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England and Wales
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001-35961
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98-1112770
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer
Identification #)
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LIBERTY GLOBAL PLC
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By:
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/s/ RANDY L. LAZZELL
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Randy L. Lazzell
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Vice President
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To:
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The Bank of Nova Scotia as Facility Agent (the “
Facility Agent
”)
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From:
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The persons listed in Schedule 1 to this Additional Facility E Accession Agreement (the “
Facility E Lenders
”, such defined term to include any lender which becomes a New Lender in respect of the Term Loan E Facility, by the execution by the Facility Agent of a Transfer Certificate or Assignment Agreement)
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Date:
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24 May 2018
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1.
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In this Additional Facility E Accession Agreement (this “
Agreement
”):
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2.
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Unless otherwise defined in this Agreement, terms defined in the Facilities Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the Facilities Agreement. The principles of construction set out in Clause 1.2 (
Construction
) of the Facilities Agreement apply to this Agreement as though they were set out in full in this Agreement.
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3.
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We refer to Clause 2.2 (
Additional Facilities
) of the Facilities Agreement. This Agreement is an Additional Facility Accession Agreement for the purposes of the Facilities Agreement.
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4.
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This Agreement will take effect on the date on which the Facility Agent notifies the Borrower and the Facility E Lenders that it has received the documents and evidence set out in
Schedule
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5.
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Unless otherwise indicated herein, the terms of this Agreement shall be consistent in all material respects with the terms of the Facilities Agreement including, without limitation, with respect to interest period, conditions precedent, tax gross-up provisions and indemnity provisions, representations and warranties, utilisation mechanics, cancellation and prepayment (including the treatment of this Agreement under the prepayment waterfall), fees, costs and expenses, transfers, voting, amendments and waivers, non-financial covenants and events of default.
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6.
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The Additional Facility made available pursuant to this Agreement is a term loan.
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7.
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We, the Facility E Lenders, agree:
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(a)
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to become party to and to be bound by the terms of the Facilities Agreement as a Lender in accordance with Clause 2.2 (
Additional Facilities
) of the Facilities Agreement; and
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(b)
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to become a party to the Intercreditor Agreement as a Senior Creditor and to observe, perform and be bound by the terms and provisions of the Intercreditor Agreement in the capacity of a Senior Creditor.
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8.
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The Additional Facility Commitment of each Facility E Lender for the purposes of the definition of Additional Facility Commitment in Clause 1.1 (
Definitions
) of the Facilities Agreement is its Facility E Commitment.
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9.
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The Termination Date in respect of the Term Loan E Facility is the Facility E Maturity Date.
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10.
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The Term Loan E Facility shall be repaid in full on the Facility E Maturity Date.
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11.
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Subject to the terms of this Agreement, the Facility E Lenders agree to make available to the Borrower a term loan facility in an amount equal to the aggregate of the Facility E Commitments. The Availability Period in respect of the Term Loan E Facility is the period from and including the Effective Date (which shall be the Additional Facility Commencement Date for the purposes of the Facilities Agreement) up to
and including the date which is 45 Business Days after the Effective Date
or such other date agreed between the Facility E Lenders and the Borrower.
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12.
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The Margin in relation to the Term Loan E Facility is:
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(b)
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at all times thereafter, 2.25%
per annum,
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13.
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The interest rate for the Term Loan E Facility will be calculated in accordance with Clause 12 (
Interest
) of the Facilities Agreement, being the sum of LIBOR and the applicable Margin. For the avoidance of doubt, each party to this Agreement accepts and acknowledges that LIBOR has the meaning given to it under Clause 1.1 (
Definitions
) of the Facilities Agreement provided that if LIBOR as determined in accordance with that definition is less than zero, it shall be deemed to be zero. The first Interest Period to apply to each Facility E Loan will be set out in the respective Utilisation Request for that Facility E Loan.
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14.
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Each Facility E Loan shall be issued at 99.875% provided that no original issue discount shall be payable on any Loan arising from an increase in the Facility E Commitments effected in accordance with paragraph 2 (
OID Fees Funding
) of the Fee Letter.
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15.
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Loans under this Additional Facility will be used for general corporate purposes and/or working capital purposes, including, without limitation, the redemption, refinancing, repayment or prepayment of any existing indebtedness of any member of the Group and/or the payment of any fees and expenses in connection with the Term Loan E Facility and the transactions related thereto.
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16.
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The Term Loan E Facility may be drawn by up to three Loans (or any other number of Loans agreed between the Facility E Lenders and the Borrower) and no more than three Utilisation Requests (or any other number of Utilisation Requests agreed between the Facility E Lenders and the Borrower) may be made in respect of the Term Loan E Facility under the Facilities Agreement.
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17.
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For the purposes of partial assignments, transfers or novations of rights and/or obligations by a Lender in respect of this Additional Facility, the Lenders and the Borrower agree that such assignment, transfer or novation shall be in a minimum amount of $1,000,000 or such lower amount agreed to by the Facility Agent and the Borrower (save that in the case of a partial assignment, transfer or novation by a Lender of its rights and/or obligations under this Additional Facility to an Affiliate or Related Fund of that Lender, such assignment, transfer or novation shall be in a minimum amount of $500,000 or such lower amount agreed to by the Facility Agent and the Borrower).
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18.
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If on or prior to the date falling six months after the date of this Agreement (but not otherwise) the Borrower:
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(a)
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makes any prepayment of the Term Loan E Facility in connection with any Repricing Transaction (as defined below) other than where such prepayment is funded by the issuance of notes by any member of the Group or a special purpose vehicle which on-lends the proceeds of such notes to a member of the Group; or
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(b)
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effects any amendment of this Agreement or the Facilities Agreement resulting in a Repricing Transaction, other than, for the avoidance of doubt, any amendments
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(c)
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in the case of paragraph (a) above, a prepayment fee equal to 1.00 per cent. flat on the amount of that Facility E Lender’s Facility E Loan which is prepaid and such prepayment fee shall be due and payable on the date of such prepayment; and
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(d)
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in the case of paragraph (b) above, a prepayment fee equal to 1.00 per cent. flat on the aggregate amount of the Facility E Loans of each Facility E Lender that shall have been the subject of a mandatory assignment under the Facilities Agreement following the failure of such Lender to consent to such amendment on or prior to the date falling six months after the date of this Agreement and such prepayment fee shall be due and payable on the effective date of such assignment.
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(a)
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Provided that any upsizing of the Term Loan E Facility permitted under this paragraph will not breach any term of the Facilities Agreement, the Term Loan E Facility may be upsized by any amount, by the signing of one or more further Additional Facility Accession Agreements in respect of the Term Loan E Facility (an “
Additional Accession Agreement
”), that specifies (along with the other terms specified therein) Unitymedia Finance LLC as the sole Borrower, that the Commitments under that Additional Accession Agreement are denominated in US Dollars, to be drawn in US Dollars and with the same Termination Date and Margin as specified in this Agreement.
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(b)
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For the purposes of this paragraph 19 (unless otherwise specified), references to each Facility E Lender and Facility E Loan shall include Lenders and Loans made under any such further Additional Accession Agreement.
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(c)
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Where any Facility E Loan has not already been consolidated with any other Facility E Loan, on the last day of any Interest Period for that unconsolidated Facility E Loan, that Facility E Loan will be consolidated with any Facility E Loan which has an Interest Period ending on the same day as that unconsolidated Facility E Loan, and all such Loans will then be treated as one Loan under the Term Loan E Facility.
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20.
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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 Borrower under
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(a)
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any and all of the items set out in the Approved Amendments;
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(b)
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any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Facilities Agreement or any other Finance Document to be made either to implement the changes envisaged in the Approved Amendments; and/or
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(c)
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any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Facilities Agreement or any other Finance Document to be made to conform any Finance Document to any Liberty Global Reference Agreement provided that any amendment, waiver, consent or modification to conform the Facilities Agreement or any other Finance Document to any Liberty Global Reference Agreement referred to at paragraphs (vi), (ix), (x), (xi), (xiii) and (xiv) (in each case, other than any amendment, waiver, consent or modification to conform the Facilities Agreement or any Finance Document in relation to any covenant, event of default or definition in such Liberty Global Reference Agreements) shall be limited to any amendment, waiver, consent or modification which is specifically referenced in the Approved Amendments (and, in each case, any consequential amendments, waivers, consents or modifications),
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21.
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Each Facility E Lender hereby acknowledges and agrees (in the capacity of a Lender and, if it is a Hedging Bank, in the capacity of a Hedging Bank) 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 Hedging Banks acknowledge and agree (in their capacity as Lenders under a Revolving Facility or Hedging Banks, as applicable) that the Facility Agent and/or the Security Trustee (as applicable) may, but shall not be required to, send to the Facility E Lenders any further formal amendment request in connection with all, or any of the proposed amendments set out under paragraph 20 above and the Facility Agent and/or the Security Trustee (as applicable) shall be authorised to consent on behalf of each Facility E Lender, as a Lender under one or more Additional Facilities and as a Hedging Bank under the Intercreditor Agreement, to any such
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22.
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Each Facility E Lender hereby waives (in the capacity of a Lender and, if it is a Hedging Bank, in the capacity of a Hedging Bank) 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 Hedging Banks waive (in their capacity as Lenders under a Revolving Facility or Hedging Banks, as applicable) receipt of any fee in connection with the foregoing consent, notwithstanding that other consenting Lenders under the Facilities Agreement or Hedging Banks under the Intercreditor Agreement may be paid a fee in consideration of such Lenders’ or Hedging Banks’ consent to any or all of the foregoing amendments, waivers or other modifications.
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23.
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On the first Utilisation Date in respect of the Term Loan E Facility, the Borrower confirms, on behalf of itself and the Company confirms on behalf of itself and each other Obligor, that the Repeating Representations are true and correct as if made at the first Utilisation Date in respect of the Facility E Loan with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement.
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24.
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Each of the Obligors further represents and warrants on the first Utilisation Date in respect of the Term Loan E Facility that the execution and delivery by it of this Agreement and the performance of the transactions contemplated by this Agreement will not violate any agreement or instrument to which it is a party or which is binding upon it or any member of the Group or any of its assets or any member of the Group’s assets, where such violation would or is reasonably likely to have a Material Adverse Effect.
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25.
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Each of the Guarantors party to this Agreement confirm that its obligations under Clause 21 (
Guarantee and Indemnity
) of the Facilities Agreement, the Security created by it pursuant to the Transaction Security Documents and its obligations under the Finance Documents, shall continue unaffected and that upon execution of the relevant Transaction Security referred to in paragraph 28 by all parties thereto such obligations extend to the Total Commitments as increased by the addition of the Facility E Commitment and that such obligations shall be owed to each Finance Party including the Facility E Lenders.
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26.
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We confirm to each Finance Party that:
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(a)
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we have made our own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Facilities Agreement and have not relied on any information provided to us by a Finance Party in connection with any Finance Document; and
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(b)
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we will continue to make our own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Facilities Agreement or any Facility E Commitment is in force.
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27.
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Each of the Facility E Lenders hereby agrees with each other person who is or who becomes a party to the Intercreditor Agreement that with effect on and from the Effective Date it will be bound by the Intercreditor Agreement as a Senior Creditor (as defined in the Intercreditor Agreement) (in its capacity as a Lender under the Facilities Agreement) as if it had been party originally to the Intercreditor Agreement in that capacity and that it shall perform all of the undertakings and agreement set out in the Intercreditor Agreement and given by a Senior Creditor (as defined in the Intercreditor Agreement). This Agreement is the “Accession Agreement” referred to in Clause 13.2(b) of the Intercreditor Agreement.
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28.
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Other than in respect of any relevant Transaction Security that is released in accordance with Clause 38 (
Intercreditor Agreement and Asset Security Release
) of the Facilities Agreement prior to such time, as a condition subsequent to this Agreement, the Company shall procure that on or before 31 March 2019, each Obligor identified in Schedule 2 Part 4 (
Conditions Subsequent—Transaction Security
) of the Facilities Agreement grants the Transaction Security (in form and substance satisfactory to the Facility Agent (acting reasonably)) identified opposite its name in Schedule 2 Part 4 (
Conditions Subsequent—Transaction Security
) of the Facilities Agreement.
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29.
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This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.
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30.
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If a term of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect:
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(a)
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the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or
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(b)
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the legality, validity or enforceability in other jurisdictions of that or any other term of this Agreement.
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31.
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This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
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32.
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Clause 42.1 (
Jurisdiction of the English courts
) of the Facilities Agreement is incorporated into this Agreement as if set out in full and as if references in that clause to “this Agreement” are to this Agreement.
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33.
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This Agreement 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 Agreement
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34.
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This Agreement is an Accession Agreement for the purposes of and as defined in the Intercreditor Agreement.
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Facility E Lender
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Facility E Commitment ($)
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The Bank of Nova Scotia
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700,000,000
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1.
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Original Obligors
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(a)
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A copy of the Constitutional Documents of each Obligor.
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(b)
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In respect of each Obligor incorporated in Germany, a recent excerpt from the commercial register (
Handelsregister
) of the Obligors, not older than 14 days from the date of this Agreement.
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(c)
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A copy of a resolution of the shareholder(s) of each Obligor approving the terms of, and the transactions contemplated by, this Agreement and resolving that it execute, deliver and perform this Agreement.
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(d)
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A specimen of the signature of each person authorised to execute, on behalf of each Obligor, this Agreement and related documents to which it is a party and to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with this Agreement.
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(e)
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In relation to each Obligor incorporated in a jurisdiction other than Germany, a certificate by the directors of each Obligor confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments will not cause any borrowing, guarantee, security or similar limit binding on that Obligor to be exceeded.
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(f)
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A certificate by the directors of each Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement.
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(g)
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In respect of each Obligor incorporated in the State of Delaware, a good standing certificate of that Obligor from the Secretary of State of the State of Delaware, dated no earlier than 1 Business Day prior to the date of this Agreement,
provided that
“Business Day” for the purposes of this paragraph (g) means a day (other than a Saturday or Sunday) on which banks are open for general business in the State of Delaware.
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2.
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Legal Opinions
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(a)
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A legal opinion of Allen & Overy LLP legal advisers to the Facility Agent and the Mandated Lead Arrangers as to English law.
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(b)
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A legal opinion of Freshfields Bruckhaus Deringer legal advisers to the Company as to German law.
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(c)
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A legal opinion of Ropes & Gray International LLP legal advisers to the Company as to Delaware law.
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3.
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Other Documents and Evidence
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(a)
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A duly executed copy of this Agreement.
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(b)
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A duly executed copy of the Fee Letter.
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(c)
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A certificate of the Senior Subordinated Notes Issuer (as defined in the Intercreditor Agreement) to the Super Priority Representatives, the Senior Representatives and the Senior Subordinated Representatives (each as defined in the Intercreditor Agreement) confirming that each of the conditions set out in paragraphs (a)(i) to (v) of clause 13.2 of the Intercreditor Agreement have been satisfied.
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(d)
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A copy of a designation certificate executed by the Senior Subordinated Notes Issuer (as defined in the Intercreditor Agreement) designating the Term Loan E Facility under this Agreement as Senior Debt (as defined in the Intercreditor Agreement) and this Agreement as a Senior Designated Debt Document (as defined in the Intercreditor Agreement).
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1.
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Alternative Benchmarks:
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(a)
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Add the following new definitions to Clause 1.1 (
Definitions
) as follows:
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(b)
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Replace the definition of “Screen Rate” in Clause 1.1 (
Definitions
) with the following:
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(i)
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at any time prior to an Alternative Benchmark Commencement Date in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
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(ii)
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at any time on or following an Alternative Benchmark Commencement Date in relation to LIBOR, the Alternative Benchmark Rate for the relevant currency and period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date; and
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(i)
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at any time prior to an Alternative Benchmark Commencement Date in relation to EURIBOR, the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
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(ii)
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at any time on or following an Alternative Benchmark Commencement Date in relation to EURIBOR, the Alternative Benchmark Rate for Euro for the relevant period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date,
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2.
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Super Majority Lenders: add the following new definition to Clause 1.1 (
Definitions
):
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3.
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Cost of Funds:
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(a)
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Amend paragraph (b) of Clause 14.4 (
Cost of Funds
) such that it also applies if LIBOR or EURIBOR is to be determined by reference to a Reference Bank Rate or an Alternative Reference Bank Rate and to provide that, in entering into negotiations with the Company with a view to agreeing a substitute basis for determining the rate of interest, the Facility Agent may act in its sole discretion and will not be required to consult with or seek any consent or instruction from the Lenders or any other Finance Party.
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(b)
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Delete paragraph (c) of Clause 14.4 (
Cost of Funds
) and replace it with the following:
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4.
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Amendments and Waivers:
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(a)
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Amend paragraph (g) of Clause 37.2 (
Exceptions
) to add the following additional limb:
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“(iv)
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relates to the implementation of any alternative basis for the calculation of interest that is binding on all Parties in accordance with paragraph (c) of Clause 14.4 (
Cost of Funds
).”
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(b)
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Amend Clause 37.2 (
Exceptions
) to include the following additional paragraph:
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5.
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Resignation of Guarantor: amend paragraph (d) of Clause 28.6 (
Resignation of Guarantor
) to add the following additional limbs:
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(vii)
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if such Guarantor is an Affiliate Subsidiary and such Affiliate Subsidiary becomes a Subsidiary of or is merged into the Company, any Permitted Affiliate Parent or another Restricted Subsidiary of the Company or any Permitted Affiliate Parent which is not an Affiliate Subsidiary (as such terms are defined in Schedule 16 (
Definitions
)), and in each case, such Guarantor is not otherwise required to become or remain a Guarantor under the terms of this Agreement at such time; or
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(viii)
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as a result of, and in connection with, any Solvent Liquidation (as defined in Schedule 16 (
Definitions
)).”
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6.
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Release of Security: amend paragraph (b) of Clause 28.8 (
Release of Security
) to add the following additional limb:
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“(vi)
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with the approval of the Super Majority Lenders.”
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7.
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Disenfranchisement of Defaulting Lender: delete paragraph (a) of Clause 27.15 (
Disenfranchisement of Defaulting Lender
) in its entirety and replace it with the following:
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8.
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Changes to the Obligors:
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(a)
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Amend paragraph (a) of Clause 28.2 (
Additional Borrowers
) to delete sub-paragraph (vi) in its entirety.
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(b)
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Amend paragraph (a) of Clause 28.6 (
Resignation of a Guarantor
) to delete sub-paragraph (ii) in its entirety and replace it with the following:
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(a)
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“(ii) the resignation is permitted under paragraph (c) of Clause 37.2 (
Exceptions
)”
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9.
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Snooze: amend the time period in paragraph (i) of Clause 37.2 (
Exceptions
) from “15 Business Days” to “10 Business Days”.
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