TO ENABLE IT TO OBTAIN A
JUDGMENT IN RESPECT OF THAT LESSOR DEBT WHICH JUDGMENT IS IN EACH CASE NECESSARY
OR REASONABLY DESIRABLE IN ORDER FOR THAT LESSOR TO PROVE THAT LESSOR DEBT IN
ANY LIQUIDATION, TO MAKE A CLAIM UNDER THE LESSOR SECURITY PROVIDED TO OR FOR
THE BENEFIT OF THAT LESSOR OR TO AVOID THE EXPIRY OF ANY LIMITATION PERIOD IN
RESPECT OF THAT LESSOR DEBT; AND
(C)
SAVE FOR ANY STEPS NECESSARY OR REASONABLY DESIRABLE TO ENFORCE
THE COLLATERAL ACCOUNT SECURITY ASSIGNMENTS IT DOES NOT TAKE ANY STEPS TO
ENFORCE SUCH JUDGMENT;
8.6
PERMITTED ENFORCEMENT OF SECOND LIEN INDEBTEDNESS AND NEW HEDGE
COUNTERPARTY INDEBTEDNESS
Notwithstanding the provisions of Clause 8.2 (Restrictions on enforcement by New
Hedge Counterparties) and Clause 8.3 (Restrictions on enforcement by Second Lien
Finance Parties) or any other Clause of this Deed, if:
(i)
in the case of the Second Lien Finance Parties, a Second Lien
Default; or
(ii)
in the case of a New Hedge Counterparty, a Hedging Default,
in each case, other than to the extent arising from a cross-default by reason of
an event of default (howsoever described) occurring under any other Indebtedness
of the TCN Group (in this Clause, a "relevant Default") has occurred and is
continuing
38
unremedied and unwaived, the Second Lien Facility Agent and any New Hedge
Counterparty may take any action which it is entitled to take with respect to
such relevant Default in relation to the Second Lien Indebtedness or the New
Hedge Counterparty Indebtedness (as the case may be), including without
limitation as to the acceleration or closing out thereof, which would otherwise
be prohibited by this Deed in each case, if:
(A)
AN INSOLVENCY EVENT HAS OCCURRED;
(B)
ANY SENIOR INDEBTEDNESS HAS BEEN DECLARED TO BE DUE AND PAYABLE
(X) UNDER CLAUSE 26.17 (ACCELERATION) OR DUE OR PAYABLE ON DEMAND UNDER CLAUSE
26.18 (REPAYMENT ON DEMAND) OF THE SENIOR FACILITIES AGREEMENT) OR (Y) UNDER ANY
CORRESPONDING PROVISIONS OF THE TARGET GROUP FINANCE DOCUMENTS; OR
(C)
THE SENIOR LENDERS HAVE COMMENCED OR INSTRUCTED THE SECURITY
TRUSTEE TO COMMENCE ANY ENFORCEMENT ACTION; OR
(D)
(I)
THE SECOND LIEN FACILITY AGENT OR THE NEW HEDGE
COUNTERPARTY (AS THE CASE MAY BE) HAS SERVED A NOTICE ON THE RELEVANT SENIOR
AGENT SPECIFYING THE RELEVANT DEFAULT CONCERNED;
(II)
A PERIOD (A "STANDSTILL PERIOD") OF:
(A)
90 DAYS, IN THE CASE OF NON-PAYMENT OF ANY SECOND LIEN INDEBTEDNESS
OR NEW HEDGE COUNTERPARTY INDEBTEDNESS (AS THE CASE MAY BE); OR
(B)
120 DAYS, IN THE CASE OF BREACH OF A COVENANT CONTAINED IN CLAUSE
17 (FINANCIAL CONDITION) OF THE SECOND LIEN FACILITY AGREEMENT; OR
(C)
150 DAYS, IN ANY OTHER CASE,
has elapsed from the date the relevant Senior Agent has received the notice
relating to the relevant Default; and
(III)
AT THE END OF THE STANDSTILL PERIOD, THE RELEVANT DEFAULT IS
CONTINUING UNREMEDIED OR UNWAIVED,
provided always that any amounts received in respect of Second Lien Indebtedness
or New Hedge Counterparty Indebtedness (as the case may be) as