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