement or any other Debt Document: |
(i) | no breach of any representation, warranty, undertaking, obligation or other term of (or Default or Event of Default under) a Debt Document shall be deemed or construed to have occurred as a direct or indirect result of a Unilateral Waiver or any actions or steps implemented or taken to give effect to that Unilateral Waiver; and |
(ii) | for the purpose of testing or satisfying any requirement (or any qualifier or definition based upon such a requirement) in any
Debt Document that any guarantee, indemnity or other assurance against loss or any Transaction Security must, to the extent legally possible or subject to the Agreed Security Principles (or both), be given, or expressed to be given, to all Secured Parties in respect of their Liabilities, any Liabilities the subject of a Unilateral Waiver shall be deemed to have been given or expressed to have been given that guarantee, indemnity or other assurance against loss or any Transaction Security. |
1.5 | No Recourse |
1.6 | Personal Liability |
2. | RANKING AND PRIORITY |
2.1 | Creditor
Liabilities |
(a) | the Debtors (other than a HY Issuer or a HY Borrower) to the Primary Creditors shall rank in right and priority of payment in the following order and are postponed and subordinated to any prior ranking Liabilities as follows: |
(i) | first, the Senior Lender Liabilities, the Senior Secured Notes Liabilities, the Pari Passu Debt Liabilities, the Hedging Liabilities, the Agent Liabilities, the Arranger
Liabilities, the Second Lien Liabilities (but subject to Clause 2.2 (Transaction Security)), the Senior Secured Notes Trustee Amounts, the Second Lien Notes Trustee Amounts, the High Yield Notes Trustee Amounts, the Unsecured Notes Trustee Amounts and the Pari Passu Debt Representative Amounts pari passu and without any preference between them; and |
(ii) | second, the High Yield Loan Liabilities, the High Yield Notes Liabilities, the Unsecured Loan Liabilities and the Unsecured Notes Liabilities pari passu between themselves and without any preference between them; and |
(b) | a
HY Issuer or a HY Borrower to the Primary Creditors shall rank in right and priority of payment pari passu between themselves and without any preference between them (but subject to Clause 2.2 (Transaction Security)). |
2.2 | Transaction Security |
(a) | Each of the Parties agrees that the Transaction Security shall rank and secure the following Liabilities (only to the extent that such Transaction Security is expressed to secure those Liabilities),
but in the case of the Senior Lender Liabilities, the Senior Secured Notes Liabilities, the Pari Passu Debt Liabilities, the Senior Agent Liabilities, the Senior Arranger Liabilities, the Senior Secured Notes Trustee Amount, the Pari Passu Debt Representative Amounts, the Second Lien Agent Liabilities, the Second Lien Notes Trustee Amounts and the Hedging Liabilities, without prejudice to Clause 18 (Application of Proceeds) and Clause 19 (Equalisation), in the following order: |
(i) | first, the Senior Lender Liabilities, the Senior Secured Notes Liabilities, the Pari Passu Debt Liabilities, the Senior Agent Liabilities, the Senior Arranger
Liabilities, the Senior Secured Notes Trustee Amounts, the Pari Passu Debt Representative Amounts, the Hedging Liabilities, the Second Lien Agent Liabilities and the Second Lien Notes Trustee Amounts (but, in the case of Transaction Security granted under the Pre-Effective Date Security Documents, only to the extent that such Transaction Security is expressed to secure those Liabilities, but without prejudice to Clause 18 (Application of Proceeds) and Clause 19 (Equalisation)), pari passu and without any preference between them; and |
(ii) | second, the Second Lien Liabilities (other than the Second Lien Agent Liabilities) pari passu and without
any preference between them. |
(b) | For the avoidance of doubt, it is expressly acknowledged and agreed that any Hedging Liability that constitutes an Excluded Swap Obligation shall not be secured by the assets of any Non-ECP Debtor. |
2.3 | Intra-Group Liabilities and Subordinated Liabilities |
(a) | Each of the Parties
agrees that the Intra-Group Liabilities and Subordinated Liabilities are postponed and subordinated to the Liabilities owed by the Debtors or the Security Grantors to the Primary Creditors. |
(b) | This Agreement does not purport to rank any of the Intra-Group Liabilities and Subordinated Liabilities as between themselves. |
2.4 | Additional and/or Refinancing Debt |
(a) | The
Creditors acknowledge that the Debtors (or any of them) may wish to (a) incur incremental Borrowing Liabilities and/or Guarantee Liabilities in respect of incremental Borrowing Liabilities or (b) refinance Borrowing Liabilities and/or incur Guarantee Liabilities in respect of any such refinancing of Borrowing Liabilities, which in any such case are intended to rank and/or share any existing Security pari passu with any existing Liabilities and/or to rank behind any existing Liabilities and/or to share in any existing Security behind any existing Liabilities. The Creditors confirm that if and to the extent such a financing or refinancing and such ranking and such Security is permitted by the terms of the Debt Documents at such time, they will (at the cost of the Debtors) co-operate with the Debtors with a view to enabling such financing or refinancing and such sharing in the Security to take place. In particular, but without limitation, the Senior Lenders, the Senior
Secured Noteholders, the Pari Passu Creditors, the Second Lien Lenders, the Second Lien Noteholders, the High Yield Lenders, the High Yield Noteholders, the Unsecured Lenders and the Unsecured Noteholders hereby authorise and direct their Agent to and such Agent shall, and the Hedge Counterparties agree that they shall, execute any amendment to this Agreement and such other Debt Documents that are reasonably required to reflect such arrangements to the extent such financing, refinancing and/or sharing is permitted by such Debt Documents. |
(b) | The Debtors may not incur any Borrowing Liabilities or Guarantee Liabilities which: |
(i) | fall
within paragraph (c) of the definition of Secured Obligations; but |
(ii) | do not fall within paragraphs (a) or (b) of the definition of Secured Obligations, |
2.5 | Anti-layering |
(a) | Until
the Second Lien Discharge Date, no Debtor shall, without the approval of the Majority Second Lien Creditors, issue or allow to remain outstanding any Liabilities that: |
(i) | are secured or expressed to be secured by Transaction Security on a basis junior to the Senior Secured Liabilities but senior to the Second Lien Liabilities; |
(ii) | are
expressed to rank or rank so that they are subordinated to any of the Senior Secured Liabilities but are senior to the Second Lien Liabilities; or |
(iii) | are contractually subordinated in right of payment to the Senior Secured Liabilities and senior in right of payment to the Second Lien Liabilities. |
(b) | The foregoing shall not prevent: |
(i) | subordination
arising by operation of law; or |
(ii) | a Debtor from incurring additional Senior Liabilities in accordance with the terms of the Senior Finance Documents which are expressed to be secured by the Transaction Security on a pari passu super senior basis to the other Senior Liabilities and/or which are contractually senior in right of payment to any of the other Senior Liabilities. |
3. | SENIOR LENDER LIABILITIES, PARI
PASSU DEBT LIABILITIES AND SENIOR SECURED NOTES LIABILITIES |
3.1 | Payments of Senior Secured Creditor Liabilities |
(a) | The Debtors and Security Grantors may make Payments in respect of the Senior Secured Creditor Liabilities at any time provided that, following the occurrence of a Senior Acceleration Event, a Senior Secured Notes Acceleration Event, a Pari Passu Debt Acceleration Event or an Insolvency Event, no Debtor may make (and no Senior Secured Creditor may receive) Payments of the
Senior Lender Liabilities, Pari Passu Debt Liabilities or Senior Secured Notes Liabilities except from Group Recoveries distributed in accordance with Clause 18 (Application of Proceeds). |
(b) | For the avoidance of doubt, the proviso in paragraph (a) above: |
(i) | acts as a suspension of payment and not as a waiver of the right to receive payment on the date such payments are due; |
(ii) | will
not prevent the accrual or capitalisation of interest (including default interest) in accordance with the Secured Debt Documents; |
(iii) | will not prevent the payment of any Senior Secured Notes Trustee Amounts, any Senior Agent Liabilities and/or any Pari Passu Debt Representative Amounts; and |
(iv) | will not prevent the payment of audit fees, directors’ fees, taxes and other proper and incidental expenses required to maintain existence. |
3.2 | Amendments
and Waivers |
3.3 | Security and guarantees: Senior Secured Creditors |
(a) | any Security from any Debtor, any member of the Group or any Security Grantor in respect of the Senior Lender Liabilities, the Pari Passu Debt Liabilities or the Senior Secured Notes Liabilities in addition to the Common Transaction Security and (to the extent applicable) the Transaction Security granted under the Pre-Effective Date Security Documents, if (except for any Security permitted under Clause 3.4 (Security: Ancillary Facility Lenders and Issuing Banks)) and to the extent legally possible and subject to any Agreed Security Principles, at the same time it is also offered either: |
(i) | to
the Security Agent as agent or trustee for the other Senior Secured Creditors in respect of their Liabilities; or |
(ii) | in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Agent as agent or trustee for the Senior Secured Creditors: |
(A) | to the other Senior Secured Creditors in respect of their Liabilities; or |
(B) | to
the Security Agent under a parallel debt structure, joint and several creditor structure or agency structure for the benefit of the other Senior Secured Creditors, |
(b) | any guarantee, indemnity or other assurance
against loss from any Debtor, any member of the Group or any Security Grantor in respect of the Senior Lender |
(i) | the form of the Senior Facilities Agreement as at the Effective Date (or any other Finance Document (as defined therein) in its form as at the Effective Date); or |
(ii) | this
Agreement; or |
(iii) | any Common Assurance, |
3.4 | Security: Ancillary Facility Lenders and Issuing Banks |
(a) | the
Common Transaction Security and (to the extent applicable) the Transaction Security granted under the Pre-Effective Date Security Documents; |
(b) | each guarantee, indemnity or other assurance against loss contained in: |
(i) | the form of the Senior Facilities Agreement as at the Effective Date; or |
(ii) | this Agreement;
or |
(iii) | any Common Assurance; |
(c) | indemnities and assurances against loss contained in the Ancillary Facility Documents no greater in extent than any of those referred to in paragraph (b) above; |
(d) | any
SFA Cash Cover permitted under the Senior Facilities Agreement (or equivalent provision contained in any Pari Passu Debt Document) relating to any Ancillary Facility or for any Documentary Credit issued by the Issuing Bank; |
(e) | the indemnities or any netting or set-off arrangement contained in an ISDA Master Agreement (other than for the avoidance of doubt those in any credit support annex or similar supporting Security Document), or any indemnities or any netting or set-off arrangements which are similar in meaning and effect (in the case of a Hedging Agreement which is not based on an ISDA Master Agreement); or |
(f) | any
Security, guarantee, indemnity or other assurance against loss giving effect to, or arising as a result of the effect of, any netting or set-off arrangement relating to the Ancillary Facilities for the purpose of netting debit and credit balances arising under the Ancillary Facilities. |
3.5 | Restriction on Enforcement: Senior Lenders, Pari Passu Creditors and Senior Secured Notes Creditors |
3.6 | Restriction on Enforcement: Ancillary Facility Lenders and Issuing Banks |
3.7 | Permitted Enforcement: Ancillary Facility Lenders and Issuing Banks |
(a) | The Ancillary Facility Lenders and Issuing Banks may take Enforcement Action which would otherwise be available to it but for Clause 3.6 if: |
(i) | at the
same time as, or prior to, that action, Enforcement Action has been taken in respect of the Senior Lender Liabilities or Pari Passu Revolving Liabilities (excluding the Liabilities owing to Ancillary Facility Lenders and the Issuing Banks), in which case the Ancillary Facility Lenders and the Issuing Banks may take the same Enforcement Action as has been |
(ii) | that
action is contemplated by, and can be taken by the Ancillary Facility Lenders and Issuing Banks under, the Senior Facilities Agreement or relevant Pari Passu Debt Document or Clause 3.4 (Security: Ancillary Facility Lenders and Issuing Banks); |
(iii) | that Enforcement Action is taken in respect of SFA Cash Cover which has been provided in accordance with the Senior Facilities Agreement or relevant Pari Passu Debt Document; |
(iv) | at the same time as or prior to, that action, the Consent
of the Majority Senior Creditors to that Enforcement Action is obtained; or |
(v) | an Insolvency Event has occurred in relation to any Debtor or any member of the Group, in which case, after the occurrence of that Insolvency Event, each Ancillary Facility Lender and each Issuing Bank shall be entitled (if it has not already done so) to exercise any right it may otherwise have in respect of that Debtor or member of the Group to: |
(A) | accelerate any of that Debtor’s or member of the Group’s Senior Lender Liabilities or Pari Passu Revolving
Liabilities or declare them prematurely due and payable on demand; |
(B) | make a demand under any guarantee, indemnity or other assurance against loss given by that Debtor or member of the Group in respect of any Senior Lender Liabilities or Pari Passu Revolving Liabilities; |
(C) | exercise any right of set-off or take or receive any Payment in respect of any Senior Lender Liabilities or Pari Passu Revolving Liabilities of that Debtor or member of the Group; or |
(D) | claim
and prove in the liquidation of that Debtor or member of the Group for any Senior Lender Liabilities or Pari Passu Revolving Liabilities owing to it. |
(b) | Clause 3.6 (Restriction on Enforcement: Ancillary Facility Lenders and Issuing Banks) shall not restrict any right of an Ancillary Facility Lender to net or set-off in relation to a Multi-account Overdraft Facility, in accordance with the terms of the Senior Facilities Agreement or relevant Pari Passu Debt Document, to the extent that the netting or set-off represents a reduction from a Permitted Gross |
3.8 | Option to purchase: Senior Secured Notes Creditors and Pari Passu Creditors |
(a) | After a Distress Event, one or more of the Senior Secured Notes Trustee and the Pari Passu Debt Representative(s) (the “Purchasing Senior Secured Creditors”) may: |
(i) | at
the direction and expense of one or more of the Senior Secured Noteholders and/or Pari Passu Creditors (as applicable); |
(ii) | after all such Senior Secured Noteholders and Pari Passu Creditors have been given the opportunity to so participate; and |
(iii) | if the Senior Secured Notes Trustee and/or the Pari Passu Debt Representative(s) gives not less than ten days’ prior written notice to the Security Agent, |
(A) | that transfer is lawful and, subject to paragraph (ii) below, otherwise permitted by the terms of the Senior Facilities Agreement; |
(B) | any conditions relating to such a transfer contained in the Senior Facilities Agreement are complied with, other than: |
(1) | any
requirement to obtain the Consent of, or consult with, a Debtor relating to such transfer, which Consent or consultation shall not be required; or |
(2) | to the extent the Purchasing Senior Secured Creditors (acting as a whole) provide cash cover for any Documentary Credit, the consent of the relevant Issuing Bank to such transfer; |
(C) | the Senior Agent, on behalf of the Senior Lenders, is paid an amount equal to the aggregate of: |
(1) | any
amounts provided as cash cover by the Purchasing Senior Secured Creditors for any Documentary Credit (as envisaged by paragraph (B)(2) above); |
(2) | all of the Senior Lender Liabilities at that time (whether or not due), including all amounts that would have been payable under the Senior Facilities Agreement if the Senior Facilities were being prepaid by the relevant Debtors on the date of that payment; and |
(3) | all costs and expenses (including legal fees) incurred by the Senior Agent and/or the Senior Lenders and/or the Security
Agent as a consequence of giving effect to that transfer; |
(D) | as a result of that transfer, the Senior Lenders have no further actual or contingent liability to a Debtor under the relevant Debt Documents; |
(E) | an indemnity is provided from each Purchasing Senior Secured Creditor (but, for the avoidance of doubt, this does not include a Senior Secured Notes Representative or, in the case of Pari Passu Debt, the applicable Pari Passu Debt Representative(s)) (or from another third party acceptable to all the Senior Lenders) in a
form reasonably satisfactory to each Senior Lender in respect of all losses which may be sustained or incurred by any Senior Lender in consequence of any sum received or recovered by any Senior Lender from any person being required (or it being alleged that it is required) to be paid back by or clawed back from any Senior Lender for any reason; |
(F) | the transfer is made without recourse to, or representation or warranty from, the Senior Lenders, except that each Senior Lender shall be deemed to have represented and warranted on the date of that transfer that it has the corporate power to effect that transfer and it has taken all necessary action to authorise the making by it of that transfer; |
(G) | the
Second Lien Creditors have not exercised their rights under Clause 8.13 (Option to Purchase: Second Lien Creditors) or, having exercised such rights, have failed to complete the acquisition of the Senior Lender Liabilities, the Senior Secured Notes Liabilities and the Pari Passu Debt Liabilities in accordance |
(H) | the
High Yield Creditors have not exercised their rights under Clause 9.15 (Option to purchase: High Yield Creditors) or, having exercised such rights, have failed to complete the acquisition of the Senior Lender Liabilities, the Senior Secured Notes Liabilities and the Pari Passu Debt Liabilities in accordance with Clause 9.15 (Option to purchase: High Yield Creditors). |
(b) | Subject to paragraph (b) of Clause 3.9 (Hedge Transfer: Purchasing Senior Secured Creditors) the Purchasing Senior Secured Creditors may only require a Senior Lender Liabilities Transfer if, at the same time, they require a Hedge Transfer in accordance
with Clause 3.9 (Hedge Transfer: Purchasing Senior Secured Creditors) and if, for any reason, a Hedge Transfer cannot be made in accordance with Clause 3.9 (Hedge Transfer: Purchasing Senior Secured Creditors), no Senior Lender Liabilities Transfer may be required to be made. |
(c) | The Senior Agent shall, at the request of the Purchasing Senior Secured Creditors notify the Purchasing Senior Secured Creditors of the sum of: |
(i) | the amounts
described in paragraphs (a)(C)(2) and (a)(C)(3) above; and |
(ii) | the amount of each Documentary Credit for which cash cover is to be provided by all Purchasing Senior Secured Creditors (as a whole). |
(d) | If more than one Purchasing Senior Secured Creditor wishes to require a Senior Lender Liabilities Transfer in accordance with paragraph (a) above, each such Purchasing Senior Secured Creditor shall acquire the Senior Lender Liabilities pro rata, in the proportion that its credit participation bears to the aggregate credit participations
of all the Purchasing Senior Secured Creditors. Any Purchasing Senior Secured Creditors wishing to require a Senior Lender Liabilities Transfer shall inform the Senior Secured Notes Trustee in accordance with the terms of the Senior Secured Notes Indenture or the relevant Pari Passu Debt Representative(s) in accordance with the terms of the relevant Pari Passu Debt Documents, who will determine (consulting with each other as required) the appropriate share of the Senior Lender Liabilities to be acquired by each such Purchasing Senior Secured Creditor and who shall inform each such Purchasing Senior Secured Creditor accordingly. Furthermore, the Senior Secured Notes Trustee or the Pari Passu Debt Representative(s) (as applicable) shall promptly inform the Senior Agent of the Purchasing Senior Secured Creditors intention to require the transfer of the Senior Lender Liabilities. |
3.9 | Hedge
Transfer: Purchasing Senior Secured Creditors |
(a) | The Purchasing Senior Secured Creditors may, by giving not less than ten days’ notice to the Security Agent, require, at the same time as a Senior Lender Liabilities Transfer under Clause 3.8 (Option to purchase: Senior Secured Notes Creditors and Pari Passu Creditors), a Hedge Transfer if: |
(i) | that
transfer is lawful and otherwise permitted by the terms of the Hedging Agreements in which case no Debtor or member of the Group shall be entitled to withhold its Consent to that transfer; |
(ii) | any conditions (other than the Consent of, or any consultation with, any Debtor or member of the Group) relating to that transfer contained in the Hedging Agreements are complied with; |
(iii) | each Hedge Counterparty is paid (in the case of a positive number) or pays (in the case of a negative number) an amount equal to the aggregate of (A)
the Hedging Purchase Amount in respect of the hedging transactions under the relevant Hedging Agreement at that time and (B) all costs and expenses (including legal fees) incurred by such Hedge Counterparty as a consequence of giving effect to that transfer; |
(iv) | as a result of that transfer, the Hedge Counterparties have no further actual or contingent liability to any Debtor under the Hedging Agreements; |
(v) | an indemnity is provided from each Purchasing Senior Secured Creditor (but, for the avoidance of doubt, this does not include
any Senior Secured Notes Representative or, in the case of Pari Passu Debt, the applicable Pari Passu Debt Representative(s)) (or from another third party acceptable to the relevant Hedge Counterparty) in a form reasonably satisfactory to the relevant Hedge Counterparty in respect of all losses which may be sustained or incurred by that Hedge Counterparty in consequence of any sum received or recovered by that Hedge Counterparty being required (or it being alleged that it is required) to be paid back by or clawed back from the Hedge Counterparty for any reason; |
(vi) | that transfer is made without recourse to, or representation or warranty from, the relevant Hedge Counterparty, except that the relevant Hedge Counterparty shall be deemed to have represented
and warranted on the date of that transfer that it has the corporate power to effect that transfer and it has taken all necessary action to authorise the making by it of that transfer; |
(vii) | the Second Lien Creditors have not exercised their rights under Clause 8.14 (Hedge Transfer: Purchasing Second Lien Creditors) or, having exercised such rights, have failed to complete the Hedge Transfer |
(viii) | the High Yield Creditors have not exercised their rights under Clause 9.16 (Hedge Transfer: High Yield Creditors) or, having exercised such rights, have failed to complete the Hedge Transfer concerned in accordance with Clause 9.16 (Hedge Transfer: High Yield Creditors). |
(b) | The Purchasing Senior Secured Creditors (acting
as a whole) and any Hedge Counterparty may agree (in respect of the Hedging Agreements (or one or more of them) to which that Hedge Counterparty is a party) that a Hedge Transfer required by all the Purchasing Senior Secured Creditors (acting as a whole) pursuant to paragraph (a) above shall not apply to that Hedging Agreement(s) or to the Hedging Liabilities and Hedge Counterparty Obligations under that Hedging Agreement(s). |
(c) | If more than one Purchasing Senior Secured Creditor wishes to require a Hedge Transfer in accordance with paragraph (a) above, each such Purchasing Senior Secured Creditor shall acquire the relevant Hedging Liabilities pro rata, in the proportion that its credit participation bears to the aggregate credit participations of
all the Purchasing Senior Secured Creditors. Any Purchasing Senior Secured Creditors wishing to require a Hedge Transfer shall inform the Senior Secured Notes Trustee in accordance with the terms of the Senior Secured Notes Indenture or the relevant Pari Passu Debt Representative(s) in accordance with the terms of the relevant Pari Passu Debt Documents, who will determine (consulting with each other as required) the appropriate share of the relevant Hedging Liabilities to be acquired by each such Purchasing Senior Secured Creditor and who shall inform each such Purchasing Senior Secured Creditor accordingly. Furthermore, the Senior Secured Notes Trustee or the Pari Passu Debt Representative(s) (as applicable) shall promptly inform the relevant Hedge Counterparty(ies) of the Purchasing Senior Secured Creditors intention to require the Hedge Transfer. |
4. | HEDGE
COUNTERPARTIES AND HEDGING LIABILITIES |
4.1 | Identity of Hedge Counterparties |
(a) | Subject to paragraph (b) below, no person providing hedging arrangements to any Debtor shall be entitled to share in any of the Transaction Security or in the benefit of any guarantee or indemnity from any Debtor, member of the Group or Security Grantor in respect of any of the liabilities arising in relation to those hedging arrangements nor shall those liabilities be treated as Hedging Liabilities unless that person is or becomes a Party as a Hedge
Counterparty in accordance with this Agreement. |
(b) | Paragraph (a) above shall not apply to a Hedging Ancillary Lender. |
4.2 | Restriction on Payment: Hedging Liabilities |
(a) | that Payment is permitted under Clause 4.3 (Permitted Payments: Hedging Liabilities); or |
(b) | the taking or receipt of
that Payment is permitted under paragraph (c) of Clause 4.9 (Permitted Enforcement: Hedge Counterparties). |
4.3 | Permitted Payments: Hedging Liabilities |
(a) | Subject to paragraph (b) below, the Debtors may make Payments to any Hedge Counterparty in respect of the Hedging Liabilities then due to that Hedge Counterparty under any Hedging Agreement in accordance with the terms of that Hedging Agreement: |
(i) | if
the Payment is a Scheduled Payment arising under the relevant Hedging Agreement; |
(ii) | to the extent that the relevant Debtor’s obligation to make the Payment arises as a result of the operation of: |
(A) | any of sections 2(d) (Deduction or Withholding for Tax), 2(e) (Default Interest; Other Amounts), 8(a) (Payment in the Contractual Currency), 8(b) (Judgments)
and 11 (Expenses) of the 1992 ISDA Master Agreement (if the Hedging Agreement is based on a 1992 ISDA Master Agreement); |
(B) | any of sections 2(d) (Deduction or Withholding for Tax), 8(a) (Payment in the Contractual Currency), 8(b) (Judgments), 9(h)(i) (Prior to Early Termination) and 11 (Expenses) of the 2002 ISDA Master Agreement (if the Hedging Agreement is based on a 2002 ISDA Master Agreement); or |
(C) | any
provision of a Hedging Agreement which is similar in meaning and effect to any provision listed in paragraphs (A) or (B) above (if the Hedging Agreement is not based on an ISDA Master Agreement); |
(iii) | without prejudice to paragraph (viii) below, to the extent that the relevant Debtor’s obligation to make the Payment arises from a Non-Credit Related Close-Out; |
(iv) | to
the extent that: |
(A) | the relevant Debtor’s obligation to make the Payment arises from a Credit Related Close-Out in relation to that Hedging Agreement; and |
(B) | no Senior Default, Senior Secured Notes Default or Pari Passu Debt Default is continuing at the time of the Payment; |
(v) | if the Payment is a Payment
pursuant to Clause 18.1 (Order of Application of Group Recoveries); |
(vi) | if the Majority Senior Secured Creditors give prior Consent to the Payment being made; |
(vii) | if: |
(A) | the Payment arises from an amendment or waiver permitted under Clause 4.6 (Amendments
and Waivers: Hedging Agreements) or a close-out or termination permitted under paragraphs (d) or (e) of Clause 4.12 (Terms of Hedging Agreements); or |
(B) | the Payment arises from a close-out or termination arising as a result of an Event of Default in respect of which the Hedge Counterparty is the Defaulting Party occurring under the Hedging Agreement (“Event of Default” and “Defaulting Party” being as defined in the ISDA Master Agreement) or an equivalent event (in the case of a Hedging Agreement not based on an ISDA Master Agreement), |
(viii) | if the Debtor’s obligation to make the Payment arises as a result of a close-out or termination arising as a result of the relevant Debtor terminating or closing-out the relevant Hedging Agreement as a result of: |
(A) | in relation to a Hedging Agreement which is based on the 1992 ISDA Master Agreement: |
(1) | an
Illegality or Tax Event or Tax Event Upon Merger (each as defined in the 1992 ISDA Master Agreement); or |
(2) | an event similar in meaning and effect to a Force Majeure Event (as defined in paragraph (B) below), |
(B) | in relation to a Hedging Agreement which is based on the 2002 ISDA Master Agreement, an Illegality or Tax Event, Tax Event Upon Merger or a Force Majeure Event (each as defined in the 2002 ISDA Master Agreement) has occurred
in respect of that Hedging Agreement; |
(C) | in relation to a Hedging Agreement which is not based on an ISDA Master Agreement, any event similar in meaning and effect to an event described in paragraphs (A) or (B) above has occurred in respect of that Hedging Agreement; or |
(D) | a Termination Event (other than a Termination Event described in paragraphs (A), (B) and (C) above) in respect of which the Hedge Counterparty is an Affected Party (“Termination Event” and “Affected
Party” being as defined in the relevant Hedging Agreement, in the case of a Hedging Agreement based on an ISDA Master Agreement) or an equivalent termination event (in the case of a Hedging Agreement not based on an ISDA Master Agreement), |
(ix) | if the Payment arises from a close-out or termination in whole or in part required pursuant to Clause 4.16 (Terminations of Offsetting Swaps). |
(b) | No
Payment may be made to a Hedge Counterparty under paragraph (a) above if: |
(i) | any Scheduled Payment due from that Hedge Counterparty to a Debtor under a Hedging Agreement to which they are both party is due and unpaid; or |
(ii) | an Acceleration Event or an Insolvency Event has occurred, except from Group Recoveries distributed in accordance with Clause 18 (Application of Proceeds). |
(c) | Failure by a Debtor to make a Payment to a Hedge Counterparty which results solely from the operation of paragraph (b) above shall, without prejudice to Clause 4.4 (Payment obligations continue), not result in a default (however described) in respect of that Debtor under that Hedging Agreement or any other Secured Debt Document. |
(d) | Nothing
in this Agreement obliges a Hedge Counterparty to make a payment to a Debtor under a Hedging Agreement to which they are both party if any Scheduled Payment due from that Debtor to the Hedge Counterparty under that Hedging Agreement is due and unpaid. For the avoidance of doubt, this provision shall not affect any Payment which is due from a Hedge Counterparty to a Debtor as a result of a Hedging Agreement to which they are both a party being terminated or closed-out. |
4.4 | Payment obligations continue |
4.5 | No acquisition of Hedging Liabilities |
(a) | enter
into any Liabilities Acquisition; or |
(b) | beneficially own all or any part of the share capital of a company that is party to a Liabilities Acquisition, |
4.6 | Amendments and Waivers: Hedging Agreements |
(a) | Subject
to paragraph (b) below and Clause 4.14 (No Outstanding Transactions), the Hedge Counterparties and the Debtors may not, at any time, amend or waive any term of the Hedging Agreements. |
(b) | A Hedge Counterparty and a Debtor may, by mutual agreement, amend or waive any term of a Hedging Agreement to which they are a party in accordance with the terms of that Hedging Agreement if: |
(i) | that amendment or waiver does not breach another term of this Agreement; and |
(ii) | such
amendment or waiver would not result in a breach of the terms of the Senior Facilities Agreement, the Senior Secured Notes Indenture(s) or the Pari Passu Debt Documents. |
4.7 | Security: Hedge Counterparties |
(a) | the
Common Transaction Security and (to the extent applicable) the Transaction Security granted under the Pre-Effective Date Security Documents; |
(b) | any guarantee, indemnity or other assurance against loss contained in: |
(i) | the form of the Senior Facilities Agreement as at the Effective Date; |
(ii) | this Agreement; |
(iii) | any
Common Assurance; or |
(iv) | the relevant Hedging Agreement no greater in extent than any of those referred to in paragraphs (i) to (iii) above; |
(c) | as otherwise contemplated by Clause 3.3 (Security and guarantees: Senior Secured Creditors); and |
(d) | the indemnities contained
in the ISDA Master Agreements (in the case of a Hedging Agreement which is based on an ISDA Master Agreement) or any indemnities which are similar in meaning and effect to those indemnities (in the case of a Hedging Agreement which is not based on an ISDA Master Agreement). |
4.8 | Restriction on Enforcement: Hedge Counterparties |
4.9 | Permitted Enforcement: Hedge Counterparties |
(a) | To
the extent it is able to do so under the relevant Hedging Agreement, a Hedge Counterparty may terminate or close-out in whole or in part any hedging transaction under that Hedging Agreement prior to its stated maturity: |
(i) | if, prior to a Distress Event, the Company has certified to that Hedge Counterparty that the termination or close-out would not result in a breach of any of the following: (A) the Senior Facilities Agreement; (B) the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes remain outstanding; or (C) the Pari Passu Debt Documents pursuant
to which any Pari Passu Debt remains outstanding; |
(ii) | if a Distress Event has occurred; |
(iii) | if: |
(A) | in relation to a Hedging Agreement which is based on the 1992 ISDA Master Agreement: |
(1) | an
Illegality or Tax Event or Tax Event Upon Merger (each as defined in the 1992 ISDA Master Agreement); or |
(2) | an event similar in meaning and effect to a Force Majeure Event (as defined in paragraph (B) below), |
(B) | in relation to a Hedging Agreement which is based on the 2002 ISDA Master Agreement, an Illegality or Tax Event, Tax Event Upon Merger or a Force Majeure Event (each as defined in the 2002 ISDA Master Agreement) has occurred
in respect of that Hedging Agreement; or |
(C) | in relation to a Hedging Agreement which is not based on an ISDA Master Agreement, any event similar in meaning and effect to an event described in paragraphs (A) or (B) above has occurred in respect of that Hedging Agreement; |
(iv) | if
an Event of Default has occurred under clauses 26.6 (Insolvency) to 26.10 (Similar events) of the Senior Facilities Agreement or any equivalent provision in any other Secured Debt Document (other than a Hedging Agreement) which is similar in meaning and effect, in relation to a Debtor that is a party to that Hedging Agreement; |
(v) | if the obligations owing by any Debtor under the relevant Hedging Agreement cease to be secured by substantially the same Security as that which secures any other Senior Secured Liabilities on a pari passu basis (or, if there are no other Senior Secured Liabilities outstanding at the time, by the Security which secured such other Senior
Secured Liabilities immediately prior to their discharge); or |
(vi) | on or immediately following the later to occur of the Senior Lender Discharge Date, the Pari Passu Debt Discharge Date, the Senior Secured Notes Discharge Date and the Second Lien Discharge Date; provided that there is no refinancing of any debt discharged on any such discharge date and provided that there are no classes of debt (in each case, other than Hedging Liabilities, Subordinated Liabilities or Intra-Group Liabilities) for the purposes of this Agreement following the occurrence of all such discharge dates. |
(b) | If
a Debtor has defaulted on any Payment due under a Hedging Agreement (after allowing any applicable notice or grace periods) and the default has continued unwaived for more than five Business Days after notice of that default has been given by the relevant Hedge Counterparty to the relevant Debtor and to the Security Agent pursuant to paragraph (m) of Clause 26.3 (Notification of prescribed events), the relevant Hedge Counterparty: |
(i) | may, to the extent it is able to do so under the relevant Hedging Agreement, terminate or close-out in whole or in part all hedging transactions under that Hedging Agreement; and |
(ii) | until
such time as the Security Agent has given notice to that Hedge Counterparty that the Transaction Security is being enforced (or that any formal steps are being taken to enforce the Transaction Security), shall be entitled to exercise any right it might otherwise have to sue for, commence or join legal or arbitration proceedings against any Debtor to recover any Hedging Liabilities due under that Hedging Agreement. |
(c) | After the occurrence of an Insolvency Event, each Hedge Counterparty shall be entitled to exercise any right it may otherwise have in respect of that Debtor or member of the Group to: |
(i) | prematurely
close-out or terminate any Hedging Liabilities of that Debtor or member of the Group; |
(ii) | make a demand under any guarantee, indemnity or other assurance against loss given by that Debtor or member of the Group in respect of any Hedging Liabilities; |
(iii) | exercise any right of set-off or take or receive any Payment in respect of any Hedging Liabilities of that Debtor or member of the Group; or |
(iv) | claim
and prove in the liquidation of that Debtor or member of the Group for the Hedging Liabilities owing to it. |
4.10 | Required Enforcement: Hedge Counterparties |
(a) | Subject to paragraph (b) below, a Hedge Counterparty shall promptly (if it is entitled to) terminate or close-out in full all hedging transactions under all of the Hedging Agreements to which it is party prior to their stated maturity, following: |
(i) | the
occurrence of a Senior Acceleration Event, a Pari Passu Debt Acceleration Event or a Senior Secured Notes Acceleration Event and delivery to it of a notice from the Security Agent that that Senior Acceleration Event, Pari Passu Debt Acceleration Event or Senior Secured Notes Acceleration Event (as applicable) has occurred; and |
(ii) | delivery to it of a subsequent notice from the Security Agent (acting on the instructions of an Instructing Group) instructing it to do so. |
(b) | Paragraph (a) above shall not apply to the extent that that
Senior Acceleration Event, Pari Passu Debt Acceleration Event or Senior Secured Notes Acceleration Event (as applicable) occurred as a result of an arrangement made between any Debtor and any Senior Secured Creditor with the purpose of bringing about that Senior Acceleration Event, Pari Passu Debt Acceleration Event or Senior Secured Notes Acceleration Event (as applicable). |
(c) | If a Hedge Counterparty is entitled to terminate or close-out any hedging transaction under paragraph (b) of Clause 4.9 (Permitted Enforcement: Hedge Counterparties) (or would have been able to if that Hedge Counterparty had given the notice referred to in that paragraph) but has not terminated or closed out each such hedging transaction,
that Hedge Counterparty shall promptly terminate or close-out in full each such hedging transaction following a request to do so by the Security Agent (acting on the instructions of an Instructing Group). |
4.11 | Treatment of Payments due to Debtors on termination of hedging transactions |
(a) | If,
on termination of any hedging transaction under any Hedging Agreement occurring after a Distress Event, a settlement amount or other amount (following the application of any Close-Out Netting, Payment Netting or Inter-Hedging Agreement Netting in respect of that Hedging Agreement) falls due from a Hedge Counterparty to the relevant Debtor then that amount shall be paid by that Hedge Counterparty to the Security Agent, treated as the proceeds of enforcement of the Transaction Security and applied in accordance with the terms of this Agreement. |
(b) | The payment of that amount by the Hedge Counterparty to the Security Agent in accordance with paragraph (a) above shall discharge the Hedge Counterparty’s obligation to pay that amount to that Debtor. |
4.12 | Terms
of Hedging Agreements |
(a) | each Hedging Agreement documents only Offsetting Swaps and/or other hedging transactions permitted by the terms of the Senior Finance Documents, the Pari Passu Debt Documents, the Senior Secured Notes Finance Documents and the Second Lien Finance Documents, provided that this paragraph (a) applies only to Debtors; |
(b) | each
Hedging Agreement is based on or incorporates by reference either (i) an ISDA Master Agreement or (ii) another framework agreement which is similar in effect to an ISDA Master Agreement; |
(c) | in the event of a termination of the hedging transaction entered into under a Hedging Agreement, whether as a result of: |
(i) | a Termination Event or an Event of Default, each as defined in the relevant Hedging Agreement (in the case of a Hedging Agreement which is based on an ISDA Master Agreement); or |
(ii) | an
event similar in meaning and effect to either of those described in paragraph (i) above (in the case of a Hedging Agreement which is not based on an ISDA Master Agreement), |
(A) | if it is based on a 1992 ISDA Master Agreement, provide for payments under the “Second Method” and will make no material |
(B) | if it is based on a 2002 ISDA Master Agreement, make no material amendment to the provisions of section 6(e) (Payments on Early Termination) of the ISDA Master Agreement; or |
(C) | if it is not based on an ISDA Master Agreement, provide for any other method the effect of which is that the party to which that event is referable will be entitled to receive payment under the relevant
termination provisions if the net replacement value of all terminated transactions entered into under that Hedging Agreement is in its favour; |
(d) | each Hedging Agreement will provide that the relevant Hedge Counterparty will be entitled to designate an Early Termination Date (as defined in the relevant ISDA Master Agreement) or otherwise be able to terminate each transaction under such Hedging Agreement if so required pursuant to Clause 4.10 (Required Enforcement: Hedge Counterparties); |
(e) | each
Hedging Agreement will permit (but shall not require) the relevant Debtor to exercise its rights provided for in (and in accordance with) Clause 4.13 (Termination of Hedging); and |
(f) | each Hedging Agreement states that it is a Hedging Agreement for the purposes of this Agreement. |
4.13 | Termination of Hedging |
(a) | terminate
and cancel any Hedging Agreement upon 5 Business Days prior written notice to the relevant Hedge Counterparty (with a copy to the Security Agent), provided that there are no outstanding hedging transactions thereunder; |
(b) | terminate (in full or in part) any transaction under a Hedging Agreement with the prior written consent of the relevant Hedge Counterparty, provided that no Senior Default, Senior Secured Notes Default or Pari Passu Debt Default has occurred and is continuing at such time; and/or |
(c) | notwithstanding
(b) above, terminate in full (or in part) any transaction under a Hedging Agreement if at any time the financial indebtedness underlying such transaction has been reduced and the Debtor party to that Hedging Agreement gives notice to the relevant Hedge Counterparty specifying that there has been a reduction of financial indebtedness and the Debtor has elected to terminate the |
4.14 | No Outstanding Transactions |
4.15 | Offsetting Swaps |
4.16 | Terminations of Offsetting Swaps |
5. | GUARANTEE
AND INDEMNITY TO HEDGE COUNTERPARTIES |
5.1 | Guarantee and Indemnity |
(a) | Notwithstanding anything to the contrary in this Agreement, any guarantee, indemnity or other assurance against loss in favour of any Hedge Counterparty under this Clause 5 (Guarantee and Indemnity to Hedge Counterparties) shall only apply and take effect on and from such time as a Debtor provides a guarantee, indemnity or other assurance against loss to another Senior Secured Creditor |
(b) | Each Debtor irrevocably and unconditionally jointly and severally: |
(i) | guarantees to each Hedge Counterparty punctual performance by each other Debtor of all that Debtor’s payment obligations under the Hedging Agreements; |
(ii) | undertakes with each Hedge
Counterparty that whenever another Debtor does not pay any amount when due under or in connection with any Hedging Agreement, that Debtor shall immediately on demand pay that amount as if it was the principal obligor; and |
(iii) | agrees with each Hedge Counterparty that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Hedge Counterparty immediately on demand against any cost, loss or liability it incurs as a result of a Debtor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Hedging Agreement on the date when it would have been due. The amount payable by a Debtor under this indemnity
will not exceed the amount it would have had to pay under this Clause 5 (Guarantee and Indemnity to Hedge Counterparties) if the amount claimed had been recoverable on the basis of a guarantee. |
5.2 | Continuing guarantee |
5.3 | Reinstatement |
5.4 | Waiver of defences |
(a) | any
time, waiver or consent granted to, or composition with, any Debtor or other person; |
(b) | the release of any other Debtor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
(c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Debtor or other person or any non-presentation or non- observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security; |
(d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Debtor or any other person; |
(e) | any amendment, novation, supplement, extension restatement (however fundamental and whether or not more onerous) or replacement of a Hedging Agreement or any other document or security including, without limitation, any change in the purpose of, any extension of or increase in any amount due or the addition
of any new Hedging Liability under any Hedging Agreement or other document or security; |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under any Hedging Agreement or any other document or security; or |
(g) | any insolvency or similar proceedings. |
5.5 | Debtor Intent |
5.6 | Immediate Recourse |
5.7 | Appropriations |
(a) | refrain from applying or enforcing any other moneys, security
or rights held or received by that Hedge Counterparty (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Debtor shall be entitled to the benefit of the same; and |
(b) | hold in an interest-bearing suspense account any moneys received from any Debtor or on account of any Debtor’s liability under this Clause 5 (Guarantee and Indemnity to Hedge Counterparties). |
5.8 | Deferral
of Debtors’ Rights |
(a) | to be indemnified by a Debtor; |
(b) | to
claim any contribution from any other guarantor of any Debtor’s obligations under the Hedging Agreements; |
(c) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Hedge Counterparties under the Hedging Agreements or of any other guarantee or security taken pursuant to, or in connection with, the Hedging Agreements by any Hedge Counterparty; |
(d) | to bring legal or other proceedings for an order requiring any Debtor to make any payment, or perform any obligation, in respect of
which any Debtor has given a guarantee, undertaking or indemnity under this Clause 5 (Guarantee and Indemnity to Hedge Counterparties); |
(e) | to exercise any right of set-off against any Debtor; and/or |
(f) | to
claim or prove as a creditor of any Debtor in competition with any Hedge Counterparty. |
5.9 | Release of Debtors’ Rights of Contribution |
(a) | that Retiring Debtor is released by each other Debtor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Debtor arising by reason of the performance by any other Debtor of its obligations under the Hedging Agreements; and |
(b) | each other Debtor waives any rights it may have by reason of the performance of its obligations under the Hedging Agreements
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Hedge Counterparties under any Hedging Agreement or of any other security taken pursuant to, or in connection with, any Hedging Agreement where such rights or security are granted by or in relation to the assets of the Retiring Debtor. |
5.10 | Additional security |
5.11 | Limitation
of Liabilities of United States Guarantors |
(d) | Each
Restricted Debtor formed in the state of California waives, to the extent permitted by law, for the benefit of the Hedge Counterparties: |
(i) | any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; |
(ii) | in accordance with Section 2855 of the California Civil Code, any and all rights and defenses available to it by reason of Sections 2787 to 2855, inclusive, of the California Civil Code; |
(iii) | any
defense based upon any Hedge Counterparty’s errors or omissions in the administration of the Hedging Agreements, except behaviour that amounts to bad faith; |
(iv) | any principles or provisions of law, statutory or otherwise, that are or might be in conflict with the terms of this guarantee and any legal or equitable discharge of such Restricted Debtor’s obligations hereunder; |
(v) | the benefit of any statute of limitations affecting such Restricted Debtor’s liability hereunder or the enforcement hereof; |
(vi) | any
rights to set offs, recoupments and counterclaims; |
(vii) | other than as expressly set forth in Clause 5.1 (Guarantee and Indemnity), promptness, diligence, notices, demands, presentments, protests, notices of protest, notices of dishonour, notices of any action or inaction, including acceptance of this guarantee, notices of default under this Agreement, notices of any renewal, extension or modification of the guarantied obligations or any agreement related thereto, notices of any extension of credit to any Borrower, notices of any of the matters referred to in Clause 5.6 (Immediate Recourse) and any right to consent to any thereof; and |
(viii) | any
right to revoke such Restricted Debtor’s obligations hereunder as to future obligations. |
(e) | Notwithstanding any term or provision of this Agreement, with respect to any US Borrower, no direct or indirect CFC Subsidiary of such US Borrower, FSHCO or Subsidiary of either of the foregoing shall be required to make any payment on behalf of any US Borrower; guarantee or support the obligations of, or pledge any of its assets as security for the obligations of, any US Borrower; and no more |
5.12 | US Guarantors |
(a) | Terms used in this clause are to be construed in accordance with the Fraudulent Transfer Laws. |
(b) | Each Restricted Debtor acknowledges that: |
(i) | it
will receive valuable direct or indirect benefits as a result of the transactions financed by the Hedging Agreements; |
(ii) | those benefits will constitute reasonably equivalent value and fair consideration for the purpose of any Fraudulent Transfer Law; and |
(iii) | each Hedge Counterparty has acted in good faith in connection with the guarantee given by that Restricted Debtor and the transactions contemplated by the Hedging Agreements. |
(c) | Each
Restricted Debtor formed in the state of California acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrowers under (and as defined in) the Senior Facilities Agreement and any Second Lien Facilities Agreement (as applicable) such information concerning the financial condition, business and operations of the Borrowers under (and as defined in) the Senior Facilities Agreement and any Second Lien Facilities Agreement (as applicable) as such Restricted Debtor requires. |
(d) | Each Hedge Counterparty agrees that each Restricted Debtor’s liability under this clause is limited so that no obligation of, or transfer by, any Restricted Debtor under this Clause is subject to avoidance and turnover under
any Fraudulent Transfer Law. |
(e) | Notwithstanding anything to the contrary contained in this Agreement or any Hedging Agreement, the obligations being guaranteed by any Debtor (by express guarantee, grant of security, or otherwise) shall not include any Excluded Swap Obligations. |
5.13 | Keepwell |
(a) | Each
ECP Debtor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Debtor to honour all of its obligations under the guarantee provided pursuant to this Clause 5 (Guarantee and indemnity to Hedge Counterparties) in respect of Swap Obligations (provided, however, that each ECP Debtor shall only be liable under this Clause 5.13 (Keepwell) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Clause 5.13 (Keepwell), or otherwise under the guarantee provided pursuant to this Clause 5 (Guarantee and indemnity to Hedge Counterparties),
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, or otherwise, and not for any greater amount). The obligations of each ECP Debtor under this Clause 5.13 (Keepwell) shall remain in full force and effect until the Hedging Liabilities are discharged in full. Each ECP Debtor intends that this Clause 5.13 (Keepwell) constitutes, and this Clause 5.13 (Keepwell) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Debtor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. |
(b) | As used in this Clause 5.13
(Keepwell), “ECP Debtor” means, in respect of any Swap Obligation, each Debtor that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. |
6. | ISSUE
OF SENIOR SECURED NOTES |
(a) | The Company shall procure that no member of the Group shall enter into any Senior Secured Notes Indenture or issue any Senior Secured Notes unless such Senior Secured Notes (and the incurrence of any financial indebtedness thereunder) are permitted by this Agreement, the Senior Facilities Agreement, any other Senior Secured Notes Finance Documents, any Pari Passu Debt Documents and any Second Lien Finance Documents then outstanding. |
(b) | No
Debtor may enter into a Senior Secured Notes Indenture unless the prior written consent of the Security Agent to act as security trustee for the holders of the Senior Secured Notes thereunder has been obtained (not to be unreasonably withheld or delayed). |
7. | ENTRY INTO PARI PASSU DEBT DOCUMENTS |
(a) | No Debtor shall enter into any Pari Passu Debt Documents unless such
Pari Passu Debt Documents (and the incurrence of any financial indebtedness thereunder) are permitted by this Agreement, the Senior Facilities Agreement, any Senior Secured Notes Finance Documents, any other Pari Passu Debt Documents and any Second Lien Finance Documents then outstanding. |
(b) | No Debtor may enter into a Pari Passu Debt Document unless the prior written consent of the Security Agent to act as security trustee for the holders of the Pari Passu Debt thereunder has been obtained (not to be unreasonably withheld or delayed). |
8. | SECOND
LIEN CREDITORS AND SECOND LIEN LIABILITIES |
8.1 | Entry into Second Lien Finance Documents |
(a) | No Debtor shall enter into any Second Lien Finance Documents or incur any Second Lien Liabilities unless such Second Lien Finance Documents (and the incurrence of any financial indebtedness thereunder) are permitted by this Agreement, the Senior Facilities Agreement, any Senior Secured Notes Finance Documents, any Pari Passu Debt Documents and any other Second Lien Finance Documents then outstanding. |
(b) | No
Debtor may enter into any Second Lien Finance Document unless the prior written consent of the Security Agent to act as security trustee for the holders of the Second Lien Liabilities thereunder has been obtained (not to be unreasonably withheld or delayed). |
8.2 | Restriction on Payment: Second Lien Liabilities |
(a) | that
Payment is permitted under Clause 8.3 (Permitted Payments: Second Lien Liabilities); or |
(b) | the taking or receipt of that Payment is permitted under paragraph (b)(iii) of Clause 8.12 (Permitted Enforcement: Second Lien Creditors). |
8.3 | Permitted
Payments: Second Lien Liabilities |
(a) | Prior to the Senior Secured Discharge Date, the Debtors may only make Payments to the Second Lien Creditors in respect of the Second Lien Liabilities then due in accordance with the Second Lien Finance Documents (other than in connection with a refinancing of the Second Lien Liabilities in accordance with Clause 2.4 (Additional and/or Refinancing Debt) and/or Clause 20 (Refinancing of Primary Creditor Liabilities)): |
(i) | if
the Payment is permitted by the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents or the other Second Lien Finance Documents then outstanding; or |
(ii) | if the Payment is of any principal amount of the Second Lien Liabilities in accordance with a provision (if any) in a Second Lien Finance Document which is substantially equivalent in meaning to: |
(A) | the “Illegality” clause (or equivalent) of the Senior Facilities Agreement; |
(B) | the
“Right of Cancellation in Relation to a Defaulting Lender” clause (or equivalent) of the Senior Facilities Agreement; |
(C) | Clause 17.1 (Non-Distressed Disposals); or |
(D) | the “Replacement of a Lender” clause (or equivalent) of the Senior Facilities Agreement), |
(iii) | if
the Majority Senior Creditors, the Senior Secured Notes Representative(s) and the Pari Passu Debt Representative(s) consent to the Payment. |
(b) | On and after the Senior Secured Discharge Date, the Debtors may make Payments to the Second Lien Creditors in respect of the Second Lien Liabilities in accordance with the Second Lien Finance Documents. |
8.4 | Second Lien Payment Default and Issue of Second Lien Payment Stop Notice |
(a) | A
Second Lien Payment Stop Notice is “outstanding” during the period from the date on which, following the occurrence of a Material Event of Default, the Security Agent (acting on the instructions of the Majority Senior Secured Creditors) issues a notice (a “Second Lien Payment Stop Notice”) to the Second Lien Agent and the Second Lien Notes Trustee (with a copy to the Company) advising that a Material Event of Default has occurred and is then continuing and suspending Payments of the Second Lien Liabilities (other than those expressly permitted under Clause 8.3(a)(ii) (Permitted Payments: Second Lien Liabilities)) until the first to occur of the dates referred to in paragraph (b) below. |
(b) | If
a Senior Secured Payment Default is continuing or a Second Lien Payment Stop Notice is outstanding, Payments of the Second Lien Liabilities (other than those expressly envisaged under Clause 8.3(a)(ii) (Permitted Payments: Second Lien Liabilities)) shall be suspended until the first to occur of: |
(i) | in the case of a Second Lien Payment Stop Notice, the date which is 120 days after the date of issue of that Second Lien Payment Stop Notice; |
(ii) | in
the case of a Second Lien Payment Stop Notice, if a Second Lien Standstill Period commences after the issue of that Second Lien Payment Stop Notice, the date on which that Second Lien Standstill Period expires; |
(iii) | in the case of a Second Lien Payment Stop Notice, the date on which the Material Event of Default in respect of which that Second Lien Payment Stop Notice was issued is no longer continuing; |
(iv) | in the case of a Second Lien Payment Stop Notice, the date on which the Security Agent (acting on the instructions of the
Majority Senior Secured Creditors) cancels that Second Lien Payment Stop Notice by notice to the Second Lien Agent and the Second Lien Notes Trustee (with a copy to the Company); |
(v) | in the case of a Senior Secured Payment Default, the date on which that Senior Secured Payment Default ceases to be continuing; and |
(vi) | the Senior Secured Discharge Date. |
(c) | No
Second Lien Payment Stop Notice may be served by the Security Agent in reliance on a particular Material Event of Default more than 90 days after the Senior Agent receives a notice under the Senior Facilities Agreement, the Pari Passu Debt Representative(s) receives a notice under the Pari Passu Debt Documents and/or the Senior Secured Notes Representative(s) receives a notice under the Senior Secured Notes Finance Documents, in each case, advising of the occurrence of that Material Event of Default. |
(d) | No more than one Second Lien Payment Stop Notice may be served with respect to the same event or set of circumstances. |
(e) | No
more than one Second Lien Payment Stop Notice (ignoring any Second Lien Payment Stop Notice which ceases to be outstanding pursuant to sub-paragraph (b)(iii) above) may be served in any period of 365 days. |
8.5 | Effect of Material Event of Default or Senior Secured Payment Default |
(a) | the
occurrence of an Event of Default as a consequence of that failure to make a Payment in relation to the Second Lien Finance Documents; or |
(b) | the issue of a Second Lien Enforcement Notice on behalf of the Second Lien Creditors. |
8.6 | Payment
obligations and capitalisation of interest continue |
(a) | No Debtor shall be released from the liability to make any Payment (including of default interest, which shall continue to accrue) under any Second Lien Finance Document by the operation of Clauses 8.1 (Entry into Second Lien Finance Documents) to 8.5 (Effect of Material Event of Default or Senior Secured Payment Default) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses. |
(b) | The
accrual or capitalisation of interest (including default interest) in accordance with the Second Lien Finance Documents shall continue notwithstanding the issue of a Second Lien Payment Stop Notice. |
8.7 | Cure of payment stop: Second Lien Creditors |
(a) | at any time following the issue of a Second Lien Payment Stop Notice or the occurrence of a Senior Secured Payment Default, that Second Lien Payment Stop Notice ceases to be outstanding and/or (as the case may be) the Senior Secured Payment
Default ceases to be continuing; and |
(b) | the relevant Debtor then promptly pays to the Second Lien Creditors an amount equal to any Payments which had accrued under the Second Lien Finance Documents and which would have been Permitted Second Lien Payments but for that Second Lien Payment Stop Notice or Senior Secured Payment Default, |
8.8 | Amendments and Waivers: Second Lien Creditors |
(a) | Subject to paragraph (b) below, the Second Lien Creditors may amend or waive the terms of the Second Lien Finance Documents (other than this Agreement or any Security Document) in accordance with their terms at any time. |
(b) | Prior
to the Senior Secured Discharge Date, the Second Lien Creditors may not amend or waive the terms of the Second Lien Finance Documents without the prior consent of the Majority Senior Lenders and (to the extent not permitted by (i) the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes are outstanding or (ii) the Pari Passu Debt Documents pursuant to which |
(c) | Notwithstanding the foregoing, nothing in this Clause 8.8 (Amendments and Waivers: Second Lien Creditors) shall prevent the waiver of any breach of, or the relaxation of the terms of, any of the covenants in any Second Lien Finance Documents. |
8.9 | Designation
of Second Lien Finance Documents |
8.10 | Security and guarantees: Second Lien Creditors |
(a) | the
Common Transaction Security; |
(b) | any guarantee, indemnity or other assurance against loss contained in: |
(i) | the original form of any Second Lien Facilities Agreement provided that such guarantee is in substantially the same form as that included in the Senior Facilities Agreement; |
(ii) | this
Agreement; or |
(iii) | any Common Assurance; and |
(c) | as otherwise contemplated by Clause 3.3 (Security and guarantees: Senior Secured Creditors), |
8.11 | Restriction on enforcement: Second Lien Creditors |
8.12 | Permitted Enforcement:
Second Lien Creditors |
(a) | Each Second Lien Creditor may take Enforcement Action available to it but for Clause 8.11 (Restriction on enforcement: Second Lien Creditor) in respect of any of the Second Lien Liabilities if at the same time as, or prior to, that action: |
(i) | a Senior Acceleration Event, Senior Secured Notes Acceleration Event or Pari Passu Debt Acceleration Event has occurred, in which case each Second Lien Creditor may take the same Enforcement Action (but in respect of the
Second Lien Liabilities) as constitutes that Senior Acceleration Event, Senior Secured Notes Acceleration Event or Pari Passu Debt Acceleration Event (as applicable); |
(ii) | a Second Lien Representative has given notice (a “Second Lien Enforcement Notice”) to the Security Agent specifying that an Event of Default under any Second Lien Finance Document in respect of which it is an agent, representative or trustee has occurred and is continuing and: |
(A) | a period (a “Second
Lien Standstill Period”) of not less than: |
(1) | 90 days in the case of a failure to make a payment of an amount of principal, interest or fees representing Second Lien Liabilities; |
(2) | 120 days in the case of any Event of Default under any Second Lien Facilities Agreement substantially equivalent to clause 22.2 (Financial Ratio) of the Senior Facilities Agreement; and |
(3) | 150
days in the case of any other Second Lien Event of Default, |
(B) | that Event of Default is continuing at the end of the Second Lien Standstill Period; or |
(iii) | the
Majority Senior Lenders, the Senior Secured Notes Representative(s) and the Pari Passu Debt Representative(s) have given their prior consent. |
(b) | After the occurrence of an Insolvency Event, each Second Lien Creditor may (unless otherwise directed by the Security Agent or unless the Security Agent has taken, or has given notice that it intends to take, action on behalf of that Second Lien Creditor in accordance with Clause 13.5 (Filing of claims)) exercise any right they may otherwise have against that Debtor, member of the Group or Security Grantor to: |
(i) | accelerate
any of that Debtor, Security Grantor or member of the Group’s Second Lien Liabilities or declare them prematurely due and payable or payable on demand; |
(ii) | make a demand under any guarantee, indemnity or other assurance against loss given by that Debtor, Security Grantor or member of the Group in respect of any Second Lien Liabilities; |
(iii) | exercise any right of set–off or take or receive any Payment or claim in respect of any Second Lien Liabilities of that Debtor, Security Grantor or member of the Group; or |
(iv) | claim
and prove in the liquidation of that Debtor, Security Grantor or member of the Group for the Second Lien Liabilities owing to it. |
8.13 | Option to Purchase: Second Lien Creditors |
(a) | Subject to paragraph (b) below, the Second Lien Creditors (or any of them) (the “Purchasing Second Lien Creditors”) may: |
(i) | at
any time during a Second Lien Standstill Period; |
(ii) | at any time following a Senior Secured Payment Default which is continuing; or |
(iii) | following receipt of notice from the Security Agent that a Senior Acceleration Event, Senior Secured Notes Acceleration Event and/or Pari Passu Debt Acceleration Event has occurred, |
(A) | that transfer is lawful and, subject to paragraph (B) below, otherwise permitted by the terms of the Senior Facilities Agreement (in the case of the Senior Lender Liabilities), the Senior Secured Notes Indenture(s)
pursuant to which any Senior Secured Notes remain outstanding (in the case of Senior Secured Notes Liabilities) and the Pari Passu Debt Documents (in the case of Pari Passu Debt Liabilities); |
(B) | any conditions relating to such a transfer contained in the Senior Facilities Agreement (in the case of the Senior Lender Liabilities), any Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes remain outstanding (in the case of Senior Secured Notes Liabilities) and the Pari Passu Debt Documents (in the case of Pari Passu Debt Liabilities) are complied with, other than: |
(1) | any
requirement to obtain the consent of, or consult with, any Debtor or other member of the Group relating to such transfer, which consent or consultation shall not be required; and |
(2) | to the extent to which the Purchasing Second Lien Creditors provide cash cover for any Documentary Credit, the consent of the relevant Issuing Bank relating to such transfer; |
(C) | the Senior Agent, on behalf of the Senior Lenders, is paid an amount equal to the aggregate of: |
(1) | any
amounts provided as cash cover by the Purchasing Second Lien Creditors for any Documentary Credit (as envisaged in paragraph (B)(2) above); |
(2) | all of the Senior Lender Liabilities at that time (whether or not due), including all amounts that would have been payable under the Senior Facilities Agreement if the |
(3) | all costs and expenses (including legal fees) incurred by the Senior Agent and/or the Senior Lenders and/or the Security Agent as a consequence of giving effect to that transfer; |
(D) | the Senior Secured Notes Representative(s), on behalf of the Senior Secured Notes Creditors, are paid an amount equal to the aggregate of: |
(1) | all
of the Senior Secured Notes Liabilities at that time (whether due or not due), including all amounts that would have been payable under the Senior Secured Notes Indenture(s) if it were being redeemed (as applicable) by the relevant Debtors on the date of that payment; and |
(2) | all costs and expenses (including legal fees) incurred by the Senior Secured Notes Representative(s) and/or the Senior Secured Notes Creditors and/or the Security Agent as a consequence of giving effect to that transfer; |
(E) | the
Pari Passu Debt Representative(s), on behalf of the Pari Passu Creditors, are paid an amount equal to the aggregate of: |
(1) | all of the Pari Passu Debt Liabilities at that time (whether due or not due), including all amounts that would have been payable under the Pari Passu Debt Documents if it were being redeemed (as applicable) by the relevant Debtors on the date of that payment; and |
(2) | all costs and expenses (including legal fees) incurred by the Pari Passu Debt Representative(s) and/or the Pari Passu Creditors and/or the
Security Agent as a consequence of giving effect to that transfer; |
(F) | as a result of that transfer the Senior Lenders, the Senior Secured Notes Creditors and the Pari Passu Creditors have no further actual or contingent liability to any Debtor under the relevant Debt Documents; |
(G) | an indemnity is provided from each Purchasing Second Lien Creditor (but, for the avoidance of doubt, this does not include a |
(H) | the transfer is made without recourse
to, or representation or warranty from, the Senior Lenders, the Senior Secured Notes Creditors or the Pari Passu Creditors, except that each Senior Lender, the Senior Secured Notes Creditors and the Pari Passu Creditors shall be deemed to have represented and warranted on the date of that transfer that it has the corporate power to effect that transfer and it has taken all necessary action to authorise the making by it of that transfer; and |
(I) | the High Yield Creditors have not exercised their rights under Clause 9.15 (Option to purchase: High Yield Creditors) or, having exercised such rights, have failed to complete the acquisition of the Senior Lender Liabilities, the Senior Secured Notes Liabilities
and the Pari Passu Debt Liabilities in accordance with Clause 9.15 (Option to purchase: High Yield Creditors). |
(b) | Subject to paragraph (b) of Clause 8.14 (Hedge Transfer: Purchasing Second Lien Creditors), the Second Lien Creditors may only require a Second Lien Creditor Liabilities Transfer if, at the same time, they require a Hedge Transfer in accordance with Clause 8.14 (Hedge Transfer: Purchasing Second Lien Creditors) and if, for any reason, a Hedge Transfer cannot be made in accordance with Clause 8.14 (Hedge Transfer: Purchasing Second Lien Creditors), no Second
Lien Creditor Liabilities Transfer may be required to be made. |
(c) | The Senior Agent shall, at the request of the Purchasing Second Lien Creditors (acting as a whole) notify the Purchasing Second Lien Creditors of: |
(i) | the sum of the amounts described in paragraphs (C)(2) and (3) of paragraph (a) above; and |
(ii) | the
amount of each Documentary Credit for which cash cover is to be provided by all the Purchasing Second Lien Creditors (acting as a whole). |
(d) | The Senior Secured Notes Representative(s) shall, at the request of the Purchasing Second Lien Creditors, notify the Purchasing Second Lien Creditors of the sum of amounts described in paragraph (a)(iii)(D) of this Clause. |
(e) | The Pari Passu Debt Representative(s) shall, at the request of the Purchasing Second Lien Creditors, notify the Purchasing Second Lien Creditors of the sum of amounts
described in paragraph (a)(iii)(E) of this Clause. |
8.14 | Hedge Transfer: Purchasing Second Lien Creditors |
(a) | The Purchasing Second Lien Creditors (acting as a whole) may, by giving not less than ten days’ notice to the Security Agent, require a Hedge Transfer if, either: |
(i) | the Purchasing Second Lien Creditors
require, at the same time, a transfer of Senior Lender Liabilities, the Senior Secured Notes Liabilities and the Pari Passu Debt Liabilities under Clause 8.13 (Option to Purchase: Second Lien Creditors); or |
(ii) | the Purchasing Second Lien Creditors require that Hedge Transfer at any time on or after the Senior Secured Discharge Date, |
(A) | that transfer is lawful and otherwise permitted by the terms of the
Hedging Agreements in which case no Debtor or other member of the Group shall be entitled to withhold its consent to that transfer; |
(B) | any conditions (other than the consent of, or any consultation with, any Debtor or other member of the Group) relating to that transfer contained in the Hedging Agreements are complied with; |
(C) | each Hedge Counterparty is paid (in the case of a positive number) or pays (in the case of a negative number) an amount equal to the aggregate of (i) the Hedging Purchase Amount in respect of the hedging
transactions under the relevant Hedging Agreement at that time and (ii) all costs and expenses (including legal fees) incurred as a consequence of giving effect to that transfer; |
(D) | as a result of that transfer, the Hedge Counterparties have no further actual or contingent liability to any Debtor under the Hedging Agreements; |
(E) | an
indemnity is provided from each Purchasing Second Lien Creditor (but for the avoidance of doubt this does not include a Second Lien Representative) or from another third party acceptable to the relevant Hedge Counterparty in a form satisfactory to the relevant Hedge Counterparty in respect of all losses which may be sustained or incurred by that Hedge Counterparty in consequence of any sum received or recovered by that Hedge Counterparty being required (or it being alleged that it is required) to be paid back by or clawed back from the Hedge Counterparty for any reason; |
(F) | that transfer is made without recourse to, or representation or warranty from, the relevant Hedge Counterparty, except that the relevant Hedge Counterparty shall be deemed to
have represented and warranted on the date of that transfer that it has the corporate power to effect that transfer and it has taken all necessary action to authorise the making by it of that transfer; and |
(G) | the High Yield Creditors have not exercised their rights under Clause 9.16 (Hedge Transfer: High Yield Creditors) or, having exercised such rights, have failed to complete the Hedge Transfer concerned in accordance with Clause 9.16 (Hedge Transfer: High Yield Creditors). |
(b) | All
the Purchasing Second Lien Creditors (acting as a whole) and any Hedge Counterparty may agree (in respect of the Hedging Agreements (or one or more of them) to which that Hedge Counterparty is a party) that a Hedge Transfer required by all the Purchasing Second Lien Creditors (acting as a whole) pursuant to paragraph (a) above shall not apply to that Hedging Agreement(s) or to the Hedging Liabilities and Hedge Counterparty Obligations under that Hedging Agreement(s). |
(c) | If the Purchasing Second Lien Creditors are entitled to require a Hedge Transfer under this Clause 8.14 (Hedge Transfer: Purchasing Second Lien Creditors), the Hedge Counterparties shall at the request of the Second Lien Representative(s)
provide details of the amounts referred to in paragraph (a)(ii)(C) above. |
9. | HIGH YIELD CREDITORS AND HIGH YIELD LIABILITIES |
9.1 | Issue of High Yield Notes and borrowing of High Yield Loans |
(a) | the Security Agent receives copies of the High Yield Finance Documents as soon as practicable after the relevant High Yield Notes are issued or a High Yield Facilities Agreement is entered into (as applicable); |
(b) | the terms of the High Yield Finance Documents comply with the requirements of the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, any Pari Passu Debt Documents, any Second Lien Facilities Agreements and any Second Lien Notes Finance Documents or are otherwise approved by the Majority
Senior Lenders, the Majority Second Lien Lenders and/or the Second Lien Notes Trustee (as applicable) and (to the extent not permitted by the terms of (i) any Senior Secured Notes Indenture(s) or (ii) any Pari Passu Debt Documents) the relevant Senior Secured Notes Representative(s) and/or the relevant Pari Passu Debt Representative(s) (as applicable); |
(c) | the High Yield Guarantees comply with the provisions of this Agreement, the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, any Pari Passu Debt Documents, any Second Lien Facilities Agreements and any Second Lien Notes Finance Documents or are otherwise approved by the Majority Senior
Lenders, the Majority Second Lien Lenders and/or the Second Lien Notes Trustee (as applicable) and (to the extent not permitted by the terms of (i) any Senior Secured Notes Indenture(s) or (ii) any Pari Passu Debt Documents) the relevant Senior Secured Notes Representative(s) and/or the relevant Pari Passu Debt Representative(s) (as applicable); |
(d) | the HY Issuer and the High Yield Notes Trustee or the HY Borrower, the High Yield Agent and any High Yield Lender (as applicable) and each of the High Yield Guarantors execute this Agreement or sign a Debtor/Security Grantor Accession Deed (or Creditor Accession Undertaking, as applicable) before or concurrently with
the issuance of the High Yield Notes or the borrowing of the High Yield Facilities, as applicable; and |
(e) | prior to the later of the Senior Secured Discharge Date and the Second Lien Discharge Date, such issue of High Yield Notes or borrowing of High Yield Facilities and the application of the proceeds thereof is not otherwise in breach |
9.2 | Restriction on Payment and dealings: High Yield Liabilities |
(a) | pay,
repay, prepay, redeem, acquire or defease any principal, interest or other amount on or in respect of, or make any distribution in respect of, any High Yield Liabilities in cash or in kind or apply any such money or property in or towards discharge of any High Yield Liabilities except as permitted by Clause 9.3 (Permitted Payments: High Yield Liabilities), Clause 9.11 (Permitted Enforcement: High Yield Finance Parties), Clause 13.5 (Filing of claims) or Clause 20.3 (High Yield Liabilities Refinancing); |
(b) | exercise any set-off against any High Yield Liabilities, except
as permitted by Clause 9.3 (Permitted Payments: High Yield Liabilities), Clause 9.11 (Restrictions on Enforcement: High Yield Finance Parties) or Clause 13.5 (Filing of claims); or |
(c) | create or permit to subsist any Security over any assets of any Debtor or member of the Group or give any guarantee, indemnity or other assurance against loss (and the High Yield Representative(s) may not and no High Yield Creditor may, accept the benefit of any such Security or guarantee, indemnity or other assurance against loss) from any Debtor or member of the Group for, or in respect of, any High Yield Liabilities other than the
High Yield Guarantees. |
9.3 | Permitted Payments: High Yield Liabilities |
(a) | prior
to the later of the Senior Secured Discharge Date and the Second Lien Discharge Date, make Payments to the High Yield Creditors in respect of the High Yield Liabilities then due in accordance with the High Yield Finance Documents if the Payment is permitted by the Senior Facilities Agreement, the Senior Secured Notes Indenture(s), the Pari Passu Debt Documents and any Second Lien Finance Documents; and |
(b) | on or after the later of the Senior Secured Discharge Date and the Second Lien Discharge Date, make Payments to the High Yield Creditors in respect of the High Yield Liabilities in accordance with the High Yield Finance Documents. |
9.4 | Issue
of High Yield Payment Stop Notice |
(a) | Until the later of the Senior Secured Discharge Date and the Second Lien Discharge Date, except with the prior Consent of the Senior Agent under the Senior Facilities Agreement, (to the extent not permitted by the relevant Senior Secured Notes Finance Document pursuant to which any Senior Secured Notes are outstanding) with the prior Consent of the relevant Senior Secured Notes Representative(s) under such Senior Secured Notes Finance Documents, (to the extent not permitted by the relevant Pari Passu Debt Documents pursuant to which any Pari Passu Debt is outstanding) with the prior Consent of the relevant Pari Passu Debt Representative(s), (to the extent not permitted by the terms of any Second Lien Facilities
Agreement) with the prior Consent of the Second Lien Agent under that Second Lien Facilities Agreement and (to the extent not permitted by the terms of any Second Lien Notes Finance Document) with the prior consent of the Second Lien Notes Trustee under such Second Lien Notes Finance Document, and subject to Clause 13 (Effect of Insolvency Event), no Debtor or member of the Group may make, and no High Yield Finance Party may receive from any Debtor or member of the Group, any Permitted High Yield Payment (other than High Yield Notes Trustee Amounts and High Yield Agent Liabilities) if: |
(i) | a Senior Secured Payment Default and/or a Second Lien Payment Default is continuing; or |
(ii) | a
Senior Secured Event of Default (other than a Senior Secured Payment Default) and/or a Second Lien Event of Default (other than a Second Lien Payment Default) is continuing, from the date which is one Business Day after the date on which the Senior Agent, the Senior Secured Notes Representative(s), the Second Lien Agent(s), the Second Lien Notes Trustee(s) or the Pari Passu Debt Representative(s) (as the case may be) delivers a notice (a “High Yield Payment Stop Notice”) specifying the |
(A) | the date falling 179 days after delivery of that High Yield Payment Stop Notice; |
(B) | in relation to payments of High Yield Liabilities, if a High Yield Standstill Period is in effect at any time after delivery of that High Yield Payment Stop Notice, the
date on which that High Yield Standstill Period expires; |
(C) | the date on which the relevant Senior Secured Event of Default and/or Second Lien Event of Default in respect of which that High Yield Payment Stop Notice was delivered is no longer continuing; |
(D) | the date on which the Senior Agent, the Second Lien Agent, the Second Lien Notes Trustee, the Pari Passu Debt Representative(s) and the Senior Secured Notes Representative(s) which delivered the relevant High Yield Payment Stop Notice delivers a notice to the HY Issuer, the
HY Borrower, the Security Agent and the High Yield Representatives(s) (as applicable) (with a copy to the Company) cancelling that High Yield Payment Stop Notice; |
(E) | the Senior Secured Discharge Date (in the case of a Senior Secured Event of Default) or the Second Lien Discharge Date (in the case of a Second Lien Event of Default); and |
(F) | in the case of a Senior Secured Payment Default or a Second Lien Payment Default, the date on which
that Senior Secured Payment Default or Second Lien Payment Default (as applicable) ceases to be continuing. |
(b) | Unless the High Yield Representative(s) waive this requirement: |
(i) | a new High Yield Payment Stop Notice may not be delivered unless and until 360 days have elapsed since the delivery of the immediately prior High Yield Payment Stop Notice; |
(ii) | no
High Yield Payment Stop Notice may be delivered in reliance on a Senior Secured Event of Default more than 45 days after the date the Senior Agent, each Senior Secured Notes Representative and each Pari |
(iii) | no High Yield Payment Stop Notice may be delivered in reliance on a Second Lien Event of Default
more than 45 days after the date the relevant Second Lien Representative received notice of that Second Lien Event of Default. |
(c) | The Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s) and the Second Lien Representative(s) may only serve one High Yield Payment Stop Notice with respect to the same event or set of circumstances. Subject to paragraph (b) above, this shall not affect the right of the Senior Agent or the Senior Secured Notes Representative(s) or the Pari Passu Debt Representative(s), and the Second Lien Representative(s) to issue a High Yield Payment Stop Notice in respect of any other event or set of circumstances. |
(d) | No
High Yield Payment Stop Notice may be served by a Senior Agent, a Senior Secured Notes Representative or a Pari Passu Debt Representative(s) in respect of a Senior Secured Event of Default which had been notified to the Senior Agent, the Senior Secured Notes Representative(s) and the Pari Passu Debt Representative(s) at the time at which an earlier High Yield Payment Stop Notice was issued. |
(e) | No High Yield Payment Stop Notice may be served by a Second Lien Representative in respect of a Second Lien Event of Default which had been notified to that Second Lien Representative at the time at which an earlier High Yield Payment Stop Notice was issued. |
(f) | For
the avoidance of doubt, this Clause 9.4 (Issue of High Yield Payment Stop Notice): |
(i) | will not prevent the payment of any High Yield Notes Trustee Amounts or High Yield Agent Liabilities; and |
(ii) | will not prevent the payment of audit fees, directors’ fees, taxes and other proper and incidental expenses required to maintain existence. |
9.5 | Effect
of High Yield Payment Stop Notice, Senior Secured Payment Default or Second Lien Payment Default |
(a) | the occurrence of an Event of Default as a consequence
of that failure to make a Payment in relation to the relevant High Yield Finance Document; or |
(b) | the issue of a High Yield Enforcement Notice on behalf of the High Yield Creditors. |
9.6 | Payment obligations and capitalisation of interest continue |
(a) | No Debtor shall be released from the liability to make any Payment
(including of default interest, which shall continue to accrue) under any High Yield Finance Document by the operation of Clauses 9.2 (Restriction on Payment and dealings: High Yield Liabilities) to and including 9.5 (Effect of High Yield Payment Stop Notice, Senior Secured Payment Default or Second Lien Payment Default) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses. |
(b) | The accrual or capitalisation of interest (including default interest) (if any) in accordance with the High Yield Finance Documents shall continue notwithstanding the issue of a High Yield Payment Stop Notice. |
9.7 | Cure
of Payment Stop: High Yield Creditors |
(a) | at any time following the issue of a High Yield Payment Stop Notice or the occurrence of a Senior Secured Payment Default and/or a Second Lien Payment Default, that High Yield Payment Stop Notice ceases to be outstanding and/or (as the case may be) the Senior Secured Payment Default or Second Lien Payment Default ceases to be continuing; and |
(b) | the relevant Debtor then promptly pays to the High Yield Creditors an amount equal to any Payments
which had accrued under the High Yield Finance Documents and which would have been Permitted High Yield Payments but for that High Yield Payment Stop Notice or Senior Secured Payment Default and/or a Second Lien Payment Default, |
9.8 | Amendments and Waivers: High Yield Creditors |
(a) | Subject
to paragraph (b) below, the High Yield Creditors may amend or waive the terms of the High Yield Finance Documents (other than this Agreement) in accordance with their terms at any time. |
(b) | Prior to the later of the Senior Secured Discharge Date and the Second Lien Discharge Date, the High Yield Finance Parties may not, without the Consent of the Majority Senior Lenders, the Majority Second Lien Lenders, (to the extent otherwise not permitted by the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes are outstanding) the relevant Senior Secured Notes Representative(s), (to the extent otherwise not permitted by the Second Lien Notes Indenture(s)
pursuant to which any Second Lien Notes are outstanding) the relevant Second Lien Representative(s), (to the extent otherwise not permitted by the Pari Passu Debt pursuant to which any Pari Passu Debt is outstanding) the Pari Passu Debt Representative(s) amend or waive the terms of the High Yield Finance Documents if the amendment or waiver would result in the High Yield Finance Documents not being in compliance with the terms of the Senior Facilities Agreement, any Second Lien Facilities Agreement, the Second Lien Notes Indenture(s), the Senior Secured Notes Indenture(s) and/or the Pari Passu Debt Documents or the High Yield Finance Documents being inconsistent in any material respect with the High Yield Major Terms. |
9.9 | Designation
of High Yield Finance Documents |
9.10 | Restrictions on enforcement: High Yield
Finance Parties |
9.11 | Permitted Enforcement: High Yield Finance Parties |
(a) | Subject to Clause 9.14 (Enforcement on behalf of High Yield Finance Parties), the restrictions in Clause 9.10 (Restrictions on enforcement: High Yield Finance Parties) will not apply in respect of
the High Yield Notes Liabilities of a HY Issuer that is a member of the Group, the High Yield Loan Liabilities of a HY Borrower that is a member of the Group, the High Yield Guarantee Liabilities or any Proceeds Loan, if: |
(i) | a High Yield Default (other than solely by reason of a cross-default (other than a cross-default arising from a Senior Secured Payment Default) arising from a Senior Secured Event of Default) (the “Relevant High Yield Default”) is continuing; |
(ii) | the Senior Agent,
the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s) and the Second Lien Representative(s) have received a written notice of the Relevant High Yield Default specifying the event or circumstance in relation to the Relevant High Yield Default from the relevant High Yield Representative; |
(iii) | a High Yield Standstill Period has elapsed or otherwise terminated; and |
(iv) | the Relevant High Yield Default is continuing at the end of the relevant High Yield Standstill Period. |
(b) | Promptly
upon becoming aware of a High Yield Default, the relevant High Yield Representative(s) may by notice (a “High Yield Enforcement Notice”) in writing notify the Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s) and the Second Lien Representative(s) of the existence of such High Yield Default. |
9.12 | High Yield Standstill Period |
(a) | the date falling 179 days after the High Yield Standstill Start Date (the “High Yield Standstill Period”); |
(b) | the
date the Senior Secured Creditors and/or the Second Lien Finance Parties (as applicable) take any Enforcement Action in relation to a particular High Yield Guarantor (or HY Issuer or HY Borrower that is a member of the Group) provided, however, that: |
(i) | if a High Yield Standstill Period ends pursuant to this paragraph (b), the High Yield Finance Parties may only take the same Enforcement Action in relation to the High Yield Guarantor (or HY Issuer or HY Borrower that is a member of the Group) as the Enforcement Action taken by the Senior Secured Creditors and/or the Second Lien Finance Parties (as applicable) against such High Yield Guarantor (or HY Issuer or HY Borrower that is a member of the Group) and not against any other Debtor or member of
the Group; and |
(ii) | Enforcement Action for the purpose of this paragraph (b) shall not include action taken to preserve or protect any Security as opposed to realise it; |
(c) | the date of an Insolvency Event (other than as a result of any action taken by any High Yield Finance Party) in relation to a particular High Yield Guarantor (or HY Issuer or HY Borrower that is a member of the Group) against whom Enforcement Action is to be taken; |
(d) | the
expiry of any other High Yield Standstill Period outstanding at the date such first mentioned High Yield Standstill Period commenced (unless that expiry occurs as a result of a cure, waiver or other permitted remedy); |
(e) | the date on which the Majority Senior Lenders, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), the Majority Second Lien Lenders and the Second Lien Notes Trustee(s) give their consent to the termination of the relevant High Yield Standstill Period; and |
(f) | a failure to pay the
principal amount outstanding on the High Yield Notes or, as applicable, the High Yield Facilities at the final stated maturity of those High Yield Notes or High Yield Facilities. |
9.13 | Subsequent High Yield Defaults |
9.14 | Enforcement on behalf of High Yield Finance Parties |
9.15 | Option to purchase: High Yield Creditors |
(a) | Subject
to paragraphs (b) and (c) below, the High Yield Representative(s) (on behalf of one or more High Yield Creditors (the “Purchasing High Yield Creditors”)) may after a Distress Event (other than a Distress Event that is a High Yield Acceleration Event only), by giving not less than ten days’ notice to the Security Agent, require the transfer to the High Yield Creditors (or to a nominee or nominees), in accordance with Clause 23.3 (Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders), of all, but not part, of the rights, benefits and obligations in respect of the Senior Lender Liabilities, the Senior Secured Notes Liabilities, the Pari Passu Debt Liabilities and the Second Lien Liabilities if: |
(i) | that
transfer is lawful and subject to paragraph (ii) below, otherwise permitted by the terms of the Senior Facilities Agreement (in the case of the Senior Lender Liabilities), the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes remain outstanding (in the case of the Senior Secured Notes Liabilities), the Pari Passu Debt Documents (in the case of the Pari Passu Debt Liabilities), the Second Lien Notes Indenture(s) pursuant to which any Second Lien Notes remain outstanding (in the case of the Second Lien Notes Liabilities) and any |
(ii) | any conditions relating to such a transfer contained in the Senior Facilities Agreement (in the case of the Senior Lender Liabilities), the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes remain outstanding (in the case of the Senior Secured Notes Liabilities), the Pari Passu Debt Documents (in the case of the Pari Passu Debt Liabilities), the Second Lien Notes Indenture(s) pursuant to which any Second Lien Notes remain outstanding (in the case of the Second Lien Notes Liabilities),
and any Second Lien Facilities Agreement (in the case of the Second Lien Loan Liabilities) are complied with, other than: |
(A) | any requirement to obtain the Consent of, or consult with, any Debtor or any member of the Group relating to such transfer, which Consent or consultation shall not be required; and |
(B) | to the extent to which all the High Yield Creditors (acting as a whole) provide cash cover for any Documentary Credit, the Consent of the relevant Issuing Bank relating to such transfer; |
(iii) | (A) the
Senior Agent, on behalf of the Senior Lenders, is paid an amount equal to the aggregate of: |
(1) | any amounts provided as cash cover by the High Yield Noteholders for any Documentary Credit (as envisaged in paragraph (ii)(B) above); |
(2) | all of the Senior Liabilities (other than the Hedging Liabilities) at that time (whether or not due), including all amounts that would have been payable under the Senior Facilities Agreement if the Senior Facilities were being prepaid by the relevant Debtors on the date of that payment; and |
(3) | all
costs and expenses (including legal fees) incurred by the Senior Agent and/or the Senior Lenders and/or the Security Agent as a consequence of giving effect to that transfer; |
(B) | the Senior Secured Notes Representative(s), on behalf of the Senior Secured Notes Creditors, are paid an amount equal to the aggregate of: |
(1) | all
of the Senior Secured Notes Liabilities at that time (whether due or not due), including all amounts that would have been payable under the Senior Secured Notes Indenture(s) if it were being redeemed (as applicable) by the relevant Debtors on the date of that payment; and |
(2) | all costs and expenses (including legal fees) incurred by the Senior Secured Notes Representative(s) and/or the Senior Secured Notes Creditors and/or the Security Agent as a consequence of giving effect to that transfer; |
(C) | the
Pari Passu Debt Representative(s), on behalf of the Pari Passu Creditors, are paid an amount equal to the aggregate of: |
(1) | all of the Pari Passu Debt Liabilities at that time (whether due or not due), including all amounts that would have been payable under the Pari Passu Debt Document(s) if it were being redeemed (as applicable) by the relevant Debtors on the date of that payment; and |
(2) | all costs and expenses (including legal fees) incurred by the Pari Passu Debt Representative(s) and/or the Pari Passu Creditors and/or the
Security Agent as a consequence of giving effect to that transfer; |
(D) | the Second Lien Agent, on behalf of the Second Lien Lenders, is paid an amount equal to the aggregate of: |
(1) | all of the Second Lien Loan Liabilities at that time (whether or not due), including all amounts that would have been payable under any Second Lien Facilities Agreement if the Second Lien Facilities were being prepaid by the relevant Debtors on the date of that payment; and |
(2) | all
costs and expenses (including legal fees) incurred by the Second Lien Agent and/or the Second Lien Lenders and/or the Security Agent as a consequence of giving effect to that transfer; and |
(E) | the Second Lien Notes Trustee, on behalf of the Second Lien Noteholders, is paid an amount equal to the aggregate of: |
(1) | all
of the Second Lien Notes Liabilities at that time (whether or not due), including all amounts that would have been payable under the Second Lien Notes Indenture(s) if it were being redeemed (as applicable) by the relevant Debtors on the date of that payment; and |
(2) | all costs and expenses (including legal fees) incurred by the Second Lien Notes Trustee and/or the Second Lien Notes Creditors and/or the Security Agent as a consequence of giving effect to that transfer; |
(iv) | as
a result of that transfer the Senior Lenders, the Senior Secured Notes Creditors, the Pari Passu Creditors, the Second Lien Notes Creditors and the Second Lien Lenders have no further actual or contingent liability to any Debtor under the relevant Debt Documents; |
(v) | an indemnity is provided from each Purchasing High Yield Creditor (but, for the avoidance of doubt, this does not include a High Yield Representative) (or from another third party acceptable to all the Senior Lenders, the Senior Secured Notes Creditors, the Pari Passu Creditors, the Second Lien Notes Creditors and the Second Lien Lenders) in a form reasonably satisfactory to each Senior Lender, Senior Secured Notes Creditor, Pari Passu Creditor, Second Lien Notes Creditor and Second Lien
Lender in respect of all losses which may be sustained or incurred by any Senior Lender, Senior Secured Notes Creditor, Pari Passu Creditor, Second Lien Notes Creditor or Second Lien Lender in consequence of any sum received or recovered by any Senior Lender, Senior Secured Notes Creditor, Pari Passu Creditor, Second Lien Notes Creditor or Second Lien Lender from any person being required (or it being alleged that it is required) to be paid back by or clawed back from any Senior Lender, Senior Secured Notes Creditor, Pari Passu Creditor, Second Lien Notes Creditor or Second Lien Lender for any reason; and |
(vi) | the transfer is made without recourse to, or representation or warranty from, the Senior Lenders, the Senior Secured Notes Creditors, the Pari
Passu Creditors, the Second Lien Notes Creditors or the Second Lien Lenders, except that each Senior Lender, Senior Secured Notes Creditor, Pari Passu Creditor, Second Lien Notes Creditor and Second Lien Lender shall be deemed to have represented and warranted on the date of that transfer that it has the corporate power to effect that transfer and it has taken all necessary action to authorise the making by it of that transfer. |
(b) | Subject to
paragraph (b) of Clause 9.16 (Hedge Transfer: High Yield Creditors), the High Yield Representatives (on behalf of all the High Yield Creditors) may only require a Senior Secured Creditor Liabilities Transfer and a Second Lien Creditor Liabilities Transfer if, at the same time, they require a Hedge Transfer in accordance with Clause 9.16 (Hedge Transfer: High Yield Creditors) and if, for any reason, a Hedge Transfer cannot be made in accordance with Clause 9.16 (Hedge Transfer: High Yield Creditors), no Senior Secured Creditor Liabilities Transfer or Second Lien Creditor Liabilities Transfer may be required to be made. |
(c) | At
the request of the High Yield Representative(s) (on behalf of all the High Yield Creditors): |
(i) | the Senior Agent shall notify the High Yield Creditors of: |
(A) | the sum of the amounts described in paragraphs 9.15(a)(iii)(A)(2) and (3); and |
(B) | the amount of each Documentary Credit for which cash cover is to
be provided by all the High Yield Creditors (acting as a whole); |
(ii) | the Senior Secured Notes Representative(s) shall notify the High Yield Creditors of the sum of amounts described in paragraph 9.15(a)(iii)(B); |
(iii) | the Pari Passu Debt Representative(s) shall notify the High Yield Creditors of the sum of amounts described in paragraph 9.15(a)(iii)(C); and |
(iv) | the
relevant Second Lien Representative shall notify the High Yield Creditors of: |
(A) | the sum of the amounts described in paragraph 9.15(a)(iii)(D) above; and |
(B) | the sum of the amounts described in paragraph 9.15(a)(iii)(E) above. |
9.16 | Hedge Transfer: High Yield Creditors |
(a) | The
High Yield Representative(s) (on behalf of one or more High Yield Creditors, acting as a whole) may, by giving not less than ten days’ notice to the Security Agent, require a Hedge Transfer: |
(i) | if either: |
(A) | the relevant High Yield Creditors require, at the same time, a Senior Secured Creditor Liabilities Transfer and a Second Lien |
(B) | the relevant High Yield Creditors (acting as a whole) require that Hedge Transfer at any time on or after the later of the Senior Secured Discharge Date and the Second Lien Discharge Date; and |
(ii) | if: |
(A) | that
transfer is lawful and otherwise permitted by the terms of the Hedging Agreements in which case no Debtor or member of the Group shall be entitled to withhold its Consent to that transfer; |
(B) | any conditions (other than the Consent of, or any consultation with, any Debtor or member of the Group) relating to that transfer contained in the Hedging Agreements are complied with; |
(C) | each Hedge Counterparty is paid (in the case of a positive number) or pays (in the case of a negative number) an amount equal to the aggregate of (I)
the Hedging Purchase Amount in respect of the hedging transactions under the relevant Hedging Agreement at that time and (II) all costs and expenses (including legal fees) incurred by such Hedge Counterparty as a consequence of giving effect to that transfer; |
(D) | as a result of that transfer, the Hedge Counterparties have no further actual or contingent liability to any Debtor under the Hedging Agreements; |
(E) | an indemnity is provided from each High Yield Creditor (but for the avoidance of doubt this does not include a High Yield
Representative) which is receiving (or for which a nominee is receiving) that transfer (or from another third party acceptable to the relevant Hedge Counterparty) in a form reasonably satisfactory to the relevant Hedge Counterparty in respect of all losses which may be sustained or incurred by that Hedge Counterparty in consequence of any sum received or recovered by that Hedge Counterparty being required (or it being alleged that it is required) to be paid back by or clawed back from the Hedge Counterparty for any reason; and |
(F) | that transfer is made without recourse to, or representation or warranty from, the relevant Hedge Counterparty, except that the |
(b) | The High Yield Representative(s) (acting on behalf of the relevant High Yield Creditors,) and any Hedge Counterparty may agree (in respect of the Hedging Agreements (or one or more of them) to which that Hedge Counterparty is a party) that a Hedge Transfer required by any High Yield Creditors pursuant to paragraph (a) above shall not apply to that Hedging Agreement(s) or to the Hedging Liabilities and Hedge Counterparty Obligations under that Hedging Agreement(s). |
(c) | If
the High Yield Representative(s) are entitled to require a Hedge Transfer under this Clause 9.16 (Hedge Transfer: High Yield Creditors), the Hedge Counterparties shall at the request of the High Yield Representative(s) provide details of the amounts referred to in paragraph (a)(ii)(C) above. |
10. | UNSECURED CREDITORS AND UNSECURED LIABILITIES |
10.1 | Issue of Unsecured Notes and borrowing of Unsecured Loans |
(a) | the terms of the Unsecured Finance Documents comply with the requirements of the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, any Pari Passu Debt Documents, any Second Lien Facilities Agreements, any Second Lien Notes Finance Documents, any High Yield Facilities Agreement and any High Yield Notes Finance Documents or are otherwise approved by the Majority Senior Lenders, the Majority Second Lien Lenders, the Second Lien Notes Trustee, the Majority High Yield Lenders and/or the High Yield Notes Trustee (as applicable) and (to the extent not permitted by the terms of (i) the Senior Secured Notes Indenture(s)
or (ii) the Pari Passu Debt Documents) the Senior Secured Notes Representative(s) and/or the Pari Passu Debt Representative(s) (as applicable); |
(b) | the Unsecured Guarantees comply with the provisions of this Agreement, the Senior Facilities Agreement, the Senior Secured Notes Finance Documents, any Pari Passu Debt Documents, any Second Lien Facilities Agreement, any Second Lien Notes Finance Documents, any High Yield Facilities Agreement and any
High Yield Notes Finance Documents or are otherwise approved by the Majority Senior Lenders, the Majority Second Lien Lenders, the Second Lien Notes Trustee, the Majority High Yield Lenders and/or the High Yield Notes Trustee (as applicable) and (to the extent not permitted by the terms of (i) the Senior Secured Notes Indenture(s) or (ii) the Pari Passu Debt Documents) the Senior Secured Notes Representative(s) and/or the Pari Passu Debt Representative(s) (as applicable); |
(c) | the Unsecured Issuer, the Unsecured Notes Trustee, the Unsecured Borrower, the Unsecured Agent, any Unsecured Lender and each of the Unsecured Guarantors execute this Agreement or sign a
Debtor/Security Grantor Accession Deed (or Creditor Accession Undertaking, as applicable) before or concurrently with the issuance of the Unsecured Notes or the borrowing of the Unsecured Facilities; and |
(d) | prior to the latest of Senior Secured Discharge Date, the Second Lien Discharge Date and the High Yield Discharge Date, such issue of Unsecured Notes or borrowing of Unsecured Facilities and the application of the proceeds thereof is not otherwise in breach of the terms of the Senior Facilities Agreement, any Pari Passu Debt Document, any Senior Secured Notes Indenture, any Second Lien Facilities Agreement, any Second Lien Notes Finance Documents, any High
Yield Facilities Agreement or any High Yield Notes Finance Document and their terms are not inconsistent in any material respects with the Unsecured Major Terms. |
10.2 | Permitted Unsecured Payments |
10.3 | Restriction
on Payment and dealings during Unsecured Standstill Period: Unsecured Liabilities |
(a) | pay,
repay, prepay, redeem, acquire or defease any principal, interest or other amount on or in respect of, or make any distribution in respect of, any Unsecured Liabilities in cash or in kind or apply any such money or property in or towards discharge of any Unsecured Liabilities (except as permitted by Clause 13.5 (Filing of claims) and Clause 10.7 (Permitted Enforcement: Unsecured Finance Parties)); |
(b) | exercise any set-off against any Unsecured Liabilities (except as permitted by Clause 13.5 (Filing of claims) and Clause 10.7 (Permitted Enforcement: Unsecured Finance Parties));
or |
(c) | give any guarantee, indemnity or other assurance against loss (and the Unsecured Representative(s) may not and no Unsecured Creditor may, accept the benefit of any such guarantee, indemnity or other assurance against loss) from any Debtor or member of the Group for, or in respect of, any Unsecured Liabilities other than the Unsecured Guarantees. |
10.4 | Amendments and Waivers: Unsecured Creditors |
(a) | Subject
to paragraph (b) below, the Unsecured Creditors may amend or waive the terms of the Unsecured Finance Documents (other than this Agreement) in accordance with their terms at any time. |
(b) | Prior to the latest of the Senior Secured Discharge Date, the Second Lien Discharge Date and the High Yield Discharge Date, the Unsecured Finance Parties may not, without the Consent of the Majority Senior Lenders, the Majority Second Lien Lenders, the Majority High Yield Lenders, (to the extent not permitted by the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes are outstanding) the relevant Senior Secured Notes Representative(s), (to the extent
not permitted by the Second Lien Notes Indenture(s) pursuant to which any Second Lien Notes are outstanding) the relevant Second Lien Representative(s), (to the extent not permitted by the High Yield Notes Indenture(s) pursuant to which any High Yield Notes are outstanding) the relevant High Yield Representative(s), (to the extent not permitted by the Pari Passu Debt pursuant to which any Pari Passu Debt is outstanding) the Pari Passu Debt Representative(s) amend or waive the terms of the Unsecured Finance Documents if the amendment or waiver would result in the Unsecured Finance Documents not being in compliance with the terms of the Senior Facilities Agreement, any Second Lien Facilities Agreement, the Second Lien Notes Indenture(s),
any High Yield Facilities Agreement, the High Yield Notes Indenture(s), the Senior Secured Notes Indenture(s) and/or the Pari Passu Debt Documents or the Unsecured Finance Documents being inconsistent in any material respect with the Unsecured Major Terms. |
10.5 | Designation
of Unsecured Finance Documents |
10.6 | Restrictions on enforcement: Unsecured Finance Parties |
10.7 | Permitted Enforcement: Unsecured Finance Parties |
(a) | The restrictions in Clause 10.6 (Restrictions on enforcement: Unsecured Finance Parties) will not apply in respect of the Unsecured
Notes Liabilities of an Unsecured Issuer that is a member of the Group, the Unsecured Loan Liabilities of an Unsecured Borrower that is a member of the Group or the Unsecured Guarantee Liabilities, if: |
(i) | an Unsecured Default (other than solely by reason of a cross-default (other than a cross-default arising from a Senior Secured Payment Default) arising from a Senior Secured Event of Default) (the “Relevant Unsecured Default”)
is continuing; |
(ii) | the Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), the Second Lien Representative(s) and the High Yield Representative(s) have received a written notice of the Relevant Unsecured Default specifying the event or circumstance in relation to the Relevant Unsecured Default from the relevant Unsecured Representative; |
(iii) | an Unsecured Standstill Period has elapsed or otherwise terminated; and |
(iv) | the
Relevant Unsecured Default is continuing at the end of the relevant Unsecured Standstill Period. |
(b) | Promptly upon becoming aware of an Unsecured Default, the relevant Unsecured Representative(s) may by notice (an “Unsecured Enforcement Notice”) in writing notify the Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), the Second Lien Representative(s) and the High Yield Representative(s) of the existence of such Unsecured Default. |
10.8 | Unsecured
Standstill Period |
(a) | the date falling 179 days after the Unsecured Standstill Start Date (the “Unsecured Standstill Period”); |
(b) | the
date the Senior Secured Creditors and/or the Second Lien Finance Parties and/or the High Yield Finance Parties (as applicable) take any Enforcement Action in relation to a particular Unsecured Guarantor or Unsecured Borrower or Unsecured Issuer that is a member of the Group provided, however, that if an Unsecured Standstill Period ends pursuant to paragraph (b) of this Clause 10.8 (Unsecured Standstill Period), the Unsecured Finance Parties may only take the same Enforcement Action in relation to the Unsecured Guarantor or Unsecured Borrower or Unsecured Issuer that is a member of the Group as the Enforcement |
(c) | the date of an Insolvency Event (other than as a result of any action taken by any Unsecured Finance Party) in relation to a particular Unsecured Guarantor or Unsecured Borrower or Unsecured Issuer that is a member of the Group against whom Enforcement Action is to be taken; |
(d) | the
expiry of any other Unsecured Standstill Period outstanding at the date such first mentioned Unsecured Standstill Period commenced (unless that expiry occurs as a result of a cure, waiver or other permitted remedy); |
(e) | the date on which the Majority Senior Lenders, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), the Majority Second Lien Lenders, the Second Lien Notes Trustee(s), the Majority High Yield Lenders and the High Yield Notes Trustee(s) give their consent to the termination of the relevant Unsecured Standstill Period; and |
(f) | a
failure to pay the principal amount outstanding on the Unsecured Notes and the Unsecured Facilities at the final stated maturity of those Unsecured Notes and Unsecured Facilities. |
10.9 | Subsequent Unsecured Defaults |
11. | SUBORDINATED LIABILITIES |
11.1 | Restriction on Payment: Subordinated Liabilities |
(a) | no
Debtor will make, and each Debtor will procure that none of its Subsidiaries will make, and no Subordinated Creditor will receive, any payment or distribution of any kind whatsoever in respect or on account of the Subordinated Liabilities (including in relation to the direct or indirect purchase or other acquisition of the Subordinated Liabilities); and |
(b) | no
Debtor will, and each Debtor will procure that none of its Subsidiaries will, create or permit to subsist, and no Subordinated Creditor will receive from any Debtor or any member of the Group, any Security over any asset of any Debtor or any member of the Group or give or permit to subsist any guarantee in respect of any part of the Subordinated Liabilities, |
11.2 | Permitted
Payments: Subordinated Liabilities |
(a) | So long as no Acceleration Event has occurred and is continuing, any Debtor or any member of the Group may pay interest, principal or other amounts in respect of the Subordinated Liabilities if such payment is: |
(i) | (if prior to the Senior Discharge Date), permitted by the Senior Facilities Agreement; |
(ii) | (if
prior to the Senior Secured Notes Discharge Date), permitted by the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes remain outstanding (as applicable); |
(iii) | (if prior to the Pari Passu Debt Discharge Date), permitted by any Pari Passu Debt Document; |
(iv) | (if prior to the Second Lien Discharge Date), permitted by any Second Lien Finance Document; |
(v) | (if
prior to the High Yield Discharge Date), permitted by any High Yield Finance Document; and |
(vi) | (if prior to the Unsecured Discharge Date), permitted by any Unsecured Finance Document. |
(b) | Nothing in this Agreement or any of
the other Debt Documents shall prohibit or restrict any roll-up or capitalisation of any amount under any Subordinated Creditor Document or the issue of any payment-in-kind instruments in satisfaction of any amount under any Subordinated Creditor Document or any forgiveness, write-off or capitalization of any Subordinated Liabilities or the release or other discharge of any such Subordinated Liabilities, provided that, in any such case, there is no payment in cash or Cash Equivalent Investments (as defined in the Senior Facilities Agreement). |
11.3 | Restrictions on enforcement: Subordinated Creditor |
(a) | Until
after the Final Discharge Date, no Subordinated Creditor may take Enforcement Action in relation to any Subordinated Liabilities without the prior Consent of the Majority Senior Creditors (if on or before the Senior Discharge Date), the relevant Senior Secured Notes Representative(s) (if on or before the Senior Secured Notes Discharge Date), the Pari Passu Debt Representative (if on or before the Pari Passu Debt Discharge Date), the Second Lien Notes Trustee (if on or before the Second Lien Notes Discharge Date), the Majority Second Lien Lenders (if on or before the Second Lien Loan Discharge Date), the High Yield Notes Trustee (if on or before the High Yield Notes Discharge Date) and the Majority High Yield Lenders (if on or before the High Yield Loan Discharge Date). |
(b) | After
the occurrence of an Insolvency Event, each Subordinated Creditor may (unless otherwise directed by the Security Agent or unless the Security Agent has taken or has given notice that it intends to take, action on behalf of that Subordinated Creditor in accordance with Clause 13.5 (Filing of claims)) exercise any right they may otherwise have against that Debtor or member of the Group: |
(i) | accelerate any of that Debtor or member of the Group’s Subordinated Liabilities or declare them prematurely due and payable or payable on demand; |
(ii) | make
a demand under any guarantee, indemnity or other assurance against loss given by that Debtor or member of the Group in respect of any Subordinated Liabilities; |
(iii) | exercise any right of set–off or take or receive any Payment or claim in respect of any Subordinated Liabilities of that Debtor or member of the Group; or |
(iv) | claim
and prove in the liquidation of that Debtor or member of the Group for the Subordinated Liabilities owing to it. |
11.4 | Turnover of Subordinated Liabilities |
(a) | any Subordinated Creditor receives or recovers a payment or distribution of any kind whatsoever (including by way of set-off or combination of accounts) in respect or on account of any of the Subordinated Liabilities which is not permitted by Clause 11.2 (Permitted
Payments: Subordinated Liabilities); |
(b) | any Subordinated Creditor receives or recovers proceeds pursuant to any Enforcement Action; or |
(c) | any Debtor or member of the Group makes any payment or distribution of any kind whatsoever in respect or on account of the purchase or other acquisition of any of the Subordinated Liabilities where the payment would not be permitted under Clause 11.2 (Permitted Payments: Subordinated Liabilities), |
11.5 | No Reduction or Discharge |
11.6 | Indemnity |
11.7 | No Subrogation of Subordinated Creditors |
11.8 | Amendments to Subordinated Creditor Documents |
(a) | Until after the Final Discharge Date, no Debtor nor any Subordinated Creditor will amend any term of any Subordinated Creditor Document in a manner or to an extent which would result in: |
(i) | any
Debtor being subject to obligations which would conflict with any provisions of this Agreement; or |
(ii) | the ranking or subordination provided for in this Agreement being affected in any way that is materially adverse to the interests of the Senior Finance Parties, the Pari Passu Creditors, the Senior Secured |
(b) | Paragraph (a) above does not apply to any amendment: |
(i) | which is necessary to give effect or implement the actions of payments permitted under Clause 11.2 (Permitted Payments: Subordinated Liabilities); |
(ii) | which is not materially prejudicial to the interests
of any Secured Party as determined by the Security Agent; or |
(iii) | which is minor, technical or administrative or corrects a manifest error. |
11.9 | Subordinated Creditor Representations |
(a) | it
is a company duly organised or a partnership duly formed, in either case, validly existing under the laws of its jurisdiction of incorporation or establishment; |
(b) | subject to the Legal Reservations, the obligations expressed to be assumed by it in this Agreement are legal, valid, binding and enforceable obligations; and |
(c) | subject to the Legal Reservations, the entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not violate: |
(i) | in
any material respect, any law or regulation or official judgment or decree applicable to it; |
(ii) | in any material respect, its constitutional documents; or |
(iii) | any material agreement or instrument to which it is a party or
binding on any of its assets, where such violation would or is reasonably likely to have a material adverse effect on the ability of that Subordinated Creditor to perform its payment obligations thereunder. |
11.10 | Obligation to accede as a Subordinated Creditor |
12. | INTRA-GROUP
LENDERS AND INTRA-GROUP LIABILITIES |
12.1 | Restriction on Payment: Intra-Group Liabilities |
(a) | that Payment is permitted under Clause 12.2 (Permitted Payments: Intra-Group Liabilities); or |
(b) | the
taking or receipt of that Payment is permitted under paragraph (c) of Clause 12.7 (Permitted Enforcement: Intra-Group Lenders). |
12.2 | Permitted Payments: Intra-Group Liabilities |
(a) | Subject to paragraph (b) below, the Debtors may make Payments in respect of the Intra-Group Liabilities (whether of principal, interest or otherwise) from time to time. |
(b) | Payments
in respect of the Intra-Group Liabilities may not be made pursuant to paragraph (a) above if, at the time of the Payment, an Acceleration Event has occurred unless: |
(i) | prior to the Senior Secured Discharge Date, the Majority Senior Creditors, the Pari Passu Debt Representative(s) and the Senior Secured Notes Representative(s) Consent to that Payment being made; |
(ii) | prior to the Second Lien Loan Discharge Date, the Majority Second Lien Lenders Consent to that Payment being made; |
(iii) | prior
to the Second Lien Notes Discharge Date, the Second Lien Notes Trustee Consents to that Payment being made; |
(iv) | prior to the High Yield Discharge Date, the High Yield Notes Trustee Consents to that Payment being made; or |
(v) | that
Payment is made to facilitate Payment of the Senior Secured Liabilities, the Second Lien Liabilities, the Senior Agent Liabilities, the Second Lien Agent Liabilities, the High Yield Agent Liabilities, the Unsecured Agent Liabilities, the High Yield Liabilities, the Pari Passu Debt Representative Amounts, the Senior Secured Notes Trustee Amounts, the Second Lien Notes Trustee Amounts, the High Yield Notes Trustee Amounts or the Unsecured Notes Trustee Amounts. |
12.3 | Payment obligations continue |
12.4 | Acquisition of Intra-Group Liabilities |
(a) | Subject to paragraph (b) below, each Debtor may, and may permit any member of the Group to: |
(i) | enter
into any Liabilities Acquisition; or |
(ii) | beneficially own all or any part of the share capital of a company that is party to a Liabilities Acquisition, |
(b) | Subject to paragraph (c) below, no action described in paragraph (a) above may take place in respect of any Intra-Group Liabilities if: |
(i) | that
action would result in a breach of (A) (prior to the Senior Discharge Date) the Senior Facilities Agreement, (B) (prior to the Senior Secured Notes Discharge Date) the Senior Secured Notes Indenture(s), (C) (prior to the Pari Passu Debt Discharge Date) the Pari Passu Debt Document(s), (D) (prior to the Second Lien Loan Discharge Date) the Second Lien Loan Finance Documents, (E) (prior to the Second Lien Notes Discharge Date) the Second Lien Notes Finance Documents, or (F) (prior to the High Yield Discharge Date) the High Yield Finance Documents; or |
(ii) | at the time of that action, an Acceleration Event has occurred. |
(c) | The
restrictions in paragraph (b) above shall not apply if: |
(i) | prior to the later of the Senior Secured Discharge Date and the Second Lien Discharge Date, the applicable Instructing Group Consents to that action; or |
(ii) | that action is taken to facilitate Payment of the Senior Secured Liabilities, the Second Lien Liabilities, the Senior Agent Liabilities, the Second Lien Agent Liabilities, the High Yield Agent Liabilities, the Unsecured Agent Liabilities, the High Yield Liabilities, the Pari Passu Debt Representative Amounts, the Senior
Secured Notes Trustee Amounts, the Second Lien Notes Trustee Amounts, the High Yield Notes Trustee Amounts or the Unsecured Notes Trustee Amounts. |
12.5 | Security: Intra-Group Lenders |
(a) | that Security, guarantee, indemnity or other assurance against loss is permitted under
the terms of the Secured Debt Documents; or |
(b) | prior to: |
(i) | the Senior Secured Discharge Date: |
(A) | the prior Consent of the Majority Senior Creditors; |
(B) | to
the extent not permitted by a Senior Secured Notes Indenture, the prior Consent of the Senior Secured Notes Representative(s); and |
(C) | to the extent not permitted by the Pari Passu Debt Documents, the prior Consent of the Pari Passu Debt Representative(s); |
(ii) | the Second Lien Notes Discharge Date: |
(A) | to
the extent not permitted by a Second Lien Notes Indenture, the prior Consent of the Second Lien Notes Trustee; and |
(B) | to the extent not permitted by a Second Lien Loan Finance Document, the prior Consent of the Majority Second Lien Lenders; and |
(iii) | the High Yield Notes Discharge Date: |
(A) | to
the extent not permitted by the High Yield Notes Finance Documents, the prior Consent of the High Yield Notes Trustee; and |
(B) | to the extent not permitted by the High Yield Loan Finance Documents, the prior Consent of the Majority High Yield Lenders, |
12.6 | Restriction on enforcement: Intra-Group Lenders |
12.7 | Permitted Enforcement: Intra-Group Lenders |
(a) | accelerate any of that member of the Group’s Intra-Group Liabilities or declare them prematurely due and payable or payable on demand; |
(b) | make a demand under any guarantee, indemnity or other assurance against loss given by that member of the Group in respect of any Intra-Group Liabilities; |
(c) | exercise
any right of set-off or take or receive any Payment in respect of any Intra-Group Liabilities of that member of the Group; or |
(d) | claim and prove in the liquidation of that member of the Group for the Intra-Group Liabilities owing to it. |
12.8 | Representations: Intra-Group Lenders |
(a) | it
is a company duly organised or a partnership duly formed, in either case, validly existing under the laws of its jurisdiction of incorporation or establishment; |
(b) | subject to the Legal Reservations, the obligations expressed to be assumed by it in this Agreement are legal, valid, binding and enforceable obligations; and |
(c) | subject
to the Legal Reservations, the entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not violate: |
(i) | in any material respect, any law or regulation or official judgment or decree applicable to it; |
(ii) | in any material respect, its constitutional documents; or |
(iii) | any
material agreement or instrument to which it is a party or binding on any of its assets, where such violation would or is reasonably likely to have a material adverse effect on the ability of that Intra-Group Lender to perform its payment obligations thereunder. |
13. | EFFECT OF INSOLVENCY EVENT |
13.1 | SFA Cash Cover |
13.2 | Payment of distributions |
(a) | After the occurrence of an Insolvency Event, any Party entitled to receive a distribution out of the assets of that Debtor, Security Grantor or member of the Group in respect of Liabilities owed to that Party shall, to the extent it
is able to do so, direct the person responsible for the distribution of the assets of that Debtor, Security Grantor or member of the Group to pay that distribution to the Security Agent until the Liabilities owing to the Secured Parties have been paid in full. |
(b) | The Security Agent shall apply distributions paid to it under paragraph (a) above in accordance with Clause 18 (Application of Proceeds). |
13.3 | Set-Off |
(a) | Subject
to paragraph (b) below, to the extent that any Debtor’s, Security Grantor’s or member of the Group’s Liabilities are discharged by way of set-off (mandatory or otherwise) after the occurrence of an Insolvency Event, any Creditor which benefited from that set-off shall pay an amount equal to the amount of the Liabilities owed to it which are discharged by that set-off to the Security Agent for application in accordance with Clause 18 (Application of Proceeds). |
(b) | Paragraph (a) above shall not apply to: |
(i) | any
such discharge of the Multi-account Overdraft Liabilities to the extent that the relevant discharge represents a reduction from a Permitted Gross |
(ii) | any Close-Out Netting by a Hedge Counterparty or a Hedging Ancillary Lender; |
(iii) | any
Payment Netting by a Hedge Counterparty or a Hedging Ancillary Lender; |
(iv) | any Inter-Hedging Agreement Netting by a Hedge Counterparty; and |
(v) | any Inter-Hedging Ancillary Document Netting by a Hedging Ancillary Lender. |
13.4 | Non-cash distributions |
13.5 | Filing of claims |
(a) | take any Enforcement Action (in accordance with the terms of this Agreement) against that Debtor, Security Grantor or member of the Group; |
(b) | demand, sue, prove and give receipt for any or all of that Debtor’s, Security Grantor’s or member of the Group’s
Liabilities; |
(c) | collect and receive all distributions on, or on account of, any or all of that Debtor’s, Security Grantor’s or member of the Group’s Liabilities; and |
(d) | file claims, take proceedings and do all other things the Security Agent considers reasonably necessary to recover that Debtor’s, Security Grantor’s or member of the Group’s Liabilities. |
13.6 | Creditors’
actions |
(a) | do all things that the Security Agent (acting in accordance with Clause 13.7 (Security Agent instructions)) reasonably requests in order to give effect to this Clause 13 (Effect of Insolvency Event); and |
(b) | if
the Security Agent is not entitled to take any of the actions contemplated by this Clause 13 (Effect of Insolvency Event) or if the Security Agent (acting in accordance with Clause 13.7 (Security Agent instructions)) requests that a Creditor take that action, undertake that action itself in accordance with the instructions of the Security Agent (acting in accordance with Clause 13.7 (Security Agent instructions)) or grant a power of attorney to the Security Agent (on such terms as the Security Agent (acting in accordance with Clause 13.7 (Security Agent instructions)) may reasonably require, although no Notes Trustee shall be under any obligation to grant such powers
of attorney) to enable the Security Agent to take such action. |
13.7 | Security Agent instructions |
(a) | (except in relation to the High Yield Liabilities of a HY Issuer or HY Borrower that is not a member of the Group) on
the instructions of the group of Primary Creditors entitled, at that time, to give instructions under Clause 16.2 (Enforcement instructions) or Clause 16.3 (Manner of enforcement); or |
(b) | in the absence of any such instructions, as the Security Agent sees fit (which may include taking no actions). |
13.8 | US Insolvency Proceedings: “subordination agreement”6 |
13.9 | US Insolvency Proceedings: Reorganisation securities |
13.10 | US Insolvency Proceedings: recoveries and turnover |
(a) | If
any Primary Creditor is required in a US Insolvency Proceeding of any US Group Member or otherwise to disgorge, turn over or otherwise pay the bankruptcy trustee or the bankruptcy estate in any such US Insolvency Proceedings, because such amount was avoided or ordered to be paid or disgorged for any reason, including because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise then the Liabilities owed to such Primary Creditor shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior Secured Discharge Date or the Second Lien Discharge Date (as the case may be), if it shall otherwise have occurred, shall be deemed not to have occurred. |
(b) | If
this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the Parties hereto. |
(c) | The Creditors and Debtors agree that none of them shall be entitled to benefit in any manner that is inconsistent with this Agreement from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities
set forth in this Agreement. |
13.11 | US Insolvency Proceedings: rights as to Transaction Security and proceeds |
(a) | if, in a US Insolvency Proceeding of any US Group Member, the Senior Lenders (or a subset thereof) instruct the Security
Agent to consent to: |
(i) | any debtor-in-possession financing under section 364 of the US Bankruptcy Code that is secured by liens (the “DIP Financing Liens”) senior to or pari passu with the liens securing the Senior Lender Liabilities and the Hedging Liabilities (a “Bankruptcy Financing”); or |
(ii) | the
use of cash collateral under section 363 of the US Bankruptcy Code (“Section 363 Cash Collateral”), |
(A) | will not object to, oppose or seek to challenge (or support or instruct the Security Agent or any other person in objecting to, opposing or seeking to challenge) such Bankruptcy Financing (provided it is a Qualifying Financing), the use of Section 363 Cash Collateral or any adequate protection granted to the Senior Creditors hereunder; and |
(B) | shall
not object to subordination of: |
(1) | any liens securing the Second Lien Liabilities to such DIP Financing Liens; or |
(2) | any replacement liens provided to such Second Lien Finance Parties as adequate protection to any replacement liens provided as adequate protection to the Senior Creditors on the same terms as the liens securing the Second Lien Liabilities are subordinated to the liens securing the Senior Lender Liabilities and the Hedging Liabilities; and |
(b) | a
Bankruptcy Financing shall be a “Qualifying Financing” only if: |
(i) | the priorities in the Transaction Security (including proceeds thereof arising after the commencement of the applicable US Insolvency Proceeding) of the Security securing the Senior Liabilities and the Security securing the Second Lien Liabilities will be the same relative to one another as existed immediately prior to the commencement of the applicable US Insolvency Proceeding; |
(ii) | such Bankruptcy Financing does not
compel any Debtor to seek confirmation of a specific plan of reorganisation for which material terms are set forth in the documentation relating to such Bankruptcy Financing (other than specifying that the Bankruptcy Financing must be paid in full at consummation of such plan of reorganisation); |
(iii) | such Bankruptcy Financing does not expressly require the sale, liquidation or disposition of all or any substantial part of the Transaction Security prior to a default under such Bankruptcy Financing (other than a sale pursuant to Section 363 of the Bankruptcy Code that meets the |
(iv) | that to the extent that the Senior Liabilities are provided adequate protection in the form of replacement collateral, the Second Lien Liabilities shall, subject to the Agreed Security Principles, be provided the same replacement collateral on a junior basis to the Senior Liabilities; provided, that if the Second Lien Finance Parties are granted adequate protection in the form of claims under Section 507(b) of the Bankruptcy Code, such claims shall be subordinate in right of payment to any claim of the Senior Creditors (and to the claims of any lenders providing any Qualifying Financing), and the Second
Lien Finance Parties hereby waive their rights under Section 1129(a)(9) of the Bankruptcy Code and agree that such claims may receive any treatment under a plan of reorganization which may be afforded the Second Lien Liabilities. |
13.12 | US Insolvency Proceedings: Common Transaction Security |
(a) | Notwithstanding anything to the contrary contained in the Security Documents, it is the intent of the Parties that, solely for the purposes of the classification
and allowance of claims in US Insolvency Proceedings, the liens granted pursuant to the Security Documents constitute two separate and distinct grants of liens on the Common Transaction Security, with the liens securing the Second Lien Liabilities being subordinate and junior to the liens securing the Senior Secured Liabilities on the terms set out in this Agreement. |
(b) | The Parties hereto hereby further acknowledge and agree that because of, among other things, their differing rights in the Common Transaction Security, the Senior Secured Liabilities are fundamentally different from the Second Lien Liabilities and must be separately classified in any Chapter 11 plan proposed or adopted in a US Insolvency Proceeding of any Debtor. |
(c) | To
give effect to the intent of the Parties as provided in this Clause 13.12, if it is held that the claims of the Senior Secured Creditors and Second Lien Creditors in respect of the Common Transaction Security constitute only one class of secured claims (rather than separate classes of senior and second lien secured claims), then the Second Lien Creditors hereby acknowledge and agree in connection with any US Insolvency Proceedings: |
(i) | that all distributions shall be made as if there were separate classes of senior and junior secured claims against members of the Group in respect of the Common Transaction Security; |
(ii) | that
to the extent that the aggregate value of the Common Transaction Security is sufficient (for this purpose ignoring all claims held by the Second Lien Creditors), the Senior Creditors shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest before any distribution is made in respect of the claims held by the Second Lien Creditors; |
(iii) | to turn over to the Security Agent amounts otherwise received or receivable by them to the extent necessary to give effect to the intent of this Clause 13.12, even if such turnover has the effect of reducing recovery of the Second Lien Creditors; and |
(iv) | until
turned over to the Senior Secured Creditors, such amounts will be held in trust for the Senior Secured Creditors. |
13.13 | US Insolvency Proceedings: rights of Second Lien Finance Parties and Senior Creditors |
(a) | each of the Senior Secured Creditors and the Second Lien Creditors, notwithstanding anything to the contrary contained herein, shall retain all rights to vote to accept or reject any plan of reorganisation, composition, arrangement or
liquidation, and, for the avoidance of doubt, nothing in this Agreement shall limit the ability of the Senior Secured Creditors or the Second Lien Creditors to make a proposal to the Group to provide debtor-in-possession financing (including any Bankruptcy Financing) in any US Insolvency Proceeding; |
(b) | the Second Lien Creditors may, in accordance with applicable law, exercise any rights and remedies against any member of the Group which are available to unsecured creditors in US Insolvency Proceedings which have commenced in respect of that member of the Group solely to the extent that such exercise of rights and remedies is not in contravention of and does not have the effect of contravening the provisions and relevant priorities set forth in this
Agreement; and |
(c) | in the event that any Second Lien Creditor becomes a judgment lien creditor in respect of Charged Property, such judgment lien shall be subordinated to the Security securing the Senior Secured Liabilities on the same basis as the other Security securing the Second Lien Liabilities are so subordinated to such Security securing the Senior Secured Liabilities under this Agreement provided that any proceeds of any such lien shall be applied in the same way as any amounts |
13.14 | US Insolvency Proceedings: disposal of Transaction Security |
13.15 | Limitation by Applicable Laws |
(a) | Each of the provisions of this Clause 13 (Effect of Insolvency Event)
shall apply only to the extent permitted by applicable laws. |
(b) | Nothing in this Clause 13 (Effect of Insolvency Event): |
(i) | entitles any Party to exercise or require any other Party
to exercise such power or voting or representation to waive, reduce, discharge, extend the due date for payment or reschedule any of the Senior Secured Creditor Liabilities or the Hedging Liabilities or the Second Lien Liabilities; or |
(ii) | shall be deemed to require any Senior Secured Creditors, Second Lien Creditors, High Yield Creditors or Unsecured Creditors to hold a meeting of the relevant Creditors or pass any resolution at such meeting or give any consent pursuant to the terms of the relevant Secured Debt Documents, High Yield Finance Documents or Unsecured Creditors. |
14. | TURNOVER
OF RECEIPTS |
14.1 | SFA Cash Cover |
14.2 | Turnover by the Creditors |
(a) | any Payment or distribution of, or on account of or in relation to, any of the Liabilities which is not either: |
(i) | a
Permitted Payment; or |
(ii) | made in accordance with Clause 18 (Application of Proceeds); |
(b) | other than where Clause 13.3 (Set-Off) applies, any amount by way of set-off in respect of any of the Liabilities owed to it which does not give effect to a Permitted Payment; |
(c) | notwithstanding
paragraphs (a) and (b) above, and other than where Clause 13.3 (Set-Off) applies, any amount: |
(i) | on account of, or in relation to, any of the Liabilities: |
(A) | after the occurrence of a Distress Event; or |
(B) | as
a result of any other litigation or proceedings against a Debtor, Security Grantor or a member of the Group (other than after the occurrence of an Insolvency Event); or |
(ii) | by way of set-off in respect of any of the Liabilities owed to it after the occurrence of a Distress Event, |
(d) | the proceeds of any enforcement of any Transaction
Security except in accordance with Clause 18 (Application of Proceeds); or |
(e) | other than where Clause 13.3 (Set-Off) or Clause 20.1 (Senior Secured Creditor Liabilities Refinancing) applies, any distribution in cash or in kind or Payment of, or on account of or in relation to, any of the Liabilities owed by any Debtor, Security Grantor or member of the Group which is not in accordance with Clause 18 (Application of Proceeds) and which is made as a result of, or after, the occurrence of an Insolvency Event, |
(i) | in relation to receipts and recoveries not received or recovered by way of set-off: |
(A) | hold an amount of that receipt or recovery equal to the Relevant Liabilities (or if less, the amount received or recovered) on trust for the Security Agent and promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement; and |
(B) | promptly
pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Agent for application in accordance with the terms of this Agreement; and |
(ii) | in relation to receipts and recoveries received or recovered by way of set-off, promptly pay an amount equal to that recovery to the Security Agent for application in accordance with the terms of this Agreement. |
14.3 | Exclusions |
(a) | by
way of: |
(i) | Close-Out Netting by a Hedge Counterparty or a Hedging Ancillary Lender; |
(ii) | Payment Netting by a Hedge Counterparty or a Hedging Ancillary Lender; |
(iii) | Inter-Hedging Agreement Netting by a Hedge Counterparty; or |
(iv) | Inter-Hedging
Ancillary Document Netting by a Hedging Ancillary Lender; |
(b) | by an Ancillary Facility Lender by way of that Ancillary Facility Lender’s right of netting or set-off relating to a Multi-account Overdraft Facility (to the extent that that netting or set-off represents a reduction from a Permitted Gross Amount of that Multi-account Overdraft Facility to or towards its Designated Net Amount); |
(c) | any refinancing subject to Clause 2.4 (Additional and/or Refinancing Debt) or Clause 20 (Refinancing
of Primary Creditor Liabilities); or |
(d) | made in accordance with Clause 19 (Equalisation). |
14.4 | Permitted assurance and receipts |
(a) | arrange
with any person which is not a Debtor, a Security Grantor or a member of the Group or a Holding Company of any Debtor, Security Grantor or member of the Group any assurance against loss in respect of, or reduction of its credit exposure to, a Debtor or a Security Grantor (including assurance by way of credit based derivative or participation); or |
(b) | make any assignment or transfer permitted by Clause 23 (Changes to the Parties), |
(i) | is
permitted by the Senior Facilities Agreement, any Second Lien Facilities Agreement, any High Yield Finance Documents and any Unsecured Finance Documents; and |
(ii) | is not in breach of Clause 4.5 (No acquisition of Hedging Liabilities) or any provision of (if prior to the Senior Secured Discharge Date in respect of the Senior Secured Notes) the Senior Secured Notes Indenture(s)
pursuant to which any Senior Secured Notes remain outstanding, (if prior to the Pari Passu Debt Discharge Date in respect of any Pari Passu Debt) the Pari Passu Debt Document(s) pursuant to which such Pari Passu Debt remains outstanding, (if prior to the Second Lien Notes Discharge Date in respect of the Second Lien Notes) the Second Lien Notes Indenture(s) pursuant to which any Second Lien Notes remain outstanding, (if prior to the High Yield Discharge Date) the High Yield Finance Documents and (if prior to the Unsecured Discharge Date) the Unsecured Finance Documents, |
14.5 | Sums
received by Debtors or Security Grantors |
(a) | hold an amount of that receipt or recovery equal to the Relevant Liabilities (or if less, the amount received or recovered) on trust for the Security Agent and promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement; and |
(b) | promptly
pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Agent for application in accordance with the terms of this Agreement. |
14.6 | Saving provision |
15. | REDISTRIBUTION |
15.1 | Recovering
Creditor’s rights |
(a) | Any amount paid by a Creditor (a “Recovering Creditor”) to the Security Agent under Clause 13 (Effect of Insolvency Event) or Clause 14 (Turnover of Receipts) shall be treated as having been paid by the relevant Debtor or Security Grantor and distributed to the Security Agent, Agents, Arrangers and Primary Creditors (each a “Sharing Creditor”) in accordance with the terms of this Agreement. |
(b) | On
a distribution by the Security Agent under paragraph (a) above of a Payment received by a Recovering Creditor from a Debtor or Security Grantor, as between the relevant Debtor or Security Grantor and the Recovering Creditor an amount equal to the amount received or recovered by the Recovering Creditor and paid to the Security Agent (as the case may be) (the “Shared Amount”) will be treated as not having been paid by that Debtor or Security Grantor. |
15.2 | Reversal of redistribution |
(a) | If
any part of the Shared Amount received or recovered by a Recovering Creditor becomes repayable to a Debtor or Security Grantor and is repaid by that Recovering Creditor to that Debtor or Security Grantor, then: |
(i) | each Sharing Creditor shall (subject, in the case of Notes Trustee Amounts, to paragraphs (a) and (c) of Clause 30.2 (Liability)), upon request of the Security Agent, pay to the Security Agent for the account of that Recovering Creditor an amount equal to the appropriate part of its share of the Shared Amount (together with an amount as is necessary to reimburse that Recovering Creditor for its proportion of any interest on the Shared Amount which that Recovering Creditor is required to pay)
(the “Redistributed Amount”); and |
(ii) | as between the relevant Debtor or Security Grantor and each relevant Sharing Creditor, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Debtor or Security Grantor. |
(b) | The Security Agent shall not be obliged to pay any Redistributed Amount to a Recovering Creditor under paragraph (a)(i) above until it has been able to establish to its satisfaction that it has actually received that Redistributed
Amount from the relevant Sharing Creditor. |
15.3 | Deferral of Subrogation |
16. | ENFORCEMENT OF TRANSACTION SECURITY |
16.1 | SFA Cash Cover |
16.2 | Enforcement instructions |
(a) | The Security Agent may refrain from enforcing the Transaction Security unless instructed otherwise by: |
(i) | the
Instructing Group; or |
(ii) | if required under paragraph (c) below, the Majority Second Lien Creditors. |
(b) | Subject to the Transaction Security having become enforceable in accordance with its terms: |
(i) | the Instructing Group; or |
(ii) | to
the extent permitted to enforce or to require the enforcement of the Transaction Security prior to the Senior Discharge Date under Clause 8.12 (Permitted Enforcement: Second Lien Creditors), the Majority Second Lien Creditors, |
(c) | Prior to the Senior Secured Discharge Date: |
(i) | if the Instructing Group
has instructed the Security Agent not to enforce or to cease enforcing the Transaction Security; or |
(ii) | in the absence of instructions from the Instructing Group, |
(d) | Notwithstanding the preceding paragraph (c) if at any time the Majority Second Lien Creditors are then entitled to give the Security Agent instructions to enforce the Transaction Security pursuant to the preceding paragraph (c) and the Majority Second Lien Creditors either give such instructions or indicate any intention to give such instructions, then either the Senior Agent or the Senior Secured Notes Representative(s) may give instructions to the Security Agent to enforce the Transaction Security as such Senior Agent or the Senior Secured Notes Representative(s) sees fit
in lieu of any instructions to enforce given by the Majority Second Lien Creditors under Clause 8.12 (Permitted Enforcement: Second Lien Creditors) and the Security Agent shall act on the first such instructions received from the Senior Agent or the Senior Secured Notes Representative(s). |
(e) | The Security Agent is entitled to rely on and comply with instructions given, or deemed to be given, in accordance with this Clause 16.2 (Enforcement instructions). |
(f) | No
Secured Party shall have any independent power to enforce, or to have recourse to, any Transaction Security or to exercise any rights or powers arising under the Transaction Security Documents except through the Security Agent. |
16.3 | Manner of enforcement |
(a) | the
relevant Instructing Group shall instruct; or |
(b) | prior to the Senior Secured Discharge Date, if: |
(i) | the Security Agent has, pursuant to paragraphs (a) and (c) of Clause 16.2 (Enforcement instructions), received instructions given by the Majority Second Lien Creditors to enforce the Transaction Security; and |
(ii) | the
Instructing Group has not given instructions as to the manner of enforcement of the Transaction Security, |
16.4 | Exercise of voting rights |
(a) | Each
Intra-Group Lender agrees (to the fullest extent permitted by law at the relevant time) with the Security Agent that it will cast its vote in any proposal put to the vote by or under the supervision of any judicial or supervisory authority in respect of any insolvency, pre-insolvency or rehabilitation or similar proceedings relating to any Debtor or member of the Group or any Security Grantor as instructed by the Security Agent. |
(b) | The Security Agent shall give instructions for the purposes of paragraph (a) above as directed by an Instructing Group. |
16.5 | Waiver
of rights |
16.6 | Duties
owed |
16.7 | Security
held by other Creditors |
16.8 | Consultation Period |
(a) | Subject
to paragraph (b) below, before giving any instructions to the Security Agent to (i) enforce the Transaction Security or (ii) take any other Enforcement Action, the Agent(s) of the Creditors represented in the Instructing Group concerned shall consult with each other Agent and the Security Agent in good faith about the instructions to be given by the Instructing Group for a period of up to 10 days (or such shorter period as each other Agent and the Security Agent shall agree) (the “Consultation Period”), and only following the expiry of a Consultation Period, the Instructing Group shall be entitled to give any instructions to the Security Agent to (A) enforce the Transaction Security or (B) take any other Enforcement Action. |
(b) | No
Agent shall be obliged to consult in accordance with paragraph (a) above and the Instructing Group shall be entitled to give any instructions to the Security Agent to enforce the Transaction Security or take any other Enforcement Action prior to the end of a Consultation Period if: |
(i) | the Transaction Security has become enforceable as a result of an Insolvency Event; or |
(ii) | the Instructing Group or any Agent of the Creditors represented in the Instructing Group determines in good faith (and notifies each Agent and the Security
Agent) that to enter into such consultations and thereby delay the commencement of enforcement of the Transaction Security could reasonably be expected to have a material adverse effect on: |
(A) | the Security Agent’s ability to enforce any of the Transaction Security; or |
(B) | the realisation proceeds of any enforcement of the Transaction Security. |
17. | PROCEEDS
OF DISPOSALS |
17.1 | Non-Distressed Disposals |
(a) | In this Clause 17.1 (Non-Distressed Disposals): |
(b) | If: |
(i) | in
respect of a disposal of: |
(A) | an asset by a Debtor; or |
(B) | an asset which is subject to the Transaction Security, |
(ii) | a Debtor is resigning as a Borrower or Guarantor under (and as defined in) the Senior Facilities Agreement in accordance with the provisions of the Senior Facilities Agreement and the equivalent provisions (if any) of the other Debt Documents; or |
(iii) | in respect of any transaction or election by the Company (x) an asset will cease to be held by or owned by a member of the Group or (y) an asset will no
longer be required to be subject to the Transaction Security in accordance with the terms of the Debt Documents, |
(A) | (prior to the Senior Lender Discharge Date) the Company confirms in writing to the Security Agent that that disposal, resignation, transaction or election is permitted under the Senior Finance Documents or the Senior Agent authorises the release in accordance with the terms of the Senior Finance Documents; |
(B) | (prior
to the Senior Secured Notes Discharge Date) the Company confirms in writing to the Security Agent that that disposal, resignation, transaction or election is permitted under the Senior Secured Notes Finance Documents or the relevant Senior Secured Notes Representative(s) authorises the release in accordance with the terms of the Senior Secured Notes Finance Documents; |
(C) | (prior to the Pari Passu Debt Discharge Date) the Company confirms in writing to the Security Agent that that disposal, resignation, transaction or election is permitted under the Pari Passu Debt Documents or
the relevant Pari Passu Debt Representative authorises the release in accordance with the terms of the Pari Passu Debt Documents; |
(D) | (prior to the Second Lien Discharge Date) the Company confirms in writing to the Security Agent that that disposal, resignation, transaction or election is permitted under the Second Lien Finance Documents or the relevant Second Lien Representative(s) |
(E) | (prior to the High Yield Discharge Date) the Company confirms in writing to the Security Agent that that disposal, resignation, transaction or election is permitted under the High Yield Finance Documents or the relevant High Yield Representative(s) authorises the release in accordance with the terms of the High Yield Finance Documents; |
(F) | (prior to the Unsecured Discharge Date)
the Company confirms in writing to the Security Agent that that disposal, resignation, transaction or election is permitted under the Unsecured Finance Documents or the relevant Unsecured Representative(s) authorises the release in accordance with the terms of the Unsecured Finance Documents; and |
(G) | (in the case of a disposal, resignation, transaction or election) that disposal, resignation, transaction or election is not a Distressed Disposal, |
(1) | to release the Transaction Security and any other claim (relating
to a Debt Document) over that asset (or the assets of and shares in the resigning Borrower or Guarantor); |
(2) | where that asset consists of shares in the capital of a Debtor, to release the Transaction Security and any other claim, including without limitation any Guarantee Liabilities or Other Liabilities (relating to a Debt Document) over that Debtor or its assets and (if any) the Subsidiaries of that Debtor and their respective assets; and |
(3) | to
execute and deliver or enter into any release of the Transaction Security or any claim described in paragraphs |
(c) | If that Non-Distressed Disposal is
not made, each release of Transaction Security or any claim described in paragraph (b) above shall have no effect and the Transaction Security or claim subject to that release shall continue in such force and effect as if that release had not been effected. |
(d) | If any Disposal Proceeds are required to be applied in mandatory prepayment of the Senior Lender Liabilities, the Senior Secured Notes Liabilities, the Pari Passu Debt Liabilities, the Second Lien Liabilities, the High Yield Liabilities or the Unsecured Liabilities (as applicable) then the Disposal Proceeds shall be applied in or towards Payment of: |
(i) | first,
(to the extent applicable) pro-rata between the Senior Lender Liabilities, the Senior Secured Notes Liabilities and the Pari Passu Debt Liabilities, in accordance with the terms of the Senior Facilities Agreement, the Senior Secured Notes Indenture(s) and the applicable Pari Passu Debt Document, to the extent permitted by the Senior Facilities Agreement, the Senior Secured Notes Indenture(s) and the applicable Pari Passu Debt Documents (without any obligation to apply those amounts towards the Second Lien Liabilities, the High Yield Liabilities or the Unsecured Liabilities); |
(ii) | second,
the Second Lien Liabilities in accordance with the terms of the Second Lien Finance Documents (without any obligation to pay those amounts towards the High Yield Liabilities or the Unsecured Liabilities); and |
(iii) | then, after the discharge in full of the Senior Lender Liabilities, the Senior Secured Notes Liabilities, the Pari Passu Debt Liabilities and the Second Lien Liabilities, pro-rata between the High Yield Liabilities and the Unsecured Liabilities in accordance with the terms of the High Yield Finance Documents and the Unsecured Finance Documents (as applicable), |
17.2 | Distressed
Disposals |
(a) | Subject to paragraphs (c), (d) and (e) below, if a Distressed Disposal of any asset is being effected, the Security Agent is irrevocably authorised (at the cost of the relevant Debtor, Security Grantor or the Company and without any Consent, |
(i) | release of Security/non‑crystallisation certificates: to release the Transaction Security or any other claim over that asset and execute and deliver or enter into any release of that Transaction Security or claim and issue any letters of non-crystallisation of any floating charge or any Consent to dealing that may, in the discretion of the Security Agent, be considered necessary or desirable; |
(ii) | release of liabilities and Security on a share sale (Debtor):
if the asset which is disposed of consists of shares in the capital of a Debtor to release: |
(A) | that Debtor and any Subsidiary of that Debtor from all or any part of: |
(1) | its Borrowing Liabilities; |
(2) | its Guarantee Liabilities; and |
(3) | its
Other Liabilities; |
(B) | any Transaction Security granted by that Debtor or any Subsidiary of that Debtor over any of its assets; and |
(C) | any other claim of an Intra-Group Lender, a Subordinated Creditor, or another Debtor over that Debtor’s assets or over the assets of any Subsidiary of that Debtor, |
(iii) | release of liabilities and Security on a share sale (Holding Company): if the asset which is disposed of consists of shares in the capital of any Holding Company of a Debtor to release: |
(A) | that Holding Company and any Subsidiary of that Holding Company from all or any part of: |
(1) | its
Borrowing Liabilities; |
(2) | its Guarantee Liabilities; and |
(3) | its Other Liabilities; |
(B) | any
Transaction Security granted by that Holding Company or any Subsidiary of that Holding Company over any of its assets; and |
(C) | any other claim of an Intra-Group Lender, a Subordinated Creditor or another Debtor over the assets of that Holding Company and any Subsidiary of that Holding Company, |
(iv) | disposal
of liabilities on a share sale: if the asset which is disposed of consists of shares in the capital of a Debtor or the Holding Company of a Debtor and the Security Agent (acting in accordance with paragraph (f) below) decides to dispose of all or any part of: |
(A) | the Liabilities; or |
(B) | the Debtor Liabilities, |
(1) | (if
the Security Agent (acting in accordance with paragraph (f) below) does not intend that any transferee of those Liabilities or Debtor Liabilities (the “Transferee”) will be treated as a Primary Creditor or a Secured Party for the purposes of this Agreement), to execute and deliver or enter into any agreement to dispose of all or part of those Liabilities or Debtor Liabilities provided that notwithstanding any other provision of any Debt Document the Transferee shall not be treated as a Primary Creditor or a Secured Party for the purposes of this Agreement; and |
(2) | (if the Security Agent (acting in accordance with paragraph (f) below) does intend that any Transferee
will be treated as a Primary Creditor or a Secured Party for the |
(x) | all (and not part only) of the Liabilities owed to the Primary Creditors; and |
(y) | all
or part of any other Liabilities and the Debtor Liabilities, |
(v) | transfer of obligations in respect of liabilities on a share sale: if the asset which is disposed of consists of shares in the capital of a Debtor or the Holding Company of a Debtor (the “Disposed Entity”) and the Security Agent (acting in accordance with paragraph (f) below) decides to transfer to another Debtor (the “Receiving Entity”) all or any part of the Disposed Entity’s obligations or any obligations of any Subsidiary of that Disposed Entity in respect of: |
(A) | the
Intra-Group Liabilities; or |
(B) | the Debtor Liabilities, |
(1) | agree to the transfer of all or part of the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities on behalf of the relevant Intra-Group Lenders and Debtors to which those obligations are owed and on behalf of the Debtors which owe those obligations; and |
(2) | (provided
the Receiving Entity is a Holding Company of the Disposed Entity which is also a guarantor of Senior Secured Liabilities) to accept the transfer of all or part of the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities on behalf of the Receiving Entity or Receiving Entities to which the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities are to be transferred. |
(b) | The net proceeds of each Distressed Disposal (and the net proceeds of any disposal of Liabilities or Debtor Liabilities pursuant to paragraph (a)(iv) above) shall be paid to the Security Agent (as the case may be) for application in accordance with Clause 18 (Application of Proceeds) as if those
proceeds were the proceeds of an enforcement of the Transaction Security and, to the extent that |
(c) | In the case of a Distressed Disposal (or a disposal of Liabilities pursuant to paragraph (a)(iv)(B) above) effected by or at
the request of the Security Agent (acting in accordance with paragraph (f)(ii) below), the Security Agent shall take reasonable care to obtain a fair market price in the prevailing market conditions (though the Security Agent shall not have any obligation to postpone any such Distressed Disposal or disposal of Liabilities in order to achieve a higher price). |
(d) | Where Borrowing Liabilities in respect of any Senior Secured Liabilities or Second Lien Liabilities would otherwise be released pursuant to paragraph (a) above, the Creditor concerned may elect to have those Borrowing Liabilities transferred to a Security Grantor, in which case the Security Agent is irrevocably authorised (at the cost of the relevant Debtor or Security Grantor and without any
Consent, sanction, authority or further confirmation from any Creditor, Debtor or Security Grantor) to execute such documents as are required to so transfer those Borrowing Liabilities by way of debt assumption by the relevant Security Grantor, as relevant. |
(e) | If: |
(i) | on or after the incurrence of Second Lien Liabilities but before the Second Lien Discharge Date (the “Second Lien Protection Period”); or |
(ii) | on
or after the incurrence of High Yield Liabilities but before the High Yield Discharge Date (the “High Yield Protection Period”), |
(i) | (during
the High Yield Protection Period) the High Yield Representatives and/or (during the Second Lien Protection Period) the Second Lien Representatives have approved the release; or |
(ii) | where (during the High Yield Protection Period) shares or assets of a High Yield Guarantor, a HY Issuer or a HY Borrower or (during the Second |
(A) | the proceeds of such sale or disposal are in cash (or substantially in cash) and/or other marketable securities or, if the proceeds of such sale or disposal are not in cash (or substantially in cash) and/or other marketable securities, the requirements of paragraph (C)(3) below are satisfied; |
(B) | all claims of the Senior Secured Creditors against the relevant Debtor(s) or a member(s) of the Group (if any) whose shares
are pledged in favour of the Senior Secured Creditors and are sold or disposed of pursuant to such Enforcement Action, are unconditionally released and discharged or sold or disposed of concurrently with such sale (and are not assumed by the purchaser or one of its Affiliates), and all Security under the Security Documents in respect of the assets that are sold or disposed of is simultaneously and unconditionally released and discharged concurrently with such sale, provided that in the event of a sale or disposal of any such claim (instead of a release or discharge): |
(1) | the Senior Agent, Senior Secured Notes Representative(s) and Pari Passu Debt Representatives determine acting reasonably and in good
faith that the Senior Finance Parties, the Senior Secured Notes Finance Parties and the Pari Passu Creditors (respectively) will recover more than if such claim was released or discharged; and |
(2) | the Senior Agent, Senior Secured Notes Representative(s) and Pari Passu Debt Representatives serve a notice on the Security Agent notifying the Security Agent of the same, |
(C) | such
sale or disposal (including any sale or disposal of any claim) is made: |
(1) | pursuant to a Competitive Process; |
(2) | pursuant to any process or proceedings approved or supervised by or on behalf of any court of law where there |
(3) | where a reputable, independent and internationally recognised investment bank, firm of accountants or third party professional firm which is regularly engaged in providing valuations in respect of the relevant type and size of the assets, in each case selected by the Security Agent has delivered an opinion (including an enterprise valuation, a copy of which has been provided on a non-reliance basis to the High Yield Representatives on behalf of the High Yield Creditors and the Second Lien Representatives on behalf of the Second Lien Creditors) in respect of such sale or disposal that the amount received in connection therewith is fair from a financial point of view taking into account all relevant circumstances
including the method of enforcement and such opinion shall be conclusive evidence of the fairness of the amount received provided that the liability of such investment bank, firm of accountants or third party professional firm in giving such opinion may be limited to the amount of its fees in respect of such engagement. |
(f) | For the purposes of paragraphs (a)(ii) to (a)(v), (c) and (e) above, the Security Agent shall act: |
(i) | if the relevant Distressed Disposal is being effected by way
of enforcement of the Transaction Security, in accordance with Clause 16.3 (Manner of enforcement); and |
(ii) | in any other case: |
(A) | on the instructions of the Instructing Group; or |
(B) | in the absence of any such instructions, as the Security Agent sees fit
(which may include taking no action). |
17.3 | Creditors’, Debtors’ and Security Grantors’ actions |
(a) | do all things that the Security Agent reasonably requests in order to give effect to this Clause 17 (Proceeds of Disposals) (which shall include, without limitation, the execution of any assignments, transfers, releases or other documents that the |
(b) | if the Security Agent is not entitled to take any of the actions contemplated by this Clause 17 (Proceeds of Disposals) or if the Security Agent requests that any Creditor, Debtor or Security Grantor take any such action, take that action itself in accordance with the reasonable instructions of the Security Agent, |
18. | APPLICATION OF PROCEEDS |
18.1 | Order of Application of Group Recoveries |
(a) | in discharging any sums owing to the Security Agent, any Receiver or any Delegate on a pari passu basis; |
(b) | in discharging any sums owing to the Senior Agent (in respect of the Senior Agent Liabilities), any sums owing to the Second Lien Agent (in respect of the Second Lien Agent Liabilities), any sums owing to a Pari Passu Debt Representative (in respect of its Pari Passu Debt Representative Amounts), any sums owing to a High Yield Agent (in respect of the High Yield Agent
Liabilities), any sums owing to an Unsecured Agent (in respect of Unsecured Agent Liabilities) and any Senior Secured Notes Trustee Amounts, Second Lien Notes Trustee Amounts, High Yield Notes Trustee Amounts or Unsecured Notes Trustee Amounts on a pari passu basis; |
(c) | in payment of all costs and expenses incurred by any Agent or Senior Secured Party in connection with any realisation or enforcement of the Transaction |
(d) | in payment to: |
(i) | the Senior Agent on its own behalf and on behalf of the Senior Arrangers and Senior Lenders; |
(ii) | each
Pari Passu Debt Representative on its own behalf and on behalf of the Pari Passu Creditors; |
(iii) | each Senior Secured Notes Representative on its own behalf and on behalf of the Senior Secured Notes Creditor; and |
(iv) | the Hedge Counterparties, |
(A) | the
Senior Arranger Liabilities and the Senior Lender Liabilities (in accordance with the terms of the Senior Finance Documents); |
(B) | the Pari Passu Debt Liabilities (in accordance with the terms of the Pari Passu Debt Documents); |
(C) | the Senior Secured Notes Liabilities (in accordance with the terms of the Senior Secured Notes Finance Documents); and |
(D) | the
Hedging Liabilities (on a pro rata basis between the Hedging Liabilities of each Hedge Counterparty) (provided that, any Group Recoveries from a Non-ECP Debtor shall not be applied towards the discharge of any Hedging Liability that constitutes an Excluded Swap Obligation), |
(e) | in payment to each Second Lien Representative on its own behalf and on behalf of the other Second Lien Finance Parties (other than the Security Agent) for |
(f) | in payment to: |
(i) | each High Yield Representative on its own behalf and on behalf of the High Yield Finance Parties (other than the Security Agent) for application (in accordance with the terms of the High Yield Finance Documents) towards the discharge of the High Yield Liabilities; and |
(ii) | each
Unsecured Representative on its own behalf and on behalf of the Unsecured Finance Parties for application (in accordance with the terms of the Unsecured Finance Documents) towards the discharge of the Unsecured Liabilities, |
(g) | the balance, if any, in payment to the relevant Debtor or Security Grantor. |
18.2 | Prospective liabilities |
(a) | any
sum to any Security Agent, any Receiver or any Delegate; and |
(b) | any part of the Liabilities, the Agent Liabilities or the Arranger Liabilities, |
18.3 | Treatment
of SFA Cash Cover and Senior Lender Cash Collateral |
(a) | Nothing in this Agreement shall prevent any Issuing Bank or Ancillary Facility Lender taking any Enforcement Action in respect of any SFA Cash Cover which has been provided for it in accordance with the Senior Facilities Agreement or any Pari Passu Debt Document. |
(b) | To the extent that any SFA Cash Cover is not held with the Relevant Issuing Bank or Relevant Ancillary Lender, all amounts from time to time received or recovered in connection with the realisation or enforcement
of that SFA Cash Cover shall be paid to the Security Agent and shall be held by the Security Agent on trust as trustee or as agent to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law, in the following order of priority: |
(i) | to the Relevant Issuing Bank or Relevant Ancillary Lender towards the discharge of the Senior Lender Liabilities for which that SFA Cash Cover was provided; and |
(ii) | the balance, if any, in accordance with Clause 18.1 (Order
of Application of Group Recoveries). |
(c) | To the extent that any SFA Cash Cover is held with the Relevant Issuing Bank or Relevant Ancillary Lender, nothing in this Agreement shall prevent that Relevant Issuing Bank or Relevant Ancillary Lender receiving and retaining any amount in respect of that SFA Cash Cover. |
(d) | Nothing in this Agreement shall prevent any Issuing Bank receiving and retaining any amount in respect of any Senior Lender Cash Collateral provided for it in accordance with the terms of the Senior
Facilities Agreement. |
18.4 | Investment of proceeds |
18.5 | Currency Conversion |
(a) | For
the purpose of, or pending the discharge of, any of the Secured Obligations the Security Agent may convert any moneys received or recovered by it from one currency to another, at the Security Agent’s Spot Rate of Exchange. |
(b) | The obligations of any Debtor or Security Grantor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
18.6 | Permitted Deductions |
18.7 | Good Discharge |
(a) | Any
payment to be made in respect of the Secured Obligations by the Security Agent: |
(i) | may be made to the relevant Agent on behalf of its Creditors; |
(ii) | may be made to the Relevant Issuing Bank or Relevant Ancillary Lender in accordance with paragraph (b)(i) of Clause 18.3 (Treatment of SFA Cash Cover and Senior Lender Cash Collateral); or |
(iii) | shall
be made directly to the Hedge Counterparties, |
(b) | The Security Agent is not under any obligation to make the payments to the Agents or the Hedge Counterparties under paragraph (a) above in the same currency as that in which the Liabilities owing to the relevant Creditor are denominated. |
18.8 | Calculation
of Amounts |
(a) | notionally convert the Liabilities owed to any person into a common base currency (decided in its discretion by the Security Agent), that notional conversion to be made at the spot rate at which the Security Agent is able to purchase the notional base currency with the actual currency of the Liabilities owed to that person at the time at which that calculation is to be made; and |
(b) | assume
that all moneys received or recovered as a result of the enforcement or realisation of the Security Property are applied in discharge of the Liabilities in accordance with the terms of the Debt Documents under which those Liabilities have arisen. |
19. | EQUALISATION |
19.1 | Equalisation definitions |
(a) | in relation to a Senior Lender, the aggregate amount of its participation (if any, and without double counting) in all Utilisations outstanding under the Senior Facilities Agreement at the Enforcement Date (assuming all contingent liabilities which have become actual liabilities since the Enforcement Date to have been actual liabilities
at the Enforcement Date (but not including, for these purposes only, any interest that would have accrued from the Enforcement Date to the date of actual maturity in respect of those liabilities) and assuming any transfer of claims in respect of amounts outstanding under the Revolving Facility and each Ancillary Facility in accordance with the Senior Facilities Agreement which has taken place since the Enforcement Date to have taken place at the Enforcement Date) together with the aggregate amount of all accrued interest, fees and commission owed to it under the Senior Facilities Agreement and amounts owed to it by a Debtor in respect of any Ancillary Facility but excluding: |
(i) | any amount owed to it by a Debtor in respect of any Ancillary Facility
to the extent that that amount would not be outstanding but for a breach by |
(ii) | any amount owed to it by a Debtor in respect of any Ancillary Facility to the extent (and in the amount) that SFA Cash Cover has been provided by a Debtor in respect of that amount and is available to that Senior Lender
pursuant to the relevant SFA Cash Cover Document; and |
(iii) | any amount outstanding in respect of a Documentary Credit to the extent (and in the amount) that SFA Cash Cover has been provided by a Debtor in respect of that amount and is available to the relevant Senior Finance Party (as applicable) pursuant to the relevant SFA Cash Cover Document; |
(b) | in relation to a Senior Secured Notes Creditor, the Senior Secured Notes Liabilities owed by the Debtors and Security Grantors to that Senior Secured Notes Creditor; |
(c) | in
relation to a Hedge Counterparty: |
(i) | if that Hedge Counterparty has terminated or closed out any hedging transaction under any Hedging Agreement in accordance with the terms of this Agreement on or prior to the Enforcement Date, the amount, if any, payable to it under that Hedging Agreement in respect of that termination or close-out as of the date of termination or close-out (taking into account any interest accrued on that amount) to the extent that amount is unpaid at the Enforcement Date (that amount to be certified by the relevant Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement); and |
(ii) | if
that Hedge Counterparty has not terminated or closed out any hedging transaction under any Hedging Agreement on or prior to the Enforcement Date: |
(A) | if the relevant Hedging Agreement is based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction if the Enforcement Date was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(B) | if
the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction if |
(d) | in relation to a Pari Passu Creditor: |
(i) | in respect of any Pari Passu Debt in which it has a participation (other than Pari Passu Debt in the form of any notes), the aggregate amount of its participation (if any, and without double counting) in all utilisations outstanding under the relevant Pari Passu Debt Document at the Enforcement Date
(assuming all contingent liabilities which have become actual liabilities since the Enforcement Date had become actual liabilities at the Enforcement Date (but not including, for these purposes only, any interest that would have accrued from the Enforcement Date to the date of actual maturity in respect of those liabilities) and assuming any transfer of claims between Pari Passu Creditors under that Pari Passu Debt Document pursuant to any loss-sharing arrangement in such Pari Passu Debt Document which has taken place since the Enforcement Date had taken place at the Enforcement Date) together with the aggregate amount of all accrued interest, fees and commission owed to it under such Pari Passu Debt Document and amounts owed to it by a Debtor in respect of any Ancillary Facility entered into pursuant to such Pari Passu Debt Document but excluding: |
(A) | any
amount owed to it by a Debtor in respect of any Ancillary Facility to the extent that that amount would not be outstanding but for a breach by that Pari Passu Creditor of any provision of that Pari Passu Debt Document governing that Ancillary Facility; |
(B) | any amount owed to it by a Debtor in respect of any Ancillary Facility to the extent (and in the amount) that SFA Cash Cover has been provided by a Debtor in respect of that amount and is available to that Pari Passu Creditor pursuant to the relevant SFA Cash Cover Document; and |
(C) | any
amount outstanding in respect of a Documentary Credit to the extent (and in the amount) that SFA Cash Cover has been provided by a Debtor in respect of that amount and is available to the party it has been provided for pursuant to the relevant SFA Cash Cover Document; and |
(ii) | in respect of any Pari Passu Debt in the form of any notes held by such Pari Passu Creditor, the aggregate outstanding principal amount of all such Pari Passu Debt which are held by Pari Passu Creditors at the Enforcement Date. |
19.2 | Implementation
of equalisation |
19.3 | Equalisation |
19.4 | Turnover of enforcement proceeds |
(a) | the
Security Agent, any Senior Agent, any Pari Passu Debt Representative, any Senior Secured Notes Representative or Second Lien Representative is not entitled, for reasons of applicable law, to pay amounts received pursuant to the making of a demand under any guarantee, indemnity or other assurance against loss or the enforcement of the Transaction Security to the Senior Secured Creditors and/or the Second Lien Creditors but is entitled to distribute those amounts to Creditors (such Creditors, the “Receiving Creditors”) who, in |
(b) | the later of the Senior Secured Discharge Date and the Second Lien Discharge Date has not yet occurred (nor would occur after taking into account such payments), |
19.5 | Notification
of Exposure |
19.6 | Default in payment |
20. | REFINANCING OF PRIMARY CREDITOR LIABILITIES |
20.1 | Senior
Secured Creditor Liabilities Refinancing |
(a) | any
obligations incurred by any Debtor or other member of the Group pursuant to such refinancing or replacement of the Senior Lender Liabilities (“Senior Refinancing Lender Liabilities”), Pari Passu Debt Liabilities (“Pari Passu Debt Refinancing Liabilities”) or the Senior Secured Notes Liabilities (“Senior Secured Notes Refinancing Liabilities” and, together with any Senior Refinancing Lender Liabilities and Pari Passu Debt Refinancing Liabilities, the “Senior Secured Refinancing Liabilities”) will, to the extent so designated by the Company: |
(i) | in
the case of Senior Secured Refinancing Liabilities that are Senior Refinancing Loans, rank as Senior Lender Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(ii) | in the case of Senior Secured Refinancing Liabilities that are Senior Secured Notes, rank as Senior Secured Notes Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(iii) | in the case of Senior Secured Refinancing Liabilities that are
Pari Passu Debt, rank as Pari Passu Debt Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(iv) | in the case of Senior Secured Refinancing Liabilities that are Second Lien Liabilities, rank as Second Lien Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); and |
(v) | in the case of Senior Secured Refinancing Liabilities that are High Yield Liabilities, rank as High Yield Liabilities in the manner described
in Clause 2.1 (Creditor Liabilities); |
(b) | subject to Clause 20.6 (New Security), the Transaction Security Documents shall secure such Senior Secured Refinancing Liabilities (other than Senior Secured Refinancing Liabilities that are High Yield Liabilities) and in respect of such Transaction Security Documents and any new security granted by any Debtor, member of the Group or Security Grantor to secure such Senior Secured Refinancing Liabilities, such Senior Secured Refinancing Liabilities will: |
(i) | in
the case of Senior Secured Refinancing Liabilities that are Senior Refinancing Loans, rank as Senior Lender Liabilities in the manner described in Clause 2.2 (Transaction Security); |
(ii) | in the case of Senior Secured Refinancing Liabilities that are Senior Secured Notes, rank as Senior Secured Notes Liabilities in the manner described in Clause 2.2 (Transaction Security); |
(iii) | in
the case of Senior Secured Refinancing Liabilities that are Pari Passu Debt, rank as Pari Passu Debt Liabilities in the manner described in Clause 2.2 (Transaction Security); and |
(iv) | in the case of Senior Secured Refinancing Liabilities that are Second Lien Liabilities, rank as Second Lien Liabilities in the manner described in Clause 2.2 (Transaction Security); and |
(c) | this Agreement shall be construed to permit the assumption of any Senior
Secured Refinancing Liabilities and to give effect to the ranking set out in paragraphs (a) and (b) above, |
(i) | any trustee or representative of the creditors of such Senior Secured Refinancing Liabilities (a “Senior Refinancing Agent”), accedes to this Agreement in accordance with Clause 23.13 (Creditor Accession Undertaking) on the same terms as a Senior Agent, Senior Secured Notes Representative, Pari Passu Debt Representative or Second Lien Representative (as applicable); and |
(ii) | each
creditor in relation to such Senior Secured Refinancing Liabilities (that is not a Senior Refinancing Agent) accedes to this Agreement in accordance with Clause 23.13 (Creditor Accession Undertaking) or is deemed to accede to this Agreement pursuant to the terms of its relevant finance documents, in each case on the same terms as a Senior Creditor, Pari Passu Creditor, Senior Secured Notes Creditor or Second Lien Creditor (as applicable). |
20.2 | Second Lien Liabilities Refinancing |
(a) | any obligations incurred by any Debtor or member of the Group pursuant to such refinancing or replacement of the Second Lien Liabilities (“Second Lien
Refinancing Liabilities”) will, to the extent so designated by the Company: |
(i) | in the case of Second Lien Refinancing Liabilities that are Senior Refinancing Loans, rank as Senior Lender Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(ii) | in
the case of Second Lien Refinancing Liabilities that are Senior Secured Notes, rank as Senior Secured Notes Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(iii) | in the case of Second Lien Refinancing Liabilities that are Pari Passu Debt, rank as Pari Passu Debt Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(iv) | in the case of Second Lien Refinancing Liabilities that are Second Lien Liabilities,
rank as Second Lien Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); and |
(v) | in the case of Second Lien Refinancing Liabilities that are High Yield Liabilities, rank as High Yield Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(b) | subject to Clause 20.6 (New Security), the Transaction Security Documents shall secure such Second Lien Refinancing
Liabilities (other than Second Lien Refinancing Liabilities that are High Yield Liabilities) and in respect of such Transaction Security Documents and any new security granted by any Debtor, member of the Group or Security Grantor to secure such Second Lien Refinancing Liabilities, such Second Lien Refinancing Liabilities will: |
(i) | in the case of Second Lien Refinancing Liabilities that are Senior Refinancing Loans, rank as Senior Lender Liabilities in the manner described in Clause 2.2 (Transaction Security); |
(ii) | in
the case of Second Lien Refinancing Liabilities that are Senior Secured Notes, rank as Senior Secured Notes Liabilities in the manner described in Clause 2.2 (Transaction Security); |
(iii) | in the case of Second Lien Refinancing Liabilities that are Pari Passu Debt, rank as Pari Passu Debt Liabilities in the manner described in Clause 2.2 (Transaction Security); and |
(iv) | in the case of Second Lien Refinancing Liabilities that are Second Lien
Liabilities, rank as Second Lien Liabilities in the manner described in Clause 2.2 (Transaction Security); and |
(c) | this Agreement shall be construed to permit the assumption of any Second Lien Refinancing Liabilities and to give effect to the ranking set out in paragraphs (a) and (b) above, |
(i) | any
trustee or representative of the creditors of such Second Lien Refinancing Liabilities (a “Senior Refinancing Agent”), accedes to this Agreement in accordance with Clause 23.13 (Creditor Accession Undertaking) on the same terms as a Senior Agent, Senior Secured Notes Representative, Pari Passu Debt Representative or Second Lien Representative (as applicable); and |
(ii) | each creditor in relation to such Second Lien Refinancing Liabilities (that is not a Senior Refinancing Agent) accedes to this Agreement in accordance with Clause 23.13 (Creditor Accession Undertaking) or is deemed to accede to this Agreement pursuant
to the terms of its relevant finance documents, in each case on the same terms as a Senior Creditor, Pari Passu Creditor, Senior Secured Notes Creditor or Second Lien Creditor (as applicable). |
20.3 | High Yield Liabilities Refinancing |
(a) | to the extent permitted by the Debt Documents, the proceeds of issues of share capital by a HY Issuer or HY Borrower (as applicable)
or, to the extent not secured by the assets of, or guaranteed by, any Debtor (other than the HY Issuer and the HY Borrower) or any member of the Group, subordinated loans or other extensions of credit made to a HY Issuer or a HY Borrower by its Subordinated Creditors; |
(b) | with equity securities or, to the extent not secured by the assets of, or guaranteed by, any Debtor (other than the HY Issuer and the HY Borrower) or any member of the Group, debt securities of a HY Issuer or a HY Borrower; or |
(c) | (if prior to the Senior Lender
Discharge Date) in each case to the extent permitted by the Senior Facilities Agreement, (and if prior to the Senior Secured Notes Discharge Date) in each case to the extent permitted by the Senior Secured Notes Finance Documents, (and if prior to the Pari Passu Debt Discharge Date) in each case to the extent permitted by any Pari Passu Debt Documents, (and if prior to the Second Lien Loan Discharge Date) in each case to the extent permitted by any Second Lien Facilities Agreement and (if prior to the Second Lien Notes |
(i) | an issue by a HY Issuer of High Yield Notes; |
(ii) | High Yield Refinancing Loans; |
(iii) | Senior Refinancing Loans; |
(iv) | Second
Lien Refinancing Loans; |
(v) | an issue by a Senior Secured Notes Issuer of Senior Secured Notes; |
(vi) | an issue by a Second Lien Notes Issuer of Second Lien Notes; or |
(vii) | the incurrence of Pari Passu Debt, |
(A) | any
such High Yield Notes shall rank as High Yield Notes Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(B) | any such High Yield Refinancing Loans shall rank as High Yield Loan Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(C) | any such Senior Refinancing Loans shall rank as Senior Lender Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(D) | any
such Pari Passu Debt shall rank as Pari Passu Debt Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(E) | any such Second Lien Refinancing Loans shall rank as Second Lien Loan Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(F) | any such Second Lien Notes shall rank as Second Lien Notes Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); |
(G) | any
such Senior Secured Notes shall rank as Senior Secured Notes Liabilities in the manner described in Clause 2.1 (Creditor Liabilities); and |
(H) | subject to Clause 20.6 (New Security), the Transaction Security Documents shall secure such Senior Secured Notes, Pari Passu Debt, Senior Refinancing Loans, Second Lien Notes and/or Second Lien Refinancing Loans
and in respect of such Transaction Security Documents and any new security granted by any Debtor, Security Grantor or member of the Group to secure such Senior Secured Notes, Senior Refinancing Loans, Second Lien Notes, Second Lien Refinancing Loans and/or Pari Passu Debt, such Senior Secured Notes, Second Lien Notes, Senior Refinancing Loans, Second Lien Refinancing Loans and/or Pari Passu Debt will: |
(1) | in the case of Pari Passu Debt, rank as Pari Passu Debt Liabilities in the manner described in Clause 2.2 (Transaction Security); |
(2) | in
the case of Senior Refinancing Loans, rank as Senior Lender Liabilities in the manner described in Clause 2.2 (Transaction Security); |
(3) | in the case of Second Lien Refinancing Loans, rank as Second Lien Loan Liabilities in the manner described in Clause 2.2 (Transaction Security); |
(4) | in the case of Second Lien Notes, rank as Second Lien Notes Liabilities in the manner described in Clause 2.2 (Transaction Security);
and |
(5) | in the case of Senior Secured Notes, rank as Senior Secured Notes Liabilities in the manner described in Clause 2.2 (Transaction Security). |
20.4 | Further assurance |
20.5 | Release of Securities |
20.6 | New Security |
(a) | To
the extent that: |
(i) | any Senior Secured Refinancing Liabilities contemplated in Clause 20.1 (Senior Secured Creditor Liabilities Refinancing) that are Senior Refinancing Loans, Senior Secured Notes or Pari Passu Debt; or |
(ii) | any Liabilities contemplated in clauses 2.2 (Increase) and 2.5 (Additional Facilities) of the Senior Facilities Agreement (“Additional Senior Secured
Liabilities”), |
(b) | Notwithstanding
paragraph (a) above, to the extent permitted by applicable law (and, in the case of Additional Senior Secured Liabilities, the Senior Facilities Agreement), any Senior Secured Refinancing Liabilities that are Senior Refinancing Loans, Senior Secured Notes or Pari Passu Debt or Additional Senior Secured Liabilities (as the case may be) which do not benefit from the Initial |
(c) | To the extent that: |
(i) | any
Second Lien Refinancing Liabilities contemplated in Clause 20.2 (Second Lien Liabilities Refinancing) that are Second Lien Liabilities; or |
(ii) | any Liabilities contemplated in the “Increase” and “Additional Facilities” provisions of any Second Lien Facilities Agreement (“Additional Second Lien Liabilities”), |
(d) | Notwithstanding paragraph (c) above, to the extent permitted by applicable law (and, in the case of Additional Second Lien Liabilities, any Second Lien Finance Documents), any Second Lien Refinancing Liabilities that are Second Lien Liabilities or Additional Second Lien Liabilities (as the case may be) which do not
benefit from the Initial Second Lien Security Documents on a pari passu basis will nonetheless be deemed and treated for the purpose of this Agreement and Clause 18 (Application of Proceeds) as secured by the Initial Second Lien Security Documents and the Additional Second Lien Security Documents pari passu with other Liabilities which would otherwise have the same ranking as contemplated by Clause 20.2 (Second Lien Liabilities Refinancing) or the “Increase” and “Additional Facilities” provisions of any Second Lien Facilities Agreement (as the context requires). |
21. | THE
SECURITY AGENT |
21.1 | Appointment by Secured Parties |
(a) | Each Secured Party (other than the Security Agent) irrevocably appoints the Security Agent in accordance with the following provisions of this Clause 21 (The
Security Agent), to act as its agent, trustee, joint and several creditor or beneficiary of a parallel debt (as the case may be) under this Agreement and with respect to the Security Documents, and irrevocably authorises the Security Agent on its behalf to: |
(i) | execute each Security Document expressed to be executed by the Security Agent on its behalf; and |
(ii) | perform such duties and exercise such rights and powers under this Agreement and the Security Documents as are specifically delegated to the Security
Agent by the terms hereof or thereof, together with such rights, powers and discretions as are reasonably incidental hereto or thereto including enforcing the Transaction Security in accordance with the terms of this Agreement and the relevant Transaction Security Document. |
(b) | Each Secured Party confirms that: |
(i) | the Security Agent has authority to accept on its behalf the terms of any reliance letter or engagement letter relating to any reports or letters provided in connection with the Secured Debt Documents or the transactions
contemplated by the Secured Debt Documents, to bind it in respect of those reports or letters and to sign that reliance letter or engagement letter on its behalf and to the extent that reliance letter or engagement letter has already been entered into ratifies those actions; and |
(ii) | it accepts the terms and qualifications set out in that reliance letter or engagement letter. |
(c) | The Security Agent shall have only those duties, obligations and responsibilities which are expressly specified in this Agreement and/or the Security Documents
to which it is a party (and no others shall be implied). The Security Agent’s duties under this Agreement and/or the Security Documents to which it is a party are solely of a mechanical and administrative nature. |
(d) | The Security Agent is released from any applicable restrictions on entering into any transaction as a representative of: |
(i) | two or more principals contracting with each other; and |
(ii) | one
or more principals with whom it is contracting in its own name. |
21.2 | Trust |
(a) | The Security Agent declares that it shall hold the Security Property on trust for the Secured Parties on the terms contained in this Agreement. |
(b) | Each
Party agrees that the Security Agent shall have only those duties, obligations and responsibilities expressly specified in this Agreement or in the Security Documents to which it is expressed to be a party (and no others shall be implied). |
21.3 | Parallel Debt (Covenant to pay the Security Agent) |
(a) | In this Clause 21.3 (Parallel Debt (Covenant to pay the Security Agent)): |
(b) | Each Debtor irrevocably and unconditionally undertakes to pay to the Security Agent, as an independent and separate creditor, an amount equal to each Secured Party Claim owed by such Debtor on the due date of such Secured Party Claim (the “Security Agent Claims”). |
(c) | Each
Security Agent Claim is created on the understanding that the Security Agent must: |
(i) | share the proceeds of each Security Agent Claim with the other Secured Parties; and |
(ii) | pay those proceeds to the Secured Parties in accordance with Clause 18 (Application of Proceeds). |
(d) | The
Security Agent may enforce performance of any Security Agent Claim in its own name as an independent and separate right. This includes any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceeding. |
(e) | Each Secured Party must, at the request of the Security Agent, (i) enforce its Secured Party Claim and (ii) perform any act required in connection with the enforcement of any Security Agent Claim. This includes joining in any proceedings as co-claimant with the Security Agent. |
(f) | Unless
the Security Agent fails to enforce a Security Agent Claim within a reasonable time after its due date, a Secured Party may not take any action to enforce the corresponding Secured Party Claim unless it is requested to do so by the Security Agent. |
(g) | Each Debtor irrevocably and unconditionally waives any right it may have to require a Secured Party to join in any proceedings as co-claimant with the Security Agent in respect of any Security Agent
Claim. |
(h) | Discharge by a Debtor of a Secured Party Claim will discharge the corresponding Security Agent Claim in the same amount. |
(i) | Discharge by a Debtor of a Security Agent Claim will discharge the corresponding Secured Party Claim in the same amount. |
(j) | The aggregate amount of the Security Agent Claims will
never exceed the aggregate amount of Secured Party Claims. |
(k) | A defect affecting a Security Agent Claim against a debtor will not affect any Secured Party Claim. |
(l) | A defect affecting a Secured Party Claim against a debtor will not affect any Security Agent Claim. |
(m) | If the Security Agent returns to any Debtor,
whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Security Agent. |
(n) | Without limiting or affecting the Security Agent’s rights against any Debtor (whether under this Clause 21.3 (Parallel Debt (Covenant to pay the Security Agent)) or under any other provision of the Secured Debt Documents or High Yield Finance Documents), the Security Agent agrees with each other Secured Party (on a several and divided basis) that it will not exercise its rights in respect of the Security Agent Claims except with the consent
of the Instructing Group. However, for the avoidance of doubt, nothing in the previous sentence shall in any way limit the Security Agent’s right to act in the protection or preservation of rights under any Transaction Security Document or to enforce any Transaction Security as contemplated by this Agreement, the relevant Transaction Security Document or any other Secured Debt Documents or High Yield Finance Documents (or to do any act reasonably incidental to the foregoing). |
21.4 | No independent power |
21.5 | Instructions to Security Agent and exercise of discretion |
(a) | Subject
to paragraphs (e) and (f) below, the Security Agent shall act in accordance with any instructions given to it by an Instructing Group or, if so instructed by an Instructing Group, refrain from exercising any right, power, authority or discretion vested in it as Security Agent or as holder of a Security Agent Claim and shall be entitled to assume that (i) any instructions received by it from an Agent, the Creditors or a group of Creditors are duly given in accordance with the terms of the Debt Documents and (ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked. |
(b) | The Security Agent shall be entitled to request instructions, or clarification of any direction, from an Instructing Group (or
from the Majority Second Lien Creditors (to the extent it is entitled to give instructions to the Security Agent pursuant to Clause 16 (Enforcement of Transaction Security)) as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Agent may refrain from acting unless and until those instructions or clarification are received by it. |
(c) | Save in the case of decisions stipulated to be a matter for any other Creditor or group of Creditors under this Agreement (including Clause 16 (Enforcement of Transaction Security)) and unless a contrary intention appears in this Agreement,
any instructions given to the Security Agent by an Instructing Group shall override any conflicting instructions given by any other Parties. |
(d) | Any instructions or votes given or to be given to the Security Agent by any Creditor shall be provided by that Creditor’s Agent in relation to the relevant Liabilities or, in the case of Hedging Liabilities, by the relevant Hedge Counterparty and the Security Agent shall be entitled to communicate with any Creditor or Creditors through such Agent and shall have no obligation to communicate with any Creditor or Creditors (other than Hedge Counterparties) other than through such Creditor(s’) Agent. |
(e) | Paragraph
(a) above shall not apply: |
(i) | where a contrary indication appears in this Agreement; |
(ii) | where this Agreement requires the Security Agent to act in a specified manner or to take a specified action; |
(iii) | in respect of any provision which protects the Security Agent’s own position in its personal capacity as opposed
to its role of Security Agent for the Secured Parties including, without limitation, the provisions set |
(iv) | in respect of the exercise of the Security Agent’s discretion to exercise
a right, power or authority under any of: |
(A) | Clause 17.1 (Non-Distressed Disposals); |
(B) | Clause 18.1 (Order of Application of Group Recoveries); |
(C) | Clause 18.2 (Prospective liabilities); |
(D) | Clause
18.3 (Treatment of SFA Cash Cover and Senior Lender Cash Collateral); and |
(E) | Clause 18.6 (Permitted Deductions). |
(f) | If giving effect to instructions given by an Instructing Group would (in the Security Agent’s good faith opinion) have an effect equivalent to an Intercreditor Amendment, the Security Agent shall not act in accordance with those instructions unless Consent to it so acting is obtained from each Party (other than the
Security Agent) whose Consent would have been required in respect of that Intercreditor Amendment. |
(g) | In exercising any discretion to exercise a right, power or authority under this Agreement where either: |
(i) | it has not received any instructions from an Instructing Group as to the exercise of that discretion; or |
(ii) | the
exercise of that discretion is subject to paragraph (e)(iv) above, |
(A) | other than where paragraph (B) below applies, do so having regard to the interests of all the Secured Parties; or |
(B) | if (in its opinion) there is a Creditor Conflict in relation to the matter in respect of which the discretion is to be exercised: |
(1) | prior
to the Senior Secured Discharge Date, do so having regard only to the interests of all the Senior Secured Creditors; |
(2) | prior to the Second Lien Discharge Date but after the Senior Secured Discharge Date, do so having regard only to the interests of the Second Lien Creditors; or |
(3) | prior
to the High Yield Discharge Date but after the Second Lien Discharge Date and Senior Secured Discharge Date, do so having regard only to the interests of the High Yield Creditors. |
21.6 | Security Agent’s Actions |
21.7 | Security Agent’s discretions |
(a) | assume (unless it has received actual notice to the contrary from a Hedge Counterparty or from one of the Agents) that (i) no Default has occurred and no Debtor or Security Grantor is in breach of or default under its obligations under any of the Debt Documents and (ii) any right, power, authority or discretion vested by any Debt Document in any person has not been exercised; |
(b) | if
it receives any instructions or directions under Clause 16 (Enforcement of Transaction Security) to take any action in relation to the Transaction Security, assume that all applicable conditions under the Debt Documents for taking that action have been satisfied; |
(c) | engage, pay for and rely on the advice or services of any legal advisers, accountants, tax advisers, surveyors or other experts (whether obtained by the Security Agent or by any other Secured Party) whose advice or services may at any time seem necessary, expedient or desirable; |
(d) | act
under the Debt Documents through its personnel and agents; |
(e) | rely upon any communication or document believed by it to be genuine and, as to any matters of fact which might reasonably be expected to be within the knowledge of a Secured Party, any Creditor, a Debtor or Security Grantor, upon a certificate signed by or on behalf of that person; and |
(f) | refrain
from acting in accordance with the instructions of any Party (including bringing any legal action or proceeding arising out of or in connection with the Debt Documents) until it has received any indemnification and/or security that it may in its discretion require (whether by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in so acting. |
21.8 | Security Agent’s obligations |
(a) | forward to (i) each Agent and (ii)
each Hedge Counterparty the contents of any notice or document received by it from any Debtor or any Security Grantor under any Debt Document; |
(b) | forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party provided that, except where a Debt Document expressly provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party; |
(c) | inform
(i) each Agent and (ii) each Hedge Counterparty of the occurrence of any Default or any default by a Debtor or a Security Grantor in the due performance of or compliance with its obligations under any Debt Document of which the Security Agent has received notice from any other Party; and |
(d) | to the extent that a Party (other than the Security Agent) is required to calculate a Common Currency Amount, and upon a request by that Party, notify that Party of the relevant Security Agent’s Spot Rate of Exchange. |
21.9 | Excluded obligations |
(a) | be bound to enquire as to (i) whether or not any Default has occurred or (ii) the performance, default or any breach by a Debtor or a Security Grantor of its obligations under any of the Debt Documents; |
(b) | be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account; |
(c) | be
bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other information if disclosure would, or might in its reasonable opinion, constitute a breach of any law or be a breach of fiduciary duty; and |
(d) | have or be deemed to have any relationship of trust or agency with, any Debtor. |
21.10 | Exclusion
of liability |
(a) | the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Security Agent or any other person in or in connection with any Debt Document or the transactions contemplated in the Debt Documents, or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document; |
(b) | the
legality, validity, effectiveness, adequacy or enforceability of any Debt Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(c) | any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Debt Documents, the Security Property or otherwise, whether in accordance with an instruction from an Agent or otherwise unless directly caused by its gross negligence or wilful misconduct; |
(d) | the
exercise of, or the failure to exercise, any judgement, discretion or power given to it by or in connection with any of the Debt Documents, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, the Debt Documents or the Security Property unless directly caused by its gross negligence or wilful misconduct; or |
(e) | any shortfall which arises on the enforcement or realisation of the Security Property. |
21.11 | No proceedings |
21.12 | Own responsibility |
(a) | the financial condition, status and nature of each Debtor, each member of the Group and each Security Grantor; |
(b) | the legality,
validity, effectiveness, adequacy and enforceability of any Debt Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(c) | whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Debt Document, the Security Property, the transactions contemplated by the Debt Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(d) | the
adequacy, accuracy and/or completeness of any information provided by the Security Agent or by any other person under or in connection with any Debt Document, the transactions contemplated by any Debt Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document; and |
(e) | the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property, |
21.13 | No responsibility to perfect Transaction Security |
(a) | require the deposit with it of any deed or document certifying, representing or constituting the title of any Debtor or any Security Grantor to any of the Charged Property; |
(b) | obtain
any licence, Consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Debt Documents or the Transaction Security; |
(c) | register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any jurisdiction or to give notice to any person of the execution of any of the Debt Documents
or of the Transaction Security; |
(d) | take, or to require any of the Debtors or the Security Grantor to take, any steps to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under the laws of any jurisdiction; or |
(e) | require any further assurances in relation to any of the Security Documents. |
21.14 | Insurance
by Security Agent |
(a) | The Security Agent shall be under no obligation to insure any of the Charged Property, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Debt Documents. The Security Agent shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance. |
(b) | Where the Security Agent is named on any insurance policy as an insured party and/or loss payee, the Security Agent shall
not be responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless an Agent shall have requested it to do so in writing and the Security Agent shall have failed to do so within 14 Business Days after receipt of that request. |
21.15 | Custodians and nominees |
21.16 | Acceptance of title |
21.17 | Refrain from illegality |
21.18 | Business with the Debtors or Security Grantor |
21.19 | Winding up of trust |
(a) | the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Security Documents; and |
(b) | any
Retiring Security Agent shall release, without recourse or warranty, all of its rights under each of the Security Documents. |
21.20 | Powers supplemental |
21.21 | Trustee division separate |
(a) | In
acting as trustee or agent for the Secured Parties, the Security Agent shall be regarded as acting through its trustee or agency division (as applicable) which shall be treated as a separate entity from any of its other divisions or departments. |
(b) | If information is received by another division or department of the Security Agent, it may be treated as confidential to that division or department and the Security Agent shall not be deemed to have notice of it. |
21.22 | Disapplication |
21.23 | Intra-Group Lenders, Subordinated Creditors, Debtors and Security Grantors: Power of Attorney |
22. | CHANGE OF SECURITY AGENT |
22.1 | Resignation
of the Security Agent |
(a) | The Security Agent may resign and appoint one of its Affiliates as successor by giving notice to the Company, the Senior Secured Creditors, the Second Lien Creditors, the High Yield Representative(s) and the Unsecured Representative(s). |
(b) | Alternatively the Security Agent may resign by giving notice to the other Parties in which case the Majority Senior Lenders, the Senior Secured Notes Representative(s), the Pari Passu
Debt Representative(s) and the Majority Second Lien Creditors may, with the approval of the Company (acting reasonably), appoint a successor Security Agent. |
(c) | If the Majority Senior Lenders, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s) and the Majority Second Lien Creditors have not appointed a successor Security Agent in accordance with paragraph (b) above within 30 days after the notice of resignation was given, the Security Agent (after |
(d) | The retiring Security Agent (the “Retiring Security Agent”) shall, at its own cost: |
(i) | make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security
Agent under the Debt Documents; and |
(ii) | enter into and deliver to the successor Security Agent those documents and effect any registrations as may be required for the transfer or assignment of all of its rights and benefits under the Debt Documents to the successor Security Agent. |
(e) | A Debtor must, at its own reasonable cost, take any action and enter into and deliver any document which is reasonably required by the Retiring Security Agent to ensure that a Security Document provides for effective and perfected Security in favour
of any successor Security Agent (including any documents or evidence reasonably required to ensure that the security position of the Secured Parties is not materially adversely affected by such resignation). |
(f) | The Security Agent’s resignation notice shall only take effect upon (i) the appointment of a successor and (ii) the transfer of all of the Security Property to that successor. |
(g) | Upon the appointment of a successor, the Retiring Security Agent shall be discharged from any further obligation in respect of the Debt Documents
(other than its obligations under paragraph (b) of Clause 21.19 (Winding up of trust) and under paragraph (d) above) but shall, in respect of any act or omission by it whilst it was the Security Agent, remain entitled to the benefit of Clauses 21 (The Security Agent), 25.1 (Debtors’ indemnity) and 25.3 (Primary Creditors’ indemnity). Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party. |
(h) | The
Majority Senior Lenders, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s) and the Majority Second Lien Creditors (or, after the Second Lien Discharge Date, the High Yield Representative(s)) may, with the approval of the Company (acting reasonably), by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above but the |
(i) | Provided no Default is continuing, the Company may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above and the Company shall appoint a successor Security Agent but the cost referred to in paragraph (d) above shall be for the account of the Company or any other Debtor. |
22.2 | Delegation |
(a) | The
Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Debt Documents. |
(b) | That delegation may be made upon any terms and conditions (including the power to sub-delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties and it shall not be bound to supervise, or be in any way responsible for any loss incurred by reason of any misconduct or default on the part of any such
delegate or sub-delegate. |
22.3 | Additional Security Agents |
(a) | The Security Agent may, with the approval of the Company (acting reasonably), at any time appoint (and subsequently remove), to the extent legally permitted, any person to act as a separate trustee or agent or as a co-trustee or co-agent jointly with it (i) if it in good faith considers that appointment to be in the interests of the Secured Parties or (ii) for the purposes of conforming
to any legal requirements, restrictions or conditions which the Security Agent deems to be relevant (acting reasonably) or (iii) for obtaining or enforcing any judgment in any jurisdiction, and the Security Agent shall give prior notice to the Company and each of the Agents and each Hedge Counterparty of that appointment. |
(b) | Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Agent by this Agreement) and the duties and obligations that are conferred or imposed by the instrument of appointment. |
23. | CHANGES
TO THE PARTIES |
23.1 | Assignments and transfers |
23.2 | Change
of Subordinated Creditor |
(a) | Subject to Clause 11.1 (Restriction on Payment: Subordinated Liabilities) and paragraph (b) below, a Subordinated Creditor may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of Subordinated Liabilities if any assignee or transferee (if not already a Party as a Subordinated Creditor) has executed and delivered to the Security Agent a Creditor Accession Undertaking agreeing to be bound by all the terms of this Agreement as if it had originally been a Party as a Subordinated Creditor (or has otherwise subordinated the indebtedness owing to it by any Debtor (which would constitute Subordinated Liabilities) to the Liabilities
owing to the Primary Creditors in a manner satisfactory to the Primary Creditors). |
(b) | Despite paragraph (a) above, on and from the first High Yield Notes Issue Date, the HY Issuer may not assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of Subordinated Liabilities to the extent relating to any Proceeds Loan Agreement until after the High Yield Discharge Date or other than with the Consent of (prior to the Senior Lender Discharge Date) the Senior Agent, (after any Second Lien Debt has been incurred and before the Second Lien Discharge Date) the Second Lien Representative(s), (after any Pari Passu Debt has been incurred and before the Pari Passu Debt Discharge Date) the Pari Passu Debt Representative(s),
(after the Senior Secured Notes Issue Date and prior to the Senior Secured Notes Discharge Date) the Senior Secured Notes Indenture(s) and as contemplated in the High Yield Notes Indenture. |
23.3 | Change of Senior Lender, Pari Passu Creditors, Second Lien Lender and Noteholders |
(a) | A Senior Lender or Pari Passu Creditor (other than a Pari Passu Debt Representative)
may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities if: |
(i) | that assignment or transfer is in accordance with the terms of the Senior Facilities Agreement or the Pari Passu Debt Documents (as applicable); and |
(ii) | any assignee or transferee has (if not already a Party as a Senior Lender or Pari Passu Creditor (as applicable)) acceded to this Agreement as a |
(b) | A Second Lien Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities if: |
(i) | that
assignment or transfer is in accordance with the terms of the relevant Second Lien Facilities Agreement; and |
(ii) | any assignee or transferee has (if not already a Party as a Second Lien Lender) acceded to this Agreement as a Second Lien Lender pursuant to Clause 23.13 (Creditor Accession Undertaking). |
(c) | A High Yield Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities
if: |
(i) | that assignment or transfer is in accordance with the terms of the relevant High Yield Facilities Agreement; and |
(ii) | any assignee or transferee has (if not already a Party as a High Yield Lender) acceded to this Agreement as a High Yield Lender pursuant to Clause 23.13 (Creditor Accession Undertaking). |
(d) | An
Unsecured Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities if: |
(i) | that assignment or transfer is in accordance with the terms of the relevant Unsecured Facilities Agreement; and |
(ii) | any assignee or transferee has (if not already a Party as a High Yield Lender) acceded to this Agreement as an Unsecured Lender pursuant to Clause 23.13 (Creditor Accession Undertaking). |
(e) | Any
Senior Secured Noteholder, Second Lien Noteholder, High Yield Noteholder or Unsecured Noteholder may assign, transfer or novate any of its rights and obligations to any person without the need for such person to execute and deliver to the Security Agent a duly completed Creditor Accession Undertaking, provided that such person is subject to the terms and conditions of this Agreement as provided under the terms of the relevant Notes Indenture. |
23.4 | Change
of Hedge Counterparty |
23.5 | Change of Agent |
23.6 | New Pari Passu Creditors and Pari Passu Debt Representatives |
(a) | In order for indebtedness in respect of any issuance of public debt securities to constitute “Pari Passu Debt” for the purposes of this Agreement, (i) the trustee in
respect of those debt securities shall accede to this Agreement as the Pari Passu Debt Representative in relation to that Pari Passu Debt pursuant to Clause 23.13 (Creditor Accession Undertaking) and (ii) the instrument constituting or evidencing such Pari Passu Debt must be governed by English or New York law and state that the document and the Pari Passu Debt constituted or evidenced thereby is subject to the terms of this Agreement, and the Senior Secured Creditors in respect of the Senior Secured Liabilities must be given (or have as a matter of law) third party beneficiary rights in respect of such statement. |
(b) | In order for indebtedness under any other loan or credit or debt facility to constitute
“Pari Passu Debt” for the purposes of this Agreement: |
(i) | each creditor (or its Pari Passu Debt Representative on its behalf) in respect of that loan or credit or debt facility shall accede to this Agreement as a Pari Passu Creditor; and |
(ii) | the facility agent in respect of that loan or credit or debt facility shall accede to this Agreement as the Pari Passu Debt Representative in relation to that loan or credit or debt facility pursuant to Clause 23.13 (Creditor Accession Undertaking). |
(c) | No
creditor shall be entitled to share in any of the Transaction Security or in the benefit of any provisions of this Agreement as a Pari Passu Creditor unless such |
23.7 | New Second Lien Lenders |
(a) | In
order for indebtedness under any other loan or credit or debt facility (other than any Second Lien Notes) to constitute “Second Lien Loan Liabilities” for the purposes of this Agreement: |
(i) | each creditor (or its Second Lien Agent on its behalf) in respect of that loan or credit or debt facility shall accede to this Agreement as a Second Lien Lender; and |
(ii) | the facility agent in respect of that loan or credit or debt facility shall accede to this Agreement as the Second Lien Agent in relation to that loan or credit or debt
facility pursuant to Clause 23.13 (Creditor Accession Undertaking). |
(b) | No creditor shall be entitled to share in any of the Transaction Security or in the benefit of any provisions of this Agreement as a Second Lien Lender unless such creditor (or, as the case may be, the agent in relation to the indebtedness held by such creditor) has acceded to this Agreement in accordance with paragraph (a) above. |
23.8 | New High Yield Lenders |
(a) | In
order for indebtedness under any loan or credit or debt facility (other than any High Yield Notes) to constitute “High Yield Loan Liabilities” for the purposes of this Agreement: |
(i) | each creditor (or its High Yield Agent on its behalf) in respect of that loan or credit or debt facility shall accede to this Agreement as a High Yield Lender; and |
(ii) | the facility agent in respect of that loan or credit or debt facility shall accede to this Agreement as the High Yield Agent in relation to that loan or credit or debt facility
pursuant to Clause 23.13 (Creditor Accession Undertaking). |
(b) | No creditor shall be entitled to share in the benefit of any provisions of this Agreement as a High Yield Lender unless such creditor (or, as the case may be, the agent in relation to the indebtedness held by such creditor) has acceded to this Agreement in accordance with paragraph (a) above. |
23.9 | New
Unsecured Lenders |
(a) | In order for indebtedness under any other loan or credit or debt facility (other than any Unsecured Notes) to constitute “Unsecured Loan Liabilities” for the purposes of this Agreement: |
(i) | each creditor (or its Unsecured Agent on its behalf) in respect of that loan or credit or debt facility shall accede to this Agreement as an Unsecured Lender; and |
(ii) | the
facility agent in respect of that loan or credit or debt facility shall accede to this Agreement as the Unsecured Agent in relation to that loan or credit or debt facility pursuant to Clause 23.13 (Creditor Accession Undertaking). |
(b) | No creditor shall be entitled to share in the benefit of any provisions of this Agreement as an Unsecured Lender unless such creditor (or, as the case may be, the agent in relation to the indebtedness held by such creditor) has acceded to this Agreement in accordance with paragraph (a) above. |
23.10 | Change
of Intra‑Group Lender |
23.11 | New Intra‑Group Lender |
23.12 | New
Ancillary Facility Lender |
23.13 | Creditor
Accession Undertaking |
(a) | any Party ceasing entirely to be a Creditor shall be discharged from further obligations towards the Security Agent and other Parties under this Agreement and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); |
(b) | as
from that date, the replacement or new Creditor shall assume the same obligations and become entitled to the same rights, as if it had been an original Party in the capacity specified in the Creditor Accession Undertaking; and |
(c) | any new Ancillary Facility Lender (which is an Affiliate of a Senior Lender or a Pari Passu Creditor) shall also become party to the Senior Facilities Agreement or relevant Pari Passu Debt Document as an Ancillary Facility Lender and shall assume the same obligations and become entitled to the same rights as if it had been an original party to the Senior Facilities Agreement or relevant Pari Passu Debt Document as an Ancillary Facility Lender. |
23.14 | Accession
of Unsecured Notes Trustee |
(a) | The Company shall procure that, on or prior to any Unsecured Notes Issue Date relating to Unsecured Notes, the relevant Unsecured Notes Trustee (and, if such entity ceases to act as trustee in relation to the Unsecured Notes for any reason, any successor or other person which is appointed or acts as trustee under the relevant Unsecured Notes Indenture) shall promptly complete, sign and deliver |
(b) | Each Party (other than the relevant proposed trustee under paragraph (a) above irrevocably authorises the Security Agent to execute on its behalf any Creditor
Accession Undertaking which has been duly completed and signed on behalf of that person. |
23.15 | Accession of High Yield Notes Trustee |
(a) | The Company shall procure that, on or prior to any High Yield Notes Issue Date, the relevant High Yield Notes Trustee (and, if such entity ceases to act as trustee in relation to the High Yield Notes for any reason, any successor or other person which is appointed or acts as trustee under the relevant High Yield
Notes Indenture) shall promptly complete, sign and deliver to the Security Agent a Creditor Accession Undertaking under which such High Yield Notes Trustee agrees to be bound by this Agreement as a High Yield Notes Trustee as if it had originally been a Party in such capacity. In connection with the foregoing, the Security Agent shall make such changes to the terms hereof relating to the rights and duties of such High Yield Notes Trustee and any other Party as are required by such High Yield Notes Trustee without the Consent of any other Party provided that such changes would not have a material adverse effect on the other Parties. |
(b) | Each
Party (other than the relevant proposed trustee under paragraph (a) above) irrevocably authorises the Security Agent to execute on its behalf any Creditor Accession Undertaking which has been duly completed and signed on behalf of that person. |
23.16 | Accession of Second Lien Notes Trustee |
(a) | The Company shall procure that, on or prior to any Second Lien Notes Issue Date, the relevant Second Lien Notes Trustee (and, if such entity ceases to act
as trustee in relation to the Second Lien Notes for any reason, any successor or other person which is appointed or acts as trustee under the relevant Second Lien Notes Indenture) shall promptly complete, sign and deliver to the Security Agent a Creditor Accession Undertaking under which such Second Lien Notes Trustee agrees to be bound by this Agreement as a Second Lien Notes Trustee as if it had originally been a Party in such capacity. In connection with the foregoing, the |
(b) | Each Party (other than the relevant proposed trustee under paragraph (a) above) irrevocably authorises the Security Agent to execute on its behalf any Creditor Accession Undertaking which has been duly completed and signed on behalf of that person. |
23.17 | Accession
of Senior Secured Notes Trustee |
(a) | The Company shall procure that, on or prior to any Senior Secured Notes Issue Date, the relevant Senior Secured Notes Trustee (and, if such entity ceases to act as trustee in relation to the Senior Secured Notes for any reason, any successor or other person which is appointed or acts as trustee under the relevant Senior Secured Notes Indenture) shall promptly complete, sign and deliver to the Security Agent a Creditor Accession Undertaking under which such Senior Secured Notes Trustee agrees to be bound by this Agreement as a Senior Secured
Notes Trustee as if it had originally been a Party in such capacity. In connection with the foregoing, the Security Agent shall make such changes to the terms hereof relating to the rights and duties of such Senior Secured Notes Trustee and any other Party as are required by such Senior Secured Notes Trustee without the Consent of any other Party provided that such changes would not have a material adverse effect on the other Parties. |
(b) | Each Party (other than the relevant proposed trustee under paragraph (a) above) irrevocably authorises the Security Agent to execute on its behalf any Creditor Accession Undertaking which has been duly completed and signed on behalf of that person. |
23.18 | New
Debtor or Security Grantor |
(a) | If any member of the Group, Senior Borrower, Second Lien Borrower, borrower or issuer of Pari Passu Debt, Senior Secured Notes Issuer, Second Lien Notes Issuer, Permitted Affiliate Parent, Subordinated Creditor (in its capacity as grantor of Security over any Subordinated Funding, HY Issuer, HY Borrower, Unsecured Issuer or Unsecured Borrower: |
(i) | incurs any Liabilities (other than Intra-Group Liabilities); or |
(ii) | gives
any Security, guarantee, indemnity or other assurance against loss in respect of any of such Liabilities, |
(b) | If any Affiliate of a Debtor becomes a borrower of an Ancillary Facility in accordance with the Senior Facilities Agreement or any Pari Passu Debt Document, the relevant Debtor shall procure that its Affiliate accedes to this Agreement as a Debtor no later than contemporaneously with the date on which it becomes a borrower. |
(c) | If
any Affiliate of the Company guarantees any Senior Lender Liabilities, Senior Secured Notes Liabilities, Pari Passu Debt Liabilities or Second Lien Liabilities, the Company shall procure that such Affiliate accedes to this Agreement as a Debtor no later than contemporaneously with the date on which it provides such guarantee. |
(d) | With effect from the date of acceptance by the Security Agent of a Debtor/Security Grantor Accession Deed duly executed and delivered to the Security Agent by the new Debtor or new Security Grantor (together with any board resolutions, opinions or other
documents or evidence that the Security Agent may require) or, if later, the date specified in the Debtor/Security Grantor Accession Deed, the new Debtor or new Security Grantor, as applicable shall assume the same obligations and become entitled to the same rights as if it had been an original Party as a Debtor or Security Grantor. |
23.19 | Additional parties |
(a) | Each of the Parties appoints the Security Agent to receive and execute on its behalf each Debtor/Security Grantor Accession Deed and Creditor Accession Undertaking delivered
to the Security Agent and the Security Agent shall, as soon as reasonably practicable after receipt by it, sign and accept the same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Agreement or, where applicable, by the Senior Facilities Agreement or any Second Lien Facilities Agreement. |
(b) | In the case of a Creditor Accession Undertaking delivered to the Security Agent by any new Ancillary Facility Lender (which is an Affiliate of a Senior Lender or Pari Passu Creditor (as applicable)) or Pari Passu Creditor (as applicable): |
(i) | the
Security Agent shall, as soon as practicable after signing and accepting that Creditor Accession Undertaking in accordance with paragraph (a) above, deliver that Creditor Accession Undertaking to the Senior Agent or Pari Passu Debt Representative; and |
(ii) | the Senior Agent or Pari Passu Debt Representative (as applicable) shall, as soon as practicable after receipt by it, sign and accept that Creditor Accession Undertaking if it appears on its face to have been completed, executed and delivered in the form contemplated by this Agreement. |
23.20 | Resignation
of a Debtor |
(a) | The Company may request that a Debtor ceases to be a Debtor by delivering to the Security Agent a Debtor Resignation Request. |
(b) | The Security Agent shall accept a Debtor Resignation Request and notify the Company and each other Party of its acceptance if: |
(i) | the
Company has confirmed that no Event of Default is continuing or would result from the acceptance of the Debtor Resignation Request; |
(ii) | to the extent that the Senior Lender Discharge Date has not occurred, the Senior Agent notifies the Security Agent that that Debtor is not, or has ceased to be, or will cease to be concurrently with such resignation, a Senior Borrower or a Senior Guarantor; |
(iii) | to the extent that the Pari Passu Debt Discharge Date has not occurred, the Pari Passu Debt Representative(s) notifies the Security
Agent that that Debtor is not, or has ceased to be, or will cease to be concurrently with such resignation, a borrower or an issuer of Pari Passu Debt or a Pari Passu Debt Guarantor; |
(iv) | each Hedge Counterparty notifies the Security Agent that that Debtor is not or will cease to be concurrently with such resignation under actual or contingent obligations to that Hedge Counterparty in respect of the Hedging Liabilities; |
(v) | to the extent that the Senior Secured Notes Discharge Date has not occurred, the Senior Secured Notes Representative(s)
notifies the Security Agent that that Debtor is not, or has ceased to be, or will cease to be concurrently with such resignation, a Senior Secured Notes Issuer or Senior Secured Notes Guarantor; |
(vi) | to the extent that the Second Lien Loan Discharge Date has not occurred, the Second Lien Agent notifies the Security Agent that that Debtor is not, |
(vii) | to the extent that the Second Lien Notes Discharge Date has not occurred, the Second Lien Notes Trustee notifies the Security Agent that the Debtor is not, or has ceased to be, or will cease to be concurrently with such resignation, a Second Lien Notes Issuer or a Second Lien Guarantor; |
(viii) | to the extent the High Yield Discharge Date has not occurred, the High Yield Representative(s) notifies the Security Agent that the Debtor is not, or has ceased
to be, or will cease to be concurrently with such resignation, a borrower or an issuer or a High Yield Guarantor; |
(ix) | to the extent the Unsecured Discharge Date has not occurred, the Unsecured Representative(s) notifies the Security Agent that the Debtor is not, or has ceased to be, or will cease to be concurrently with such resignation, a borrower or an issuer or an Unsecured Guarantor; and |
(x) | the Company confirms that Debtor is under no actual
or contingent obligations in respect of the Intra-Group Liabilities. |
(c) | Upon notification by the Security Agent to the Company of its acceptance of the resignation of a Debtor, that person shall cease to be a Debtor and shall have no further rights or obligations under this Agreement as a Debtor. |
23.21 | Resignation of Creditors |
(a) | with
respect to a Senior Lender, on the first date on which all Senior Lender Liabilities owed to that Senior Lender have been fully and finally discharged to the satisfaction of the Senior Agent (acting reasonably), whether or not as a result of an enforcement, and that Senior Lender (in that capacity) is under no further obligation to provide financial accommodation to any of the Debtors under the Senior Finance Documents, that Senior Lender shall cease automatically to be a Party as a Senior Lender; |
(b) | with respect to a Senior Secured Notes Creditor, on the first date on which all Senior Secured Notes Liabilities owed to that Senior Secured Notes Creditor have been fully and finally discharged to the satisfaction of the relevant Senior Secured Notes
Representative (acting reasonably), that Senior Secured Notes Creditor shall cease automatically to be a Party as a Senior Secured Notes Creditor; |
(c) | with respect to a Pari Passu Creditor, on the first date on which all Pari Passu Debt owed to that Pari Passu Creditor has been fully and finally discharged in cash to the satisfaction of the relevant Pari Passu Debt Representative (acting reasonably), whether or not as a result of an enforcement,
and that Pari Passu Creditor is under no further obligation to provide financial accommodation to any of the Debtors under the Pari Passu Debt Documents, that Pari Passu Creditor shall cease automatically to be a Party as a Pari Passu Creditor; |
(d) | with respect to a Second Lien Creditor, on the first date on which all Second Lien Liabilities owed to that Second Lien Creditor have been fully and finally discharged in cash to the satisfaction of the relevant Second Lien Representative (acting reasonably), whether or not as a result of an enforcement, and (to the extent such Second Lien Creditor is a Second Lien Lender) that such Second Lien Creditor is under no further obligation to provide financial accommodation to any of the Debtors under the Second
Lien Finance Documents, that Second Lien Creditor shall cease automatically to be a Party as a Second Lien Creditor; |
(e) | with respect to a High Yield Creditor, on the first date on which all High Yield Liabilities owed to that High Yield Creditor have been fully and finally discharged in cash to the satisfaction of the relevant High Yield Representative (acting reasonably), whether or not as a result of an enforcement, and that High Yield Creditor is under no further obligation to provide financial accommodation to any of the Debtors under the High Yield Finance Documents, that High Yield Creditor shall cease automatically to be a Party as a High Yield Creditor; |
(f) | with
respect to an Unsecured Creditor, on the first date on which all Unsecured Liabilities owed to that Unsecured Creditor have been fully and finally discharged in cash to the satisfaction of the relevant Unsecured Representative (acting reasonably), whether or not as a result of an enforcement, and that Unsecured Creditor is under no further obligation to provide financial accommodation to any of the Debtors under the Unsecured Finance Documents, that Unsecured Creditor shall cease automatically to be a Party as an Unsecured Creditor; and |
(g) | with respect to a Subordinated Creditor, on the first date on which all Subordinated Liabilities owed to that Subordinated Creditor have been fully and finally discharged in cash (as certified by the
Company to the Security Agent in writing) and the Company has given notice that it wishes for such Subordinated Creditor to cease to be a Party, that Subordinated Creditor shall cease automatically to be a Party as a Subordinated Creditor. |
23.22 | New Subordinated Creditor |
23.23 | Cessation
of a Security Grantor |
24. | COSTS AND EXPENSES |
24.1 | Security Agent’s ongoing costs |
(a) | an Event of Default (other than in relation to a Debt Document evidencing Intra-Group Liabilities or Subordinated Liabilities); or |
(b) | the Security Agent being requested by a Debtor or an Instructing Group to undertake duties which the Security Agent and the Company agree to be of an exceptional nature and/or outside the scope of the normal duties of the Security Agent under the Debt Documents, |
24.2 | Transaction expenses |
(a) | this Agreement and any other documents referred to in this Agreement and the Transaction Security; and |
(b) | any other Debt Documents executed after the Effective Date. |
24.3 | Stamp taxes |
(a) | any such Tax payable in respect of a transfer certificate or assignment agreement or other document relating to a transfer or assignment by any Senior Secured Creditor and/or any Second Lien Creditor and/or any High Yield Creditor and/or any Unsecured Creditor of any of its rights and/or obligations under any Debt Document to which it is a party); and |
(b) | any
registration duties and any Tax payable due to a registration, submission or filing by a Secured Party of any Debt Document where such registration, submission or filing is or was not required to maintain or preserve the rights of that Secured Party under the applicable Debt Documents. |
24.4 | Interest on demand |
24.5 | Enforcement and preservation costs |
24.6 | Amendment costs |
25. | INDEMNITIES |
25.1 | Debtors’
indemnity |
(a) | Subject to any limitations applicable to any guarantee and indemnity obligations of any Debtor under the Secured Debt Documents, each Debtor shall within 10 Business Days of demand indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability (together with any applicable VAT) incurred (but excluding any costs and expenses arising as a result of the Security Agent’s negligence or wilful default) by any of them: |
(i) | in relation to or as a result of: |
(A) | any
failure by the Company to comply with its obligations under Clause 24 (Costs and Expenses); |
(B) | the taking, holding, protection or enforcement of the Transaction Security; |
(C) | the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent, each Receiver and each Delegate by the Debt Documents or by law; or |
(D) | any
default by any Debtor or Security Grantor in the performance of any of the obligations expressed to be assumed by it in the Debt Documents; or |
(ii) | which otherwise relates to any of the Security Property or the performance of the terms of this Agreement (otherwise than as a result of its gross negligence or wilful misconduct). |
(b) | Each Debtor expressly acknowledges and agrees that the continuation of its indemnity obligations under this Clause 25.1 (Debtors’
indemnity) will not be prejudiced by any release or disposal under Clause 17.2 (Distressed Disposals) taking into account the operation of that Clause 17.2 (Distressed Disposals). |
25.2 | Priority of indemnity |
25.3 | Primary Creditors’ indemnity |
(a) | Each
Primary Creditor (other than the Notes Trustees) shall (in the proportion that the Liabilities due to it bears to the aggregate of the Liabilities due to all the Primary Creditors for the time being (or, if the Liabilities due to each of those Primary Creditors is zero, immediately prior to their being reduced to zero)), indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Debt Documents (unless the relevant Security Agent, Receiver or Delegate has been reimbursed by a Debtor or Security Grantor pursuant to a Debt Document) and the Debtors or the Security Grantors shall jointly and severally indemnify each Senior Secured Creditor against any payment made by it under this Clause
25.3 (Primary Creditors’ indemnity). |
(b) | For the purposes only of paragraph (a) above, to the extent that any hedging transaction under a Hedging Agreement has not been terminated or closed-out, the Hedging Liabilities due to any Hedge Counterparty in respect of that hedging transaction will be deemed to be: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that
Hedging Agreement in respect of those hedging transactions, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); and |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which
the relevant Debtor is in a |
25.4 | The
Company’s indemnity to Senior Secured Creditors |
26. | INFORMATION |
26.1 | Information
and dealing |
(a) | The Creditors shall provide to the Security Agent from time to time (through their respective Agents in the case of a Senior Lender, a Second Lien Creditor, a Senior Secured Notes Creditor, a Pari Passu Creditor, a High Yield Creditor or an Unsecured Creditor) any information that the Security Agent may reasonably specify as being necessary or desirable to enable the Security Agent to perform its functions as trustee. |
(b) | Subject to clause 40.7 (Communication when Facility Agent is Impaired
Agent) of the Senior Facilities Agreement and any equivalent clause in any Second Lien Facilities Agreement, any High Yield Facilities Agreement and any Unsecured Facilities Agreement (as relevant) each Senior Lender, each Second Lien Lender, each High Yield Lender and each Unsecured Lender shall deal with the Security Agent exclusively through its Agent, and the Hedge Counterparties shall deal directly with the Security Agent and shall not deal through any Agent. |
(c) | No Agent shall be under any obligation to act as agent or otherwise on behalf of any Hedge Counterparty except as expressly provided for in, and for the purposes of, this Agreement. |
26.2 | Disclosure |
(a) | Notwithstanding
any agreement to the contrary and subject to paragraph (b) below, each of the Debtors and Security Grantors Consents, until the Final Discharge Date, to the disclosure by any of the Primary Creditors, the Agents, the Arrangers and the Security Agent to each other (whether or not through an Agent and/or the Security Agent) of such information concerning the Debtors and/or the Security Grantors as any Primary Creditor, any Agent, any Arranger |
(b) | Prior to the occurrence of an Acceleration Event, a Debtor shall have the right under or in connection with any Debt Document to provide any notice, request or information to the Security Agent or any Secured Creditor or an Agent on a confidential basis and if marked as such, the Security Agent, such Secured Creditor or an Agent shall keep such information confidential and shall not have the right to disclose such information to any other Secured Creditor or person. |
26.3 | Notification
of prescribed events |
(a) | If a Senior Default or a Senior Secured Notes Default or a Pari Passu Debt Default either occurs or ceases to be continuing the Senior Agent, Senior Secured Notes Representative(s) or Pari Passu Debt Representative(s) (as applicable) shall, upon becoming aware of that occurrence or cessation, notify the Security Agent and the Security Agent shall, upon receiving that notification, notify the Second Lien Representative(s), the High Yield Representative(s), the Unsecured Representative(s), any other Senior Secured Representative and each Hedge Counterparty. |
(b) | If
a Senior Acceleration Event occurs, the Senior Agent shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Party. |
(c) | If a Senior Secured Notes Acceleration Event occurs the relevant Senior Secured Notes Representative(s) shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Party. |
(d) | If a Pari Passu Debt Acceleration Event occurs the relevant Pari Passu Debt Representative(s) shall notify the Security Agent and
the Security Agent shall, upon receiving that notification, notify each other Party. |
(e) | If a Second Lien Default either occurs or ceases to be continuing the relevant Second Lien Representative(s) shall, upon becoming aware of that occurrence or cessation, notify the Security Agent and the Security Agent shall, upon receiving that notification, notify the Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), the High Yield Representative(s), any other Second Lien Representative(s), the Unsecured Representative(s) and each Hedge Counterparty. |
(f) | If
a High Yield Default either occurs or ceases to be continuing the relevant High Yield Representative(s) shall, upon becoming aware of that occurrence or cessation, notify the Security Agent and the Security Agent shall, upon receiving that notification, notify the Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), any other High Yield Representative(s), the Second Lien Representative(s), the Unsecured Representative(s) and each Hedge Counterparty. |
(g) | If an Unsecured Default either occurs or ceases to be continuing the relevant Unsecured Representative(s) shall, upon becoming aware of that occurrence or cessation, notify the Security Agent and the Security Agent shall, upon receiving that notification,
notify the Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), the High Yield Representative(s), the Second Lien Representative(s), any other Unsecured Representative(s) and each Hedge Counterparty. |
(h) | If a Second Lien Acceleration Event occurs the relevant Second Lien Representative(s) shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Party. |
(i) | If a High Yield Acceleration Event occurs the relevant High Yield Representative(s)
shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Party. |
(j) | If an Unsecured Acceleration Event occurs the relevant Unsecured Representative(s) shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Party. |
(k) | If the Security Agent receives a Second Lien Enforcement Notice under paragraph (a) of Clause 8.12 (Permitted Enforcement: Second Lien Creditors) it shall,
upon receiving that notice, notify, and send a copy of that notice to, the Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), any other Second Lien Representative(s), each Hedge Counterparty, the High Yield Representative(s) and the Unsecured Representative(s). |
(l) | If the Security Agent receives a High Yield Enforcement Notice under paragraph (b) of Clause 9.11 (Permitted Enforcement: High Yield Finance Parties) it shall, upon receiving that notice, notify, and send a copy of that notice to, the Senior Agent, the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), the Second Lien Representative(s), any other High Yield Representative,
each Hedge Counterparty and the Unsecured Representative(s). |
(m) | If the Security Agent enforces, or takes formal steps to enforce, any of the Transaction Security it shall notify each Party of that action. |
(n) | If any Primary
Creditor exercises any right it may have to enforce, or take any action to enforce, any of the Transaction Security, it shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Party of that action. |
(o) | If a Debtor defaults on any Payment due under a Hedging Agreement, the Hedge Counterparty which is party to that Hedging Agreement shall, upon becoming aware of that default, notify the Security Agent and the Security Agent shall, upon receiving that notification, notify the Senior Agent, the Second Lien Representative(s), the Senior Secured Notes Representative(s), the Pari Passu Debt Representative(s), each other Hedge Counterparty, the High Yield Representative(s) and the Unsecured Representative(s). |
(p) | If
a Hedge Counterparty terminates or closes-out, in whole or in part, any hedging transaction under any Hedging Agreement under Clause 4.9 (Permitted Enforcement: Hedge Counterparties) it shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each Agent and each other Hedge Counterparty. |
(q) | If the Security Agent receives a notice under paragraph (a)(iii) of Clause 3.8 (Option to purchase: Senior Secured Notes Creditors and Pari Passu Creditors) it shall upon receiving that notice, notify, and send a copy of that notice to, the Senior Agent. |
(r) | If
the Security Agent receives a notice under paragraph (a) of Clause 3.9 (Hedge Transfer: Purchasing Senior Secured Creditors) it shall upon receiving that notice, notify, and send a copy of that notice to, each Hedge Counterparty. |
(s) | If the Security Agent receives a notice under paragraph (a) of Clause 8.13 (Option to Purchase: Second Lien Creditors) it shall upon receiving that notice, notify, and send a copy of that notice to, the Senior Agent, the Pari Passu Debt Representative(s) and the Senior Secured Notes Representative(s). |
(t) | If
the Security Agent receives a notice under paragraph (a) of Clause 8.14 (Hedge Transfer: Purchasing Second Lien Creditors) it shall upon receiving that notice, notify, and send a copy of that notice to, each Hedge Counterparty. |
(u) | If the Security Agent receives a notice under paragraph (a) of Clause 9.15 (Option to purchase: High Yield Creditors) it shall upon receiving that notice, notify, and send a copy of that notice to, the Senior Agent, the Pari Passu Debt |
(v) | If the Security Agent receives a notice under paragraph (a) of Clause 9.16 (Hedge Transfer: High Yield Creditors) it shall upon receiving that notice, notify, and send a copy of that notice to, each Hedge Counterparty. |
(w) | Each of the Hedge Counterparties, Senior Secured Notes Trustee, Senior Agent, Second Lien Representatives, Pari Passu Debt Representative, High Yield Representative(s) and Unsecured Representative(s)
will on the request of the Security Agent notify the Security Agent in writing of details of the outstanding amount of the Hedging Liabilities, Senior Secured Notes Liabilities, Senior Lender Liabilities, Second Lien Liabilities, Pari Passu Debt Liabilities, High Yield Liabilities or Unsecured Liabilities (as applicable). |
27. | NOTICES |
27.1 | Communications in writing |
27.2 | Security Agent’s communications with Primary Creditors |
(a) | with the Senior Lenders, the Second Lien Creditors, the Arrangers, the Senior Secured Notes Creditors, the Pari Passu Creditors, the High Yield Creditors and the Unsecured Creditors through their respective Agents and may give to the Agents, as
applicable, any notice or other communication required to be given by the Security Agent to a Senior Lender, a Second Lien Creditor, an Arranger, the Senior Secured Notes Creditors, the Pari Passu Creditors, the High Yield Creditors or the Unsecured Creditors; and |
(b) | with each Hedge Counterparty directly with that Hedge Counterparty. |
27.3 | Addresses |
27.4 | Delivery |
(a) | Any
communication or document made or delivered by one person to another under or in connection with this Agreement will only be effective: |
(i) | if by way of electronic mail, when received in legible form; or |
(ii) | if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, |
(b) | Any communication or document to be made or delivered to the Security Agent will be effective only when actually received by it and then only if it is expressly marked for the attention of the department or officer identified with the Security Agent’s signature below (or any substitute department or officer as the Security Agent shall specify for this purpose). |
(c) | Any communication or document made or delivered
to the Company in accordance with this Clause 27.4 (Delivery) will be deemed to have been made or delivered to each of the Security Grantors, each of the Debtors and each of the Creditors (other than a Primary Creditor). |
(d) | Any communication which becomes effective, in accordance with paragraph (b) above, after 5 pm in the place of receipt shall be deemed to become effective on the following day. |
27.5 | Notification
of address and electronic mail address |
27.6 | Electronic communication |
(a) | Any communication to be made between any two Parties under or in connection with this Agreement
may be made by electronic mail or other electronic means, if those two Parties: |
(i) | agree that, unless and until notified to the contrary, this is to be an accepted form of communication (with such agreement to be deemed to be given by each Party unless notified to the contrary to the Security Agent and the Company); |
(ii) | notify
each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and |
(iii) | notify each other of any change to their address or any other such information supplied by them. |
(b) | Any electronic communication made under or in connection with this Agreement will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Security Agent only if it is addressed in such a manner
as the Security Agent shall specify for this purpose. |
(c) | Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5 pm in the place of receipt shall be deemed to become effective on the following day. |
27.7 | English language |
(a) | Any notice given under or in connection with
this Agreement must be in English. |
(b) | All other documents provided under or in connection with this Agreement must be: |
(i) | in English; or |
(ii) | if not in English, and if so required by the Security Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless
the document is a constitutional, statutory or other official document. |
27.8 | Notices to all Creditors |
(a) | Where any request for a Consent, amendment or waiver which requires the Consent of all the Parties or any class of Creditors (or percentage thereof) (as the case may be) is received by an Agent from a Debtor, the relevant Agent shall provide notice of such request to such Parties or the relevant class of Creditors at the same time. |
(b) | Where
an instruction is required by an Agent from a class of Creditors (or a percentage thereof), notice of such instruction shall be provided to each Creditor in the relevant class at the same time. |
28. | PRESERVATION |
28.1 | Partial invalidity |
28.2 | No impairment |
28.3 | Remedies
and waivers |
28.4 | Waiver of defences |
(a) | any time, waiver or Consent granted to, or composition with, any Debtor, any Security Grantor or other person; |
(b) | the release of any Debtor, any Security Grantor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group or any Security Grantor; |
(c) | the
taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Debtor, any Security Grantor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security; |
(d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Debtor, Security Grantor or other person; |
(e) | any
amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of a Debt Document or any other document or security; |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security; |
(g) | any intermediate Payment of any of the Liabilities owing to the Primary Creditors in whole or in part; or |
(h) | any
insolvency or similar proceedings. |
28.5 | Priorities not affected |
(a) | not be affected by any reduction or increase in the principal amount secured by the Transaction Security in respect of the Liabilities owing to the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents,
or by any variation or satisfaction of, any of the Liabilities or any other circumstances; |
(b) | apply regardless of the order in which or dates upon which this Agreement and the other Debt Documents are executed or registered or notice of them is given to any person; and |
(c) | secure the Liabilities owing to the Primary Creditors in the order specified, regardless of the date upon which any of the Liabilities arise or of any fluctuations in the amount of any of the Liabilities outstanding. |
29. | CONSENTS,
AMENDMENTS AND OVERRIDE |
29.1 | Required Consents |
(a) | Subject to paragraphs (b) to (f) (inclusive) below, Clause 2.4 (Additional and/or Refinancing Debt), Clause 17 (Proceeds
of Disposals), Clause 20 (Refinancing of Primary Creditor Liabilities), Clause 29.2 (Amendments and Waivers: Transaction Security Documents), Clause 29.4 (Exceptions), Clause 29.5 (Snooze/Lose), Clause 29.9 (Disenfranchisement of Defaulting Lenders) and Clause 29.7 (Deemed Consent), this Agreement and/or a Security Document may be amended or waived only with the Consent of the Agents, the Security Agent, the Company and the Security Grantor (as the case may be), provided that, if an amendment or waiver only affects one class of Creditors and such
amendment or waiver could not reasonably be expected to materially or adversely affect the interests of the other classes of Creditors, only the written agreement of the Agent acting on behalf of such affected class shall be required. |
(b) | Subject to paragraphs (c) to (f) (inclusive) below, Clause 2.4 (Additional and/or Refinancing Debt), Clause 17 (Proceeds of Disposals), Clause 20 (Refinancing of Primary Creditor Liabilities), Clause 29.4 (Exceptions), Clause 29.5 (Snooze/Lose), Clause 29.9 (Disenfranchisement
of Defaulting Lenders) and Clause 29.7 (Deemed Consent), an amendment or waiver of this Agreement that has the effect of changing or which relates to: |
(i) | the definition of “Instructing Group”, Clause 14 (Turnover of Receipts), Clause 15 (Redistribution), Clause 18 (Application of Proceeds), Clause 19 (Equalisation) or this Clause 29 (Consents, Amendments and Override); |
(ii) | paragraphs
(e)(iii), (f) and (g) of Clause 21.5 (Instructions to Security Agent and exercise of discretion); and |
(iii) | the order of priority or subordination under this Agreement, |
(A) | the Agents; |
(B) | the
Senior Lenders; |
(C) | the Second Lien Lenders; |
(D) | the High Yield Lenders; |
(E) | the Unsecured Lenders; |
(F) | the
Pari Passu Debt Representatives (acting on behalf of the relevant Pari Passu Creditors); |
(G) | the Senior Secured Notes Trustees (acting on behalf of the relevant Senior Secured Notes Creditors); |
(H) | the Second Lien Notes
Trustees (acting on behalf of the relevant Second Lien Notes Creditors); |
(I) | the High Yield Notes Trustees (acting on behalf of the relevant High Yield Notes Creditors); |
(J) | the Unsecured Notes Trustees (acting on behalf of the relevant Unsecured Notes Creditors); |
(K) |
(L) | each Hedge Counterparty (to the extent that the amendment or waiver would adversely affect the Hedge Counterparty); and |
(M) | the Security Agent. |
(c) | This Agreement and/or a Security Document may be amended by the
Company, the Agents and the Security Agent without the Consent of any other Party to cure defects, omissions or manifest errors or resolve ambiguities or reflect changes in each case of a minor technical or administrative nature or as otherwise prescribed by the relevant Debt Documents. |
(d) | Each Agent shall, to the extent consented to by the requisite percentage of Creditors it represents or it is otherwise authorised by the Debt Documents to which it is a party, act on such instructions in accordance therewith unless to the extent any amendments so consented to or authorised relate to any provision affecting the rights and obligations of that Agent in its capacity as such. |
(e) | Where
the Security Agent’s consent is required for any amendment or waiver in this Clause 29, the Security Agent shall act on the instructions of the applicable Instructing Group, provided that in all cases such consent of the Security Agent shall be deemed to have been given without such instruction or consent where either (i) an Instructing Group is not expressly required to instruct the Security Agent in relation to such amendment or waiver in accordance with the terms of this Agreement or (ii) the Agents have given their consent on behalf of Creditors which in aggregate comprise an Instructing Group. |
(f) | Notwithstanding anything to the contrary in the Debt Documents, a Creditor may unilaterally waive, relinquish
or otherwise irrevocably give up all or any of its rights under any Debt Document with the consent of the Company. |
29.2 | Amendments and Waivers: Transaction Security Documents |
(a) | the Security Agent may, and if the
Company and / or the relevant Security Grantor Consents, amend the terms of, waive any of the requirements of or grant Consents under, any of the Transaction Security Documents which shall be binding on each Party; and |
(b) | the prior consent of the Primary Creditors is required to authorise in case of any amendment or waiver of, or Consent under, any Transaction Security Document which would adversely affect the nature or scope of the Charged Property or the manner in which the proceeds of enforcement of the Transaction Security are distributed. |
29.3 | Effectiveness |
29.4 | Exceptions |
(a) | Subject to paragraphs (c) and (d) below, if the amendment, waiver or Consent may impose new or additional obligations on or withdraw or reduce
the rights of any Party other than: |
(i) | in the case of a Primary Creditor, in a way which affects or would affect Primary Creditors of that Party’s class generally; or |
(ii) | in the case of a Debtor or Security Grantor, to the extent Consented to by the Company under paragraph (a) of Clause 29.2 (Amendments and Waivers: Transaction Security Documents), |
(b) | Subject to paragraphs (c) and (d) below, an amendment, waiver or Consent which relates to the rights or obligations of an Agent, an Arranger or the Security Agent in its capacity as such (including, without limitation, any ability of the Security Agent to act in its discretion under this Agreement) may not be effected without |
(c) | Neither paragraph (a) nor (b) above or paragraph (b) of Clause 29.2 (Amendments and Waivers: Transaction Security Documents) shall apply: |
(i) | to any release of Transaction Security, claim or Liabilities; or |
(ii) | to any Consent, |
(d) | Paragraphs (a) and (b) above shall apply to an Arranger only to the extent that Arranger Liabilities are then owed to that Arranger. |
29.5 | Snooze/Lose |
(a) | a request for a Consent in relation to any of the terms of this Agreement; |
(b) | a request to participate in any other vote of Senior Secured Creditors, Second Lien Creditors, High Yield Creditors or Unsecured Creditors under the terms of this Agreement; |
(c) | a request to approve any other action under this Agreement;
or |
(d) | a request to provide any confirmation or notification under this Agreement, |
(i) | fails to respond to that request within ten (10) Business Days (or within such other period as the relevant Agent and the Company shall specify) of that request being made; or |
(ii) | fails
to provide details of its Senior Secured Credit Participation, Second Lien Credit Participation, High Yield Credit Participation or Unsecured Credit Participation to the Security Agent within the timescale specified by the Security Agent, |
(A) | in the case of paragraphs (a) to (c) above, that Senior Secured Credit Participation, that Second Lien Credit Participation, that High Yield Credit Participation
or that Unsecured Credit Participation (as the case may be) shall be deemed to be zero for the purpose of calculating the Senior Secured Credit Participation, the Second Lien Credit Participation, the High Yield Credit Participation or the Unsecured Credit Paricipation when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Senior Secured Credit Participations, Second Lien Credit Participations, High Yield Participations or Unsecured Credit Participations has been obtained to give that Consent, carry that vote or approve that action; |
(B) | in the case of paragraphs (a) to (c) above, that Primary Creditor’s status as a Second Lien Creditor, a Senior Secured Creditor, a High Yield Creditor and an Unsecured
Creditor shall be disregarded for the purposes of ascertaining whether the agreement of any specified group of Primary Creditors has been obtained to give that Consent, carry that vote or approve that action; and |
(C) | in the case of paragraph (d) above, that confirmation or notification shall be deemed to have been given. |
29.6 | Calculation credit participations |
(a) | For
the purpose of ascertaining whether any relevant percentage of Senior Secured Credit Participations, Second Lien Credit Participations, High Yield Credit Participations and Unsecured Credit Participations has been obtained under this Agreement, the Security Agent may notionally convert the Senior Secured Credit Participations, the Second Lien Credit Participations, the High Yield Credit Participations and the Unsecured Credit Participations into their Common Currency Amounts. |
(b) | Each Senior Agent, each Senior Secured Notes Representative and each Pari Passu Debt Representative will, upon the request of the Security Agent, promptly provide the Security Agent with details of the Senior Secured Credit Participations of the Senior Secured Creditors whom
it represents and (if applicable) details of the extent to which such Senior Secured Credit Participations have been voted for or against any request. |
(c) | Each Second Lien Representative will, upon the request of the Security Agent, promptly provide the Security Agent with details of the Second Lien Outstandings |
(d) | Each High Yield Representative will, upon the request of the Security Agent, promptly provide the Security Agent with details of the High Yield Outstandings of the High Yield Creditors whom its represents and (if applicable) details of the extent to which such High Yield Outstandings have been voted for or against any request. |
(e) | Each Unsecured Representative will, upon the request of the Security Agent, promptly provide the Security Agent with details
of the Unsecured Outstandings of the Unsecured Creditors whom its represents and (if applicable) details of the extent to which such Unsecured Outstandings have been voted for or against any request. |
(f) | Each Hedge Counterparty will, upon the request of the Security Agent, promptly provide the Security Agent with details of the Hedging Liabilities and (if applicable) details of the extent to which such Hedging Liabilities have been voted for or against any request. |
29.7 | Deemed Consent |
(a) | If,
at any time prior to the Senior Lender Discharge Date, the Senior Lenders and the Company give a Consent in respect of the Senior Finance Documents then, if that action was permitted by the terms of this Agreement, the Intra‑Group Lenders, Security Grantors and the Subordinated Creditors will (or will be deemed to): |
(i) | give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(ii) | do
anything (including executing any document) that the Senior Lenders may reasonably require to give effect to this paragraph (a). |
(b) | If, at any time on or after the Senior Lender Discharge Date and before the Senior Secured Notes Discharge Date, the Senior Secured Notes Creditors and the Company give a Consent in respect of the Senior Secured Notes Finance Documents then, if that action was permitted by the terms of this Agreement, the Intra-Group Lenders, Security Grantors and the Subordinated Creditors will (or will be deemed to): |
(i) | give
a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(ii) | do anything (including executing any document) that the Senior Secured Notes Creditors and the Company may reasonably require to give effect to this paragraph (b). |
(c) | If,
at any time on or after the Senior Lender Discharge Date and before the Pari Passu Debt Discharge Date, the Pari Passu Creditors and the Company give a Consent in respect of the Pari Passu Debt Documents then, if that action was permitted by the terms of this Agreement, the Intra-Group Lenders, Security Grantors and the Subordinated Creditors will (or will be deemed to): |
(i) | give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(ii) | do
anything (including executing any document) that the Pari Passu Creditors and the Company may reasonably require to give effect to this paragraph (c). |
(d) | If, at any time prior to the Second Lien Discharge Date, the Second Lien Creditors and the Company give a Consent in respect of any Second Lien Finance Documents then, if that action was permitted by the terms of this Agreement, the Intra-Group Lenders, Security Grantors and the Subordinated Creditors will (or will be deemed to): |
(i) | give
a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(ii) | do anything (including executing any document) that the Second Lien Creditors and the Company may reasonably require to give effect to this paragraph (d). |
(e) | If, at any time on or after the Second Lien Discharge Date, but before the High Yield Discharge Date, the High Yield Creditors and the
Company, HY Issuer or HY Borrower give a Consent in respect of the High Yield Finance Documents then, if that action was permitted by the terms of this Agreement, the Intra-Group Lenders, Security Grantors and the Subordinated Creditors will (or will be deemed to): |
(i) | give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(ii) | do anything (including executing any document) that the High Yield Creditors and the
Company may reasonably require to give effect to this paragraph (e). |
(f) | If, at any time on or after the Second Lien Discharge Date, but before the Unsecured Discharge Date, the Unsecured Creditors and the Company, Unsecured Issuer or Unsecured Borrower give a Consent in respect of the Unsecured Finance Documents then, if that action was permitted by the
terms of this Agreement, the Intra-Group Lenders, Security Grantors and the Subordinated Creditors will (or will be deemed to): |
(i) | give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(ii) | do anything (including executing any document) that the Unsecured Creditors and the Company may reasonably require to give effect to this paragraph (f). |
29.8 | Excluded
Consents |
(a) | increasing or decreasing the Liabilities; |
(b) | changing the basis upon which any Permitted Payments are calculated (including the timing, currency or amount of such Payments); or |
(c) | changing
the terms of this Agreement or of any Security Document. |
29.9 | Disenfranchisement of Defaulting Lenders |
(a) | For so long as a Defaulting Lender has any Available Commitment, in ascertaining: |
(i) | the Majority Senior Creditors; |
(ii) | the
Majority Senior Secured Creditors; |
(iii) | the Majority Senior Lenders; |
(iv) | the Majority Second Lien Creditors; |
(v) | the Majority Second Lien Lenders; |
(vi) | the
Majority High Yield Creditors; |
(vii) | the Majority High Yield Lenders; |
(viii) | the Majority Unsecured Creditors; |
(ix) | the Majority Unsecured Lenders; and/or |
(x) | whether: |
(A) | any
relevant percentage (including, for the avoidance of doubt, unanimity) of credit participations; or |
(B) | the agreement of any specified group of Primary Creditors, |
(b) | For the purposes of this Clause 29.9, the relevant Agent and the Security Agent
may assume that the following Creditors are Defaulting Lenders: |
(i) | any Senior Lender, Pari Passu Creditor, Second Lien Lender, High Yield Lender or Unsecured Lender which has notified the Security Agent that it has become a Defaulting Lender; |
(ii) | any Senior Lender, Pari Passu Creditor, Second Lien Lender, High Yield Lender or Unsecured Lender if the relevant Agent has notified the Security Agent that that Creditor is a Defaulting Lender; |
(iii) | any
Senior Lender, Pari Passu Creditor, Second Lien Lender, High Yield Lender or Unsecured Lender if the Company has notified the Security Agent that that Creditor is a Defaulting Lender; and |
(iv) | any Senior Lender, Pari Passu Creditor, Second Lien Lender, High Yield Lender or Unsecured Lender in relation to which it is aware that any of the events or circumstances referred to in the definition of Defaulting Lender in the Senior Facilities Agreement, any Pari Passu Debt Document, any Second Lien Facilities Agreement, any High Yield Facilities Agreement or any Unsecured Facilities Agreement (as applicable) has occurred, |
29.10 | High Yield Creditor administrative Consents |
(a) | give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(b) | do
anything (including executing any document) that the relevant Creditors and the Company may reasonably require to give effect to this Clause 29.10 (High Yield Creditor administrative Consents). |
29.11 | Unsecured Creditor administrative Consents |
(a) | give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
(b) | do
anything (including executing any document) that the relevant Creditors and the Company may reasonably require to give effect to this Clause 29.11 (Unsecured Creditor administrative Consents). |
29.12 | No liability |
29.13 | Agreement to override |
(a) | Subject
to paragraph (b) below, unless expressly stated otherwise in this Agreement or the Supplemental Deed, this Agreement overrides anything in the Debt Documents to the contrary. |
(b) | Notwithstanding anything to the contrary in this Agreement, but subject to Clause 1.2(w) (Construction) the preceding paragraph (a) as between any Creditor and any Debtor or any member of the Group or Security Grantor will not cure, postpone, waive or negate any breach, Default or Event of Default under any Debt Document (or any event that would but for paragraph (a) above constitute a breach, Default or Event of Default) as provided in the relevant Debt Document. |
30. | NOTES
TRUSTEE |
30.1 | General |
(a) | a Pari Passu Debt Representative in respect of Pari Passu Debt in the form of debt securities and references to Noteholders, Notes Finance Documents or Senior Secured Notes Liabilities shall be construed as references to the relevant Pari Passu Creditors, Pari Passu Debt Documents and Pari Passu Debt Liabilities in respect of such
Pari Passu Debt; |
(b) | a Second Lien Notes Trustee in respect of Second Lien Notes and references to Noteholders, Notes Finance Documents or Senior Secured Notes Liabilities shall be construed as references to the relevant Second Lien Notes Creditors, Second Lien Notes Finance Documents and Second Lien Notes Liabilities; |
(c) | a High Yield Notes Trustee in respect of High Yield Notes and references to Noteholders, Notes Finance Documents or Senior Secured Notes Liabilities shall be construed as references to the relevant High Yield
Notes Creditors, High Yield Notes Finance Documents and High Yield Notes Liabilities; and |
(d) | an Unsecured Notes Trustee in respect of Unsecured Notes and references to Noteholders, Notes Finance Documents or Senior Secured Notes Liabilities shall be construed as references to the relevant Unsecured Notes Creditors, Unsecured Notes Finance Documents and Unsecured Notes Liabilities. |
30.2 | Liability |
(a) | It
is expressly understood and agreed by the Parties that this Agreement is executed and delivered by each Notes Trustee not individually or personally but solely in its capacity as trustee in the exercise of the powers and authority |
(b) | It is further understood and agreed by the Parties that in no case shall any Notes Trustee be (i) personally responsible or accountable
in damages or otherwise to any other party for any loss, damage or claim incurred by reason of any act or omission performed or omitted by that Notes Trustee in good faith in accordance with this Agreement or any of the Notes Finance Documents in a manner that such Notes Trustee believed to be within the scope of the authority conferred on it by this Agreement or any of the Notes Finance Documents or by law, or (ii) personally liable for or on account of any of the statements, representations, warranties, covenants or obligations stated to be those of any other Party, all such liability, if any, being expressly waived by the Parties and any person claiming by, through or under such Party; provided however, that each Notes Trustee shall be personally liable under this Agreement for its own gross negligence or wilful misconduct. It is also acknowledged and agreed that no Notes Trustee
shall have any responsibility for the actions of any individual Creditor or Noteholder (save in respect of its own actions). |
(c) | The Parties acknowledge and agree that the Notes Trustee shall not be charged with knowledge or existence of facts that would impose an obligation on it hereunder to make any payment or prohibit it from making any payment unless, not less than two Business Days prior to the date of such payment, a Responsible Officer of the Notes Trustee receives written notice satisfactory to it that such payments are required or prohibited by this Agreement. |
(d) | Notwithstanding
anything contained herein, no provision of this Agreement shall alter or otherwise affect the rights and obligations of the Notes Issuer or any Debtor to make payments in respect of Notes Trustee Amounts as and when the same are due and payable pursuant to the applicable Notes Finance Documents or the receipt and retention by the Notes Trustee of the same or the taking of any step or action by the Notes Trustee in respect of its rights under the Notes Finance Documents to the same. |
(e) | The
Notes Trustee is not responsible for the appointment or for monitoring the performance of the Security Agent. |
(f) | The Security Agent agrees and acknowledges that it shall have no claim against the Notes Trustee in respect of any fees, costs, expenses and liabilities due and payable to, or incurred by, the Security Agent. |
(g) | The Notes Trustee shall be under no obligation to instruct or direct the Security Agent to take any Enforcement Action unless it shall have been instructed to do so by the Noteholders and if it shall have been
indemnified and/or secured to its satisfaction. |
30.3 | No action |
(a) | Notwithstanding any other provision of this Agreement, no Notes Trustee shall have any obligation to take any action under this Agreement unless it is indemnified and/or secured and/or prefunded by the Noteholders to its satisfaction in respect of all costs, expenses and liabilities which it would in its opinion thereby incur (together with any associated VAT). No Notes Trustee shall have an obligation to indemnify (out of its personal assets) any other person, whether
or not a Party, in respect of any of the transactions contemplated by this Agreement. In no event shall the permissive rights of a Notes Trustee to take action under this Agreement be construed as an obligation to do so. |
(b) | Prior to taking any action under this Agreement any Notes Trustee may request and rely upon an opinion of counsel or opinion of another qualified expert, at the expense of the Company or another Debtor. |
(c) | Notwithstanding
any other provisions of this Agreement or any other Notes Finance Document to which a Notes Trustee is a party to, in no event shall a Notes Trustee be liable for special, indirect, punitive or consequential loss or damages of any kind whatsoever (including but not limited to loss of business, goodwill, opportunity or profits) whether or not foreseeable even if such Notes Trustee has been advised of the likelihood of such loss or damage and regardless of whether the claim for loss or damage is made in negligence, for breach of contract or otherwise. |
30.4 | Reliance on certificates |
30.5 | No fiduciary duty |
30.6 | Debt assumptions |
(a) | Each
Senior Secured Notes Trustee is entitled to assume that: |
(i) | no Senior Secured Payment Default, Second Lien Payment Default, Pari Passu Debt Payment Default, High Yield Payment Default or Unsecured Payment Default has occurred; |
(ii) | no Senior Default, Second Lien Default, Pari Passu Debt Default, High Yield Default or Unsecured Default has occurred; |
(iii) | none
of the Senior Liabilities, Second Lien Liabilities, Pari Passu Debt Liabilities, High Yield Liabilities or Unsecured Liabilities have been accelerated; |
(iv) | no Default, Event of Default or termination event (however described) has occurred; and |
(v) | none of the Senior Discharge Date, the Second Lien Discharge Date, the Pari Passu Debt Discharge Date, the High Yield Discharge Date or the Unsecured Discharge Date has occurred, |
(b) | Each Second Lien Notes Trustee is entitled to assume that in respect of the Secured Obligations: |
(i) | no Senior Secured Payment Default or High Yield Payment Default or Unsecured Payment Default has occurred; |
(ii) | no
Senior Default, Senior Secured Notes Default, Pari Passu Debt Default, High Yield Default or Unsecured Default has occurred; |
(iii) | none of the Senior Liabilities, Senior Secured Notes Liabilities, Pari Passu Debt Liabilities, High Yield Liabilities or Unsecured Liabilities have been accelerated; |
(iv) | no Default, Event of Default or termination event (however described) has occurred; and |
(v) | none
of the Senior Discharge Date, the Senior Secured Notes Discharge Date, the Pari Passu Debt Discharge Date, the High Yield Discharge Date or the Unsecured Discharge Date has occurred, |
(c) | Each High Yield Notes Trustee is entitled to assume that in respect of the Secured Obligations: |
(i) | no Senior Secured Payment Default, Second Lien Payment Default or Unsecured Payment Default has occurred; |
(ii) | no
Senior Default, Second Lien Default, Pari Passu Debt Default, Senior Secured Notes Default or Unsecured Default has occurred; |
(iii) | none of the Senior Secured Liabilities, Second Lien Liabilities or Unsecured Liabilities have been accelerated; |
(iv) | no Default, Event of Default or termination event (however described) has occurred; and |
(v) | none
of the Senior Discharge Date, the Second Lien Discharge Date, the Pari Passu Debt Discharge Date, the Senior Secured Notes Discharge Date or the Unsecured Discharge Date has occurred, |
(d) | Each Unsecured Notes Trustee is entitled to assume that in respect of the Secured Obligations: |
(i) | no Senior Secured Payment Default, Second Lien Payment Default or High Yield Payment Default has occurred; |
(ii) | no
Senior Default, Second Lien Default, Pari Passu Debt Default, Senior Secured Notes Default or High Yield Default has occurred; |
(iii) | none of the Senior Secured Liabilities, Second Lien Liabilities or High Yield Liabilities have been accelerated; |
(iv) | no Default, Event of Default or termination event (however described) has occurred; and |
(v) | none
of the Senior Discharge Date, the Second Lien Discharge Date, Pari Passu Debt Discharge Date, the Senior Secured Notes Discharge Date or the High Yield Discharge Date has occurred, |
(e) | The Notes Trustee is not obliged to monitor or enquire whether any Event of Default has occurred. |
30.7 | Senior Lenders, Hedge Counterparties, Senior Secured Notes Creditors, Pari Passu Creditors, Second Lien Creditors,
High Yield Creditors and Unsecured Creditors |
30.8 | Claims of Security Agent |
30.9 | Reliance
and advice |
(a) | rely on any notice or document believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person; |
(b) | rely on any statement made by any person regarding any matters which may be assumed to be within its knowledge or within its powers to verify; and |
(c) | engage,
pay for and rely on professional advisers selected by it (including those representing a person other than the Notes Trustee). |
30.10 | Provisions survive termination |
30.11 | Other
Parties not affected |
30.12 | Instructions |
30.13 | Responsibility of Notes Trustee |
(a) | No Notes Trustee shall be responsible to any other Senior Finance Party, Pari Passu Creditor, Second Lien Finance Parties, Hedge Counterparty, Senior Secured Notes Finance Party, High Yield Finance Party or Unsecured Finance Party for the legality, validity, effectiveness, enforceability, adequacy, accuracy, completeness or performance of: |
(i) | any
Senior Finance Document, Senior Secured Notes Finance Document, Pari Passu Debt Document, Second Lien Finance Documents, Hedging Agreement, High Yield Finance Document, Unsecured Finance Document or any other document; |
(ii) | any statement or information (whether written or oral) made in or supplied in connection with any Senior Finance Document, Senior Secured Notes Finance Document, Pari Passu Debt Document, Second Lien Finance Document, Hedging Agreement, High Yield Finance Document, Unsecured Finance Document or any other document; or |
(iii) | any
observance by any Debtor of its obligations under any Debt Document or any other documents. |
(b) | Each Notes Trustee may rely and shall be fully protected in acting or refraining from acting upon any notice, certificate or other document reasonably believed |
30.14 | Confirmation |
(a) | has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Senior Finance Documents, the Senior Secured Notes Finance Documents, the Pari Passu Debt Documents, the Second Lien Finance
Documents, the High Yield Finance Documents, the Unsecured Finance Documents or the Hedging Agreement (including the financial condition and affairs of each Debtor, HY Issuer, HY Borrower or their related entities and the nature and extent of any recourse against any Party or its assets); and |
(b) | has not relied on any information provided to it by the Notes Trustee in connection with any Senior Finance Document, Senior Secured Notes Finance Document, Pari Passu Debt Document, Second Lien Finance Document, High Yield Finance Document, Unsecured Finance Document or Hedging Agreement. |
30.15 | Provision
of information |
(a) | providing any Senior Lender, Pari Passu Creditor, Senior Secured Notes Creditor, Second Lien Creditor, Hedge Counterparty, High Yield Creditor or Unsecured Creditor with any credit or other information concerning the risks arising under or in connection with the Debt Documents (including any information relating to the financial condition or affairs of any Debtor or Security Grantor or their related entities or the nature or extent of recourse against any Party or its assets) whether coming into its possession before, on
or after the Effective Date; or |
(b) | obtaining any certificate or other document from any Debtor or the Company. |
30.16 | Departmentalism |
30.17 | Disclosure of information |
30.18 | Illegality |
(a) | Each Notes Trustee may refrain from doing anything (including disclosing any information) which might, in its opinion, constitute a breach of any law or regulation and may do anything which, in its opinion, is necessary or desirable to comply
with any law or regulation. |
(b) | Furthermore, each Notes Trustee may also refrain from taking such action if it would otherwise render it liable to any person in that jurisdiction or if, in its opinion based upon such legal advice, it would not have the power to do the relevant thing in that jurisdiction by virtue of any applicable law in that jurisdiction or if it is determined by any court or other competent authority in that jurisdiction that it does not have such power. |
30.19 | Resignation of Notes Trustee |
30.20 | Notes Trustee assumptions |
(a) | Each Notes Trustee is entitled to assume that: |
(i) | any
payment or other distribution made pursuant to this Agreement in respect of the Unsecured Notes Liabilities, High Yield Notes Liabilities, the Second Lien Notes Liabilities or the Senior Secured Notes Liabilities (as the case may be) has been made in accordance with the ranking in Clause 2 (Ranking and Priority) and is permitted by any provision of this Agreement and is made in accordance with these provisions; |
(ii) | the
proceeds of enforcement of any Security conferred by the Transaction Security Documents have been applied in the order set out in Clause 18 (Application of Proceeds); |
(iii) | any Security, collateral, guarantee or indemnity or other assurance granted to it has been done so in compliance with Clauses 3.3 (Security and guarantees: Senior Secured Creditors), 8.10 (Security and guarantees: Second Lien Creditors) and 9.2 (Restriction on Payment and dealings: High Yield Liabilities); and |
(iv) | any
Senior Secured Notes, Second Lien Notes, High Yield Notes or Unsecured Notes issued comply with the provisions of this Agreement including, without limitation, Clauses 6 (Issue of Senior Secured Notes), 8 (Second Lien Creditors and Second Lien Liabilities), 9 (High Yield Creditors and High Yield Liabilities) and 10 (Unsecured Creditors and Unsecured Liabilities). |
(b) | Each Notes Trustee is entitled to assume that any payment or distribution made in respect of the High Yield Notes Liabilities, Second Lien Notes Liabilities, Unsecured Notes Liabilities or Senior Secured
Notes Liabilities (as the case may be) is permitted by this Agreement, unless it has actual knowledge to the contrary provided, however, that a Notes Trustee shall be liable under this Agreement for its own gross negligence or wilful misconduct. |
(c) | A Notes Trustee shall not have any obligation under Clause 13 (Effect of Insolvency Event) or Clause 15 (Redistribution) in respect of amounts received or recovered by it unless (i) it has actual knowledge that the receipt or recovery falls within paragraphs (a) or (b) above, and (ii) it has not distributed to the relevant
Noteholders in accordance with the Notes Indenture any amount so received or recovered. |
(d) | A Notes Trustee shall not be obliged to monitor performance by the Debtors, the Security Agent or any other Party or the Noteholders of their respective obligations under, or compliance by them with, the terms of this Agreement. |
30.21 | Agents |
30.22 | No Requirement for bond or surety |
30.23 | Notes
Trustee Liabilities and payments |
31. | COUNTERPARTS |
32. | BAIL-IN |
(a) | any
Bail-In Action in relation to any such liability, including: |
(i) | a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; |
(ii) | a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and |
(iii) | a
cancellation of any such liability; and |
(b) | a variation of any term of any Secured Debt Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability. |
33. | QFC CREDIT SUPPORT |
(a) | In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective
to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Secured Debt Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Secured Debt Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect
to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. |
(b) | For the purposes of this Clause 33, the following terms have the following meanings: |
34. | GOVERNING LAW |
35. | ENFORCEMENT |
35.1 | Jurisdiction |
(a) | The
courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a “Dispute”). |
(b) | The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. |
(c) | This
Clause 35.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions. |
35.2 | Service of process |
(a) | Without prejudice to any other mode of service allowed under any relevant law each Debtor, each Security Grantor and each Subordinated Creditor
(unless incorporated in England and Wales): |
(i) | irrevocably appoints the Company as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement; and |
(ii) | agrees that failure by a process agent to notify the relevant Debtor, Security Grantor or Subordinated Creditor, as applicable, of the process will not invalidate the proceedings concerned. |
(b) | If
any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Company (on behalf of all the Debtors, Security Grantors and Subordinated Creditors) must immediately (and in any event within five Business Days of becoming aware of such event taking place) |
(c) | Each Debtor and Subordinated Creditor expressly agrees and Consents to the provisions of this Clause 35 (Enforcement) and Clause 34 (Governing Law). |
(1) | [Insert full name of New Debtor] (the Acceding [Debtor]/[Security Grantor]); and |
(2) | [Insert
full name of current Security Agent] (the Security Agent), for itself and each of the other parties to the intercreditor agreement referred to below. |
1. | Terms defined in the Intercreditor Agreement shall, unless otherwise defined in this Agreement,
bear the same meaning when used in this Agreement. |
2. | The Acceding [Debtor]/[Security Grantor] and the Security Agent agree that the Security Agent shall hold: |
(a) | any Security in respect of Liabilities (including any Security Agent Claim) created or expressed to be created pursuant to the Relevant Documents; |
(b) | all
proceeds of that Security; and |
(c) | all obligations expressed to be undertaken by the Acceding [Debtor]/[Security Grantor] to pay amounts in respect of the Liabilities (including any Security Agent Claim) to the Security Agent as trustee or as agent or otherwise for the |
3. | The Acceding [Debtor]/[Security Grantor] confirms that it intends to be party to the Intercreditor Agreement as a [Debtor]/[Security Grantor], undertakes to perform all the obligations expressed to be assumed by a [Debtor]/[Security Grantor] under
the Intercreditor Agreement and agrees that it shall be bound by all the provisions of the Intercreditor Agreement as if it had been an original party to the Intercreditor Agreement. |
4. | [In consideration of the Acceding [Debtor]/[Security Grantor] being accepted as an Intra‑Group Lender for the purposes of the Intercreditor Agreement, the Acceding [Debtor]/[Security Grantor] also confirms that it intends to be party to the Intercreditor Agreement as an Intra-Group Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by an Intra-Group Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement].7 |
[EXECUTED AS A DEED | ) |
By: [Full name of Acceding [Debtor]/[Security Grantor]] | ) |
Director | |
Director/Secretary | |
OR | |
[EXECUTED
AS A DEED | |
By: [Full name of Acceding [Debtor]/[Security Grantor]] | |
Signature of Director | |
Name of Director | |
in the presence of | |
Signature of witness | |
Name
of witness | |
Address of witness | |
Occupation of witness] |
To: | [Insert
full name of current Security Agent] (the “Security Agent”) for itself and each of the other parties to the Intercreditor Agreement referred to below. |
Accepted
by the Security Agent | [Accepted by the Senior Agent] |
for and on behalf of | for and on behalf of |
[Insert full name of current Security Agent] | [Insert full name of current Senior Agent] |
Date: | Date:]9 |
1. | We refer to the Intercreditor Agreement. This is a Debtor Resignation Request. Terms defined in the Intercreditor Agreement have the same meaning in this Debtor Resignation Request unless given a different meaning in this Debtor Resignation Request. |
2. | Pursuant
to Clause 23.20 (Resignation of a Debtor) of the Intercreditor Agreement we request that [resigning Debtor] be released from its obligations as a Debtor under the Intercreditor Agreement. |
3. | We confirm that: |
(a) | no Event of Default is continuing or would result from the acceptance of this request; and |
(b) | [resigning
Debtor] is under no actual or contingent obligations in respect of the Intra-Group Liabilities. |
4. | This letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
[resigning Debtor] | |
By: | By: |
1. | Second Lien Finance Documents |
(a) | The Second Lien Finance Documents permit each document evidencing Senior Secured Liabilities to be refinanced, amended, restated, extended, supplemented or modified. |
(b) | The Second Lien Finance Documents permit the guarantees
and security taken in respect of the Senior Secured Liabilities in accordance with this Agreement. |
2. | Subject to Intercreditor Agreement |
3. | Trust Indenture Act |
1. | High
Yield Finance Documents |
(a) | The High Yield Finance Documents permit the Secured Debt Documents to be refinanced, amended, restated, extended, supplemented or modified. |
(b) | The High Yield Finance Documents permit the guarantees and security taken in respect of the Secured Obligations in accordance with this Agreement. |
2. | Subject
to Intercreditor Agreement |
3. | Trust Indenture Act |
1. | Unsecured Finance Documents |
(a) | The Unsecured Finance Documents permit the Secured Debt Documents and the High Yield Finance Documents to be refinanced, amended, restated, extended, supplemented or modified. |
(b) | The Unsecured Finance Documents permit the
guarantees and security taken in respect of the Secured Obligations in accordance with this Agreement. |
2. | Subject to Intercreditor Agreement |
3. | Trust Indenture Act |
Name | Jurisdiction of incorporation | Registration number |
[Virgin Media Finance plc | England and Wales | 05061787] |
[VMED O2 UK Holdco 3 Limited | England and Wales | 12807077] |
Debtor | Jurisdiction of incorporation | Registration number (or equivalent) |
[General Cable Limited | England and Wales | 04925679] |
[Virgin Media Bristol LLC | Delaware | N/A] |
[Virgin
Media Business Limited | England and Wales | 01785381] |
[Virgin Media Finance plc | England and Wales | 05061787] |
[Virgin Media Investment Holdings Limited | England and Wales | 03173552] |
[Virgin Media Investments Limited | England and Wales | 07108297] |
[Virgin
Media Limited | England and Wales | 02591237] |
[Virgin Media Operations Limited | England and Wales | 11118162] |
[Virgin Media Payments Limited | England and Wales | 06024812 |
[Virgin Media Secured Finance Plc | England and Wales | 07108352] |
[Virgin
Media Senior Investments Limited | England and Wales | 10362628 |
[Virgin Media SFA Finance Limited | England and Wales | 07176280 |
[Virgin Media Wholesale Limited | England and Wales | 02514287] |
[Virgin Mobile Telecoms Limited | England and Wales | 03707664] |
[VMED
O2 UK Holdco 4 Limited | England and Wales | 12809596] |
Intra-Group
Lender | Jurisdiction of incorporation | Registration number (or equivalent) |
[General Cable Limited | England and Wales | 04925679] |
[Virgin Media Bristol LLC | Delaware | N/A] |
[Virgin Media Business Limited | England and Wales | 01785381] |
[Virgin
Media Investment Holdings Limited | England and Wales | 03173552] |
[Virgin Media Investments Limited | England and Wales | 07108297] |
[Virgin Media Limited | England and Wales | 02591237] |
[Virgin Media Operations Limited | England and Wales | 11118162] |
[Virgin
Media Payments Limited | England and Wales | 06024812 |
[Virgin Media Secured Finance Plc | England and Wales | 07108352] |
[Virgin Media Senior Investments Limited | England and Wales | 10362628 |
[Virgin Media SFA Finance Limited | England and Wales | 07176280 |
[Virgin
Media Wholesale Limited | England and Wales | 02514287] |
[Virgin Mobile Telecoms Limited | England and Wales | 03707664] |
[VMED O2 UK Holdco 4 Limited | England and Wales | 12809596] |
Name | Jurisdiction of incorporation | Registration number |
[VMED
O2 UK Holdco 3 Limited | England and Wales | 12807077] |
[AUTHORIZED SIGNATORY] | |
Name: | [AUTHORIZED
SIGNATORY] |
Title: | Director |
[AUTHORIZED SIGNATORY] | |
Name: | [AUTHORIZED SIGNATORY] |
Title: | Director |
[AUTHORIZED SIGNATORY] | |
Name: | [AUTHORIZED SIGNATORY] |
Title: | Director |
[AUTHORIZED
SIGNATORY] | |
Name: | [AUTHORIZED SIGNATORY] |
Title: | Chief Finance Officer |
[AUTHORIZED SIGNATORY] | [AUTHORIZED SIGNATORY] | |||
By:
| [AUTHORIZED SIGNATORY] | By: | [AUTHORIZED SIGNATORY] |
[AUTHORIZED SIGNATORY] | |
Name: | [AUTHORIZED SIGNATORY] |
Title: | Director |
[AUTHORIZED
SIGNATORY] | |
Name: | [AUTHORIZED SIGNATORY] |
Title: | Chief Finance Officer |
This ‘8-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 9/30/20 | 10-Q, 4 | ||
For Period end: | 9/24/20 | |||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 3/26/24 Liberty Global Ltd. 10-K/A 12/31/23 25:5.3M 2/15/24 Liberty Global Ltd. 10-K 12/31/23 144:26M 3/28/23 Liberty Global plc 10-K/A 12/31/22 25:5.1M 2/22/23 Liberty Global plc 10-K 12/31/22 143:28M 3/30/22 Liberty Global plc 10-K/A 12/31/21 16:2.6M 2/17/22 Liberty Global plc 10-K 12/31/21 145:29M 3/30/21 Liberty Global plc 10-K/A 12/31/20 17:2.9M 2/16/21 Liberty Global plc 10-K 12/31/20 141:28M 11/04/20 Liberty Global plc 10-Q 9/30/20 104:21M |