Hedge Agreements. (1) At Borrower’s option, the Borrower may enter into one or more Hedge Agreements. Each Hedge Agreement shall, at Borrower’s option, be based on an Interest Period (each, an “Interest Rate Hedge Period”) of one (1) month. The economic and other benefits of the Hedge Agreements and all of the other rights thereunder shall be collaterally assigned to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such Hedge Agreement. (2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents. (3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower. (4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose. (5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents. (6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that: (a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement; (b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property; (c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and (d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Appears in 2 contracts
Samples: Term Loan Agreement (Acadia Realty Trust), Term Loan Agreement (Acadia Realty Trust)
Hedge Agreements. (1i) At Borrower’s option, the Borrower may enter into one or more Hedge Agreements. Each Hedge Agreement shall either be in the form of an interest rate cap or an interest rate swap, or a combination thereof, in each case between the Issuer and a Qualified Hedge Counterparty, with an effective date on or prior to a Funding Date.
(ii) In the case of an interest rate swap, the related Hedge Agreement shall provide for the payment on each Payment Date to the related Hedge Counterparty of interest on the notional amount thereof at a fixed rate per annum and the payment to the Indenture Trustee for deposit into the Collection Account of a floating rate per annum equal to the LIBOR Rate for each Interest Accrual Period; provided that the Issuer and the Hedge Counterparties may, subject to the related Hedge Agreements, make payments on a net basis; provided, further, that the fixed rate per annum paid to a Hedge Counterparty under an interest rate swap shall not exceed the weighted average coupon for the Borrowing Base Loans as of the last day of the related Due Period, less 8.50%.
(iii) In the case of an interest rate cap, the related Hedge Agreement shall provide for the payment by the Hedge Counterparty to the Indenture Trustee for deposit into the Collection Account on each Payment Date if the LIBOR Rate is greater than the Required Cap Rate for the related Interest Accrual Period, if any.
(iv) Any confirmation related to the ISDA Master Agreement and schedule thereto or long form confirmation, in each case, in the form of interest rate swaps, shall terminate on the last day that the Notes are assumed to be Outstanding based on the Hedge Amortization Schedules.
(v) Each Hedge Agreement may permit, if the related Hedge Counterparty fails to meet the rating requirements in clause (a) of the definition of Qualified Hedge Counterparty, such related Hedge Counterparty to post collateral to secure its obligations under the related Hedge Agreement. To the extent such Hedge Agreement permits the posting of collateral, such Hedge Agreement shall require the following terms (the “Hedge Agreement Collateral Posting Requirements”):
(A) the Hedge Counterparty shall, within 15 days’ of failing to meet such rating requirement, secure its obligations under the related Hedge Agreement, by posting collateral to the Indenture Trustee for deposit into the Hedge Collateral Account in an amount equal to the Hedge Collateral Amount;
(B) the Hedge Counterparty shall, at Borrower’s optionleast on a weekly basis, be based xxxx-to-market the related Hedge Agreement (pursuant to the terms thereof) and post additional collateral, as necessary such that the amount on an Interest Period (each, an “Interest Rate Hedge Period”) of one (1) month. The economic and other benefits of deposit in the Hedge Agreements and all of the other rights thereunder shall be collaterally assigned Collateral Account is at least equal to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such Hedge Agreement.
(2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performanceCollateral Amount; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Appears in 2 contracts
Samples: Third Amended and Restated Indenture and Servicing Agreement (MARRIOTT VACATIONS WORLDWIDE Corp), Omnibus Amendment (MARRIOTT VACATIONS WORLDWIDE Corp)
Hedge Agreements. (1a) At Borrower’s optionThe Issuer may, after the Borrower may Closing Date, enter into one or more Hedge Agreements. Each Agreements (including one or more Deemed Floating Asset Xxxxxx) with Hedge Agreement shallCounterparties as the Issuer may elect in its sole discretion, at Borrower’s option, be based on an Interest Period (each, an “Interest Rate Hedge Period”) of one (1) month. The economic and other benefits of the Hedge Agreements and all of the other rights thereunder shall be collaterally assigned to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by in each case (i) Uniform Commercial Code financing statements, in duplicate, with respect subject to such pledges Rating Confirmation and (ii) with the consent and agreement delivery to the Issuer of an Opinion of Counsel to the counterparty thereunder Hedge Counterparty; provided that it the Issuer will pay all amounts due thereunder not be required to an account designated by Administrative Agent and will continue to perform its obligations under obtain Rating Confirmation in connection with entering into any Deemed Floating Asset Xxxxxx which are Form-Approved Hedge Agreements with a Hedge Counterparty that satisfies the Hedge Counterparty Ratings Requirement.
(b) The Issuer shall assign such Hedge Agreement to the Trustee pursuant to Article 15 hereof.
(c) The Trustee shall, on behalf of the Issuer and in accordance with the Note Valuation Report, pay amounts due to any Hedge Counterparty under any Hedge Agreement on any Payment Date in accordance with Section 11.1 and Section 10.5(a)(5).
(d) Upon the entry of the Issuer into a Hedge Agreement, the Trustee shall cause the Custodian to establish a segregated, non-interest bearing Securities Account which shall be designated as a Hedge Counterparty Collateral Account with respect to the Hedge Counterparty in respect of which the Trustee shall be the Entitlement Holder and which the Trustee shall hold in trust for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on Secured Parties. The Trustee shall deposit all collateral received from such Hedge Counterparty under the related Hedge Agreement Pledge in such Hedge Counterparty Collateral Account. Any and all funds at any time on deposit in, or otherwise standing to the credit of, each Hedge Counterparty Collateral Account shall be held in trust by the Trustee for the benefit of the Secured Parties subject to the rights and interests of the related Hedge Counterparty under the related Hedge Agreement. The only permitted withdrawal from or application of funds on deposit in, or otherwise standing to the credit of, each Hedge Counterparty Collateral Account shall be (i) for application to obligations of the related Hedge Counterparty to the Issuer under the Hedge Agreement that are not paid when due (whether when scheduled or upon early termination) or (ii) to return collateral to the related Hedge Counterparty when and as required by the related Hedge Agreement in each case upon the direction of the Issuer pursuant to an acknowledgement that Administrative Agent Issuer Order. No assets credited to any Hedge Counterparty Collateral Account shall not be deemed to have assumed considered an asset of the Issuer for purposes of any of the obligations Coverage Tests or duties any Redemption unless and until the Issuer or the Trustee on its behalf is entitled to foreclose on such assets in accordance with the terms of Borrower under any such the Hedge Agreement.
(2e) All Upon its receipt of Borrower’s notice that the Hedge Counterparty has defaulted in the payment when due of its obligations to the Issuer under any Hedge Agreement provided by (or, if earlier, when the Trustee becomes aware of such default) the Trustee shall make a Eurohypo Counterparty demand on such Hedge Counterparty, or any guarantor, if applicable, demanding payment forthwith. The Trustee shall be secured by give notice to the lien Rated Noteholders and each Rating Agency upon the continuance of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured failure by the Loan Documents.
(3) Any such Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations underfor two Business Days following a demand made by the Trustee on such Hedge Counterparty.
(f) If at any time any Hedge Agreement becomes subject to early termination due to the occurrence of an “event of default” or a “termination event” (each as defined in the related Hedge Agreement), the Third-Party Hedge Agreement;
Issuer and the Trustee shall take such actions, if any, (bfollowing the expiration of any applicable grace period) to enforce the execution and delivery rights of the Third-Party Issuer and the Trustee thereunder as may be permitted by the terms of such Hedge Agreement and consistent with the terms hereof, and shall apply any proceeds of any such actions (including the proceeds of the liquidation of any collateral pledged by the Third-Party related Hedge Counterparty, and any ) to enter into a replacement Hedge Agreement on substantially identical terms or on such other agreement terms as to which each Rating Agency shall have provided a Rating Confirmation with a substitute Hedge Counterparty with respect to which the ThirdHedge Counterparty Ratings Requirement is satisfied and each Rating Agency shall have provided a Rating Confirmation. If the Issuer is the sole non-Affected Party Counterparty has executed and delivered pursuant theretoor the sole non-Defaulting Party with respect to such “event of default” or “termination event”, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws Issuer will (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for with the execution and delivery by the Third-Party Counterparty assistance of the Third-Party Collateral Manager) obtain quotations with respect to such replacement Hedge AgreementAgreement from five prospective counterparties Independent from the Issuer, the Collateral Manager and any each other agreement that satisfy the Hedge Counterparty Ratings Requirement and with respect to which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder a Rating Confirmation shall have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing enter into a replacement Hedge Agreement with any Governmental Authority or regulatory body the prospective counterparty that provides the lowest quotation (if the Issuer is required for to make a payment to such execution, delivery replacement counterparty) or performance; andthe highest quotation (if such replacement counterparty is required to make a payment to the Issuer).
(dg) The Issuer shall notify each Rating Agency if at any time any Hedge Counterparty is required to post collateral or assign its rights and obligations in and under the Third-Party related Hedge Agreement.
(h) No Hedge Agreement may be amended or modified at any time other than to effect the appointment of a substitute Hedge Counterparty or to effect a modification which is of a formal, minor or technical nature or is to correct a manifest error and which, in the opinion of the Trustee (based upon an Opinion of Counsel) would not have a material adverse effect on the interests of Holders of the Rated Notes or of Holders of any Class or Classes of Rated Notes or the Holders of the Income Notes unless the Issuer has obtained Rating Confirmation with respect to such amendment or modification. The Trustee shall provide the Collateral Manager and the Rating Agencies with a copy of any such amendment or modification within 10 Business Days before effecting such modification.
(i) The Issuer shall enter into a Hedge Agreement only if the payments from the Hedge Counterparty thereunder are not subject to withholding tax or if the related Hedge Counterparty shall be required in accordance with the terms of the related Hedge Agreement to pay additional amounts to the Issuer sufficient to cover any withholding tax due on payments made by such Hedge Counterparty to the Issuer under such Hedge Agreement, subject to the Issuer making customary payee tax representations and providing customary tax documentation. At any other agreement time at which the Third-Party Counterparty has executed and delivered pursuant theretoIssuer is not a Qualified REIT Subsidiary, has been duly executed and delivered by the Third-Party Counterparty and constitutes Issuer shall not enter into any Hedge Agreement the legalacquisition (including the manner of acquisition), valid and binding obligation ownership, enforcement or disposition of which would subject the Third-Party Counterparty, enforceable against Issuer to tax on a net income basis in any jurisdiction outside the Third-Party Counterparty in accordance Issuer’s jurisdiction of incorporation.
(j) The Issuer will not terminate any Hedge Agreement without receiving Rating Confirmation with its terms, subject respect to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as such termination except to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)the extent otherwise specified herein.
Appears in 2 contracts
Samples: Indenture (Northstar Realty), Indenture (Northstar Realty)
Hedge Agreements. (1) At Borrower’s option, the Borrower may enter into one or more Hedge Agreements. Each Hedge Agreement shall, at Borrower’s option, be based on an Interest Period Periods (each, an “Interest Rate Hedge Period”) of one (1) monthone, two, three months or such other Interest Periods satisfactory to Administrative Agent in its sole discretion. The economic and other benefits of the Hedge Agreements and all of the other rights thereunder shall be collaterally assigned to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such Hedge Agreement.
(2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage Mortgages on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority governmental authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(7) For so long as a Hedge Agreement is in effect, Administrative Agent may elect to cause advances of the Loan proceeds available for interest payments to be used to make “regular” payments due under the Hedge Agreement (i.e., other than those payments which are due upon the termination of such Hedge Agreement), in addition to interest payments on the Loans.
Appears in 2 contracts
Samples: Acquisition and Project Loan Agreement (Acadia Realty Trust), Acquisition and Project Loan Agreement (Acadia Realty Trust)
Hedge Agreements. (1a) At Borrower’s optionOn the Closing Date, the Borrower Issuer shall enter into a hedge agreement (the “Initial Hedge Agreement”) with Xxxxxxx Xxxxx Capital Services, Inc. (the “Initial Hedge Counterparty”). After the Closing Date, the Issuer may enter into one replacement or more additional Hedge AgreementsAgreements if on the date on which the Issuer enters into a replacement or additional Hedge Agreement, (i) each Hedge Counterparty entering into a Hedge Agreement on such date (or any Affiliate of such Hedge Counterparty that shall have absolutely and unconditionally guaranteed (using a form of guarantee complying with Standard & Poor’s then-current published criteria with respect to guarantees) the obligations of such Hedge Counterparty under the relevant Hedge Agreement) shall be required to satisfy the Hedge Counterparty Ratings Requirement, (ii) the Issuer shall collaterally assign its rights under such Hedge Agreement to the Trustee pursuant to this Indenture and such Hedge Counterparty shall consent to such assignment and (iii) the Rating Condition is satisfied. The Issuer shall enter into a Hedge Agreement only if (A) the relevant Hedge Counterparty shall be required in accordance with the terms of such Hedge Agreement to pay additional amounts to the Issuer sufficient to cover any Indemnifiable Tax (as defined in the Hedge Agreement) due on payments made by such Hedge Counterparty to the Issuer under such Hedge Agreement, subject to the Issuer making customary payee tax representations and providing customary tax documentation and (B) such Hedge Agreement contains “limited recourse” and “non-petition” provisions equivalent to the “limited recourse” and “non-petition” provisions set forth herein (mutatis mutandis).
(b) The Trustee shall, on behalf of the Issuer and in accordance with the Note Valuation Report, pay amounts due to each Hedge Counterparty under the Hedge Agreements on any Distribution Date subject to and in accordance with Section 11.1.
(c) Each Hedge Agreement shall provide that, in respect of any Hedge Counterparty or transferee:
(i) if the Hedge Rating Determining Party ceases to satisfy the Hedge Counterparty Ratings Requirement, then such Hedge Counterparty shall, within the period specified in the Hedge Agreement following such ratings downgrade (solely at Borrower’s option, be based on an Interest Period (each, an “Interest Rate Hedge Period”) of one (1) month. The economic and other benefits the expense of the Hedge Agreements and all Counterparty), post collateral pursuant to the Credit Support Annex to the related Hedge Agreement, or obtain a guarantee or make an assignment to a replacement Hedge Counterparty or take such other action which satisfies the Rating Condition; and
(ii) if its Hedge Rating Determining Party fails to satisfy the Ratings Threshold, then the Hedge Counterparty shall within ten Business Days of the occurrence of a Ratings Event (as defined in the related Hedge Agreement) either (x) assign its rights and obligations in and under the related Hedge Agreement (at its own expense) to another Hedge Counterparty that has ratings at least equal to the Hedge Counterparty Ratings Requirement or (y) enter into any other agreement with or arrangement for the benefit of the Issuer and the Trustee that is reasonably satisfactory to the Trustee on behalf of the Issuer and that satisfies the Rating Condition.
(d) The Hedge Agreements will provide that upon the default by the relevant Hedge Counterparty in the payment when due of its obligations to the Issuer under such Hedge Agreement, the Issuer shall promptly provide written notice thereof to the Trustee and, if applicable, any guarantor of such Hedge Counterparty’s obligations under such Hedge Agreement. Upon its receipt of such notice (or, if earlier, when the Trustee becomes aware of such default) the Trustee shall make a demand on such Hedge Counterparty, or any guarantor, if applicable, demanding payment forthwith. The Trustee shall give notice to the Noteholders and each Rating Agency upon the continuance of the failure by such Hedge Counterparty to perform its obligations for two Business Days following a demand made by the Trustee on such Hedge Counterparty.
(e) If at any time any Hedge Agreement becomes subject to early termination due to the occurrence of an “Event of Default” or a “Termination Event” (each as defined in the relevant Hedge Agreement) where the Hedge Counterparty is the Defaulting Party or the Affected Party (each as defined in the relevant Hedge Agreement), the Issuer shall give prompt written notice thereof to the Trustee, and the Issuer and the Trustee shall take such actions (following the expiration of any applicable grace period) to enforce the rights of the Issuer and the Trustee thereunder, as instructed in writing by the Collateral Manager and as may be permitted by the terms of such Hedge Agreement and consistent with the terms hereof, and shall apply the proceeds of any such actions (including the proceeds of the liquidation of any collateral pledged by such Hedge Counterparty) to the costs of such actions and to the cost of entering into a replacement Hedge Agreement to be arranged and entered into by the Issuer on substantially identical terms or on such other terms with respect to which the Issuer has satisfied the Rating Condition. Any costs attributable to entering into a replacement Hedge Agreement which exceed the sum of the proceeds of the liquidation of the terminated Hedge Agreement shall be borne by the “Defaulting Party” or sole “Affected Party” (each as defined in the relevant Hedge Agreement) with respect to the applicable “Event of Default” or “Termination Event” (each as defined in the relevant Hedge Agreement). In determining the amount payable under the terminated Hedge Agreement, the Issuer will seek quotations from “Reference Market-makers” (as defined in the relevant Hedge Agreement) that satisfy the Hedge Counterparty Ratings Requirement. In addition, the Issuer will use its best efforts to cause the termination of a Hedge Agreement to become effective simultaneously with the entry into a replacement Hedge Agreement described as aforesaid.
(f) Each Hedge Agreement shall provide that (i) any amount payable to the Hedge Counterparty thereunder shall be collaterally assigned subject to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges Priority of Payments and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for is subject to termination on the benefit occurrence of Administrative Agent an Event of Default and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any liquidation of the obligations or duties of Borrower under any such Hedge AgreementCollateral.
(2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Appears in 2 contracts
Samples: Indenture (Taberna Realty Finance Trust), Indenture (Taberna Realty Finance Trust)
Hedge Agreements. (1a) At The Borrower shall obtain, or cause to be obtained by an Other Swap Pledgor, no later than thirty (30) days after the Closing Date and will at all times thereafter maintain, or cause to be maintained by an Other Swap Pledgor, in full force and effect one or more Hedge Agreements in the aggregate notional amount equal to one hundred percent (100%) of the Outstanding Principal Amount of the Loans made to the Borrower and the Westwood Place Borrower from time to time (the “Aggregate Notional Amount”) approved by the Administrative Agent in its reasonable discretion with (i) Eurohypo or its Affiliates or (ii) one or more other banks or insurance companies as counterparties (each a “Third-Party Counterparty”), which is effective to cause the All-in-Rate as to the Aggregate Notional Amount commencing no later than the date that is thirty (30) days after the Closing Date (or, if such day is not a Business Day, the first Business Day thereafter) to be not in excess of eight percent (8.0%) per annum through the Hedging Termination Date. Upon the Closing Date, the Borrower shall deliver, or cause to be delivered by an Other Swap Pledgor, a Hedge Agreement Pledge, substantially in the form of Exhibit G-1 attached hereto, together with, within thirty (30) days after the Closing Date, the applicable bid package, confirmation and other documentation for such Hedge Agreement (including, without limitation, a certificate from an Authorized Officer of the Borrower certifying that a Hedge Agreement has been entered into on the terms set forth in the confirmation) as may be reasonably acceptable to the Administrative Agent evidencing compliance with the Borrower’s obligations under the provisions of this Section 8.19, and within ten (10) days after the delivery of each such Hedge Agreement (or within the thirty (30) day period referred to above) shall deliver the applicable counterparty acknowledgment. Any Hedge Agreement shall require monthly fixed rate and floating rate payments and be based on a LIBO Rate of interest having, at the Borrower’s option, the Borrower may enter into one or more Hedge Agreements. Each Hedge Agreement shall, at Borrower’s option, be based on an successive Interest Period Periods (each, an “Interest Rate Hedge Period”) of one, two, three, six or twelve months or such other Interest Periods satisfactory to the Administrative Agent in its reasonable discretion. Notwithstanding anything to the contrary contained in this Section 8.19, the Borrower or any Other Swap Pledgor shall be entitled to enter into one (1) month. The economic and other benefits or more Hedge Agreements in excess of the Aggregate Notional Amount, up to the total amount of the Commitments or providing interest rate protection for periods that extend beyond the Hedging Termination Date (each such agreement, but only to the extent that it, after giving effect to all other Hedge Agreements and all maintained pursuant to this Section 8.19(a), relates to a notional amount in excess of the other rights thereunder Aggregate Notional Amount or provides interest rate protection for periods that extend beyond the Hedging Termination Date, is referred to herein as an “Excess Hedge Agreement”) on terms acceptable to the Borrower or such Other Swap Pledgor; provided, however, that Borrower shall deliver, or cause to be collaterally assigned to delivered by an Other Swap Pledgor, upon the Administrative Agent as additional security for Agent’s request in accordance with the Loanstime requirements set forth in this Section 8.19(a), pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, Pledge with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such each Excess Hedge Agreement, substantially in the form of Exhibit G-2 attached hereto, together with the counterparty’s acknowledgment and other instruments provided to be delivered thereunder.
(2b) All of The Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Deeds of Trust and shall not be secured by any Lien on or in all or any portion of the collateral under the Security Documents or on or in Documents, any direct or indirect interest in Borrowerthe Borrower or any other Property (other than as permitted pursuant to Section 9.02(i)).
(4c) Borrower shall cause all payments payable by Any Hedge Agreement with a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon herein called a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a “Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver .” With respect to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the each Third-Party Counterparty) for Hedge Agreement maintained with respect to the Third-Party Counterparty (in form reasonably satisfactory Aggregate Notional Amount and each Excess Hedge Agreement pledged to the Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
pursuant to Section 8.19(a): (ai) the Third-Party Counterparty is duly organized, validly existing, and in good standing under providing such Third-Party Hedge Agreement must have a long term credit rating no lower than “A” from S&P or “A2” from Xxxxx’x at the laws time of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the entry into such Third-Party Hedge Agreement;
; provided, however, if there is a difference in the then current S&P rating and the Xxxxx’x rating, the lesser rating shall be applicable; (bii) the execution form and delivery of substance thereof must be satisfactory to the Third-Party Administrative Agent in its reasonable discretion and in all respects and (iii) each counterparty thereunder shall have delivered to the Administrative Agent a counterparty’s acknowledgment in the form attached to the Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws Pledge applicable thereto (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or in such other form as may be acceptable to the Administrative Agent in its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at lawreasonable discretion).
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Hedge Agreements. (1a) At Borrower’s optionSubject to the terms of this Section 16.1, the Borrower Issuer (or the Collateral Manager on behalf of the Issuer) may enter into one Hedge Agreements from time to time on or more after the Closing Date solely for the purpose of managing interest rate and/or foreign exchange risks in connection with the Issuer’s issuance of, and making payments on, the Notes. The Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly provide written notice of entry into any Hedge AgreementsAgreement to the Trustee and the Collateral Administrator. Notwithstanding anything to the contrary contained in this Indenture, the Issuer (or the Collateral Manager on behalf of the Issuer) shall not enter into any Hedge Agreement unless the Global Rating Agency Condition has been satisfied with respect thereto. The Issuer shall provide a copy of each Hedge Agreement to each Rating Agency and the Trustee.
(b) Each Hedge Agreement shall contain appropriate limited recourse and non-petition provisions equivalent (mutatis mutandis) to those contained in Section 13.1(d) and Section 2.7(i). Each Hedge Counterparty shall be required to have, at the time that any Hedge Agreement to which it is a party is entered into, the Required Hedge Counterparty Ratings unless the Global Rating Agency Condition is satisfied or credit support is provided as set forth in the Hedge Agreement. Payments with respect to Hedge Agreements shall be subject to Article XI. Each Hedge Agreement shall, at Borrower’s option, be based on shall contain an Interest Period (each, an “Interest Rate acknowledgement by the Hedge Period”) of one (1) month. The economic and other benefits Counterparty that the obligations of the Issuer to the Hedge Agreements and all of Counterparty under the other rights thereunder relevant Hedge Agreement shall be collaterally assigned to Administrative Agent as additional security for payable in accordance with Article XI.
(c) In the Loans, pursuant to event of any early termination of a Hedge Agreement Pledge. All with respect to which the Hedge Agreement Pledges shall be accompanied by Counterparty is the sole “defaulting party” or “affected party” (each as defined in the Hedge Agreements), notwithstanding any term hereof to the contrary, (i) Uniform Commercial Code financing statements, in duplicate, with respect any termination payment paid by the Hedge Counterparty to such pledges the Issuer may be paid to a replacement Hedge Counterparty at the direction of the Collateral Manager and (ii) any payment received from a replacement Hedge Counterparty may be paid to the consent and agreement replaced Hedge Counterparty at the direction of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations Collateral Manager under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such terminated Hedge Agreement.
(2d) All The Issuer (or the Collateral Manager on its behalf) shall, upon receiving written notice of Borrower’s obligations the exposure calculated under a credit support annex to any Hedge Agreement provided by Agreement, if applicable, make a Eurohypo demand to the relevant Hedge Counterparty shall be secured by and its credit support provider, if applicable, for securities having a value under such credit support annex equal to the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documentsrequired credit support amount.
(3e) Any Each Hedge Agreement entered into with one will, at a minimum, (i) include requirements for collateralization by or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo replacement of the Hedge Counterparty (a “Third-Party including timing requirements) that satisfy Rating Agency criteria in effect at the time of execution of the Hedge Agreement and (ii) permit the Issuer to terminate such agreement (with the Hedge Counterparty bearing the costs of any replacement Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrowerfor failure to satisfy such requirement.
(4f) Borrower The Issuer shall cause all payments payable by give prompt notice to each Rating Agency of any termination of a Third-Party Hedge Agreement or agreement to provide Hedge Counterparty credit support. Any collateral received from a Hedge Counterparty under a Hedge Agreement shall be deposited in the Hedge Counterparty Collateral Account.
(g) If a Hedge Counterparty has defaulted in the payment when due of its obligations to the Issuer under a Hedge Agreement, promptly after becoming aware thereof the Collateral Manager shall make a demand on such Hedge Counterparty (or its guarantor under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated Agreement) with a copy to the Interest Reserve for such purposeTrustee, and before applying any Operating Revenues for such purposedemanding payment thereunder.
(5h) Any payment due from the counterparty under any Each Hedge Agreement upon a termination thereof, shall provide that it may not be delivered terminated due to Administrative Agent the occurrence of an Event of Default until liquidation of the Assets pursuant to Sections 5.4 and applied by Administrative Agent to any amounts due under the Loan Documents5.5 has commenced.
(6i) In connection with a Third-Party The Issuer will not be permitted to enter into or amend Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent Agreements unless the following conditions are satisfied: (a) it obtains an opinion of counsel of national reputation experienced in such matters that either (i) the Issuer entering into such Hedge Agreement will not cause it to be considered a “commodity pool” as defined in Section 1a(10) of the CEA or (ii) if the Issuer would be a commodity pool, that (A) the Collateral Manager, and no other party, would be the commodity pool operator and commodity trading adviser and (B) with respect to the Issuer as a commodity pool, the Collateral Manager is eligible for an exemption from registration as a commodity pool operator and commodity trading adviser and all conditions precedent to obtaining such an exemption have been satisfied; (b) the Collateral Manager agrees in writing (or the supplemental indenture requires) that for so long as the Issuer is a commodity pool it will take all actions necessary to ensure ongoing compliance with the applicable exemption from registration as a commodity pool operator and commodity trading adviser with respect to the Issuer, and any other actions required as a commodity pool operator and commodity trading adviser with respect to the Issuer; (c) the Issuer receives a written opinion of counsel (which counsel may be in-house counsel of national reputation experienced in such matters that the Issuer entering into such Hedge Agreement will not cause the Issuer to become a “hedge fund or a private equity fund” as defined for the Third-Party Counterpartypurposes of Section 13 of the Bank Holding Company Act, as amended; (d) for the Third-Party Counterparty Issuer receives the consent of a Majority of the Controlling Class; (in form reasonably satisfactory e) the Global Rating Agency Condition has been satisfied; and (f) the Collateral Manager has certified to Administrative Agent the Issuer and upon which Administrative Agentthe Trustee that (A) the written terms of such Hedge Agreement directly relate to the Collateral Obligations and the Notes and (B) such Hedge Agreement reduces the interest rate and/or foreign exchange risks related to the Collateral Obligations and the Notes. IN WITNESS WHEREOF, we have set our hands as of the Lenders day and their respective successors year first written above. ADS CLO 1 LLC, as Issuer By Apollo Debt Solutions BDC, its designated manager By /s/ Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx Title: Chief Legal Officer DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee By /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: AVP By /s/ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Vice President
1. Xxxxxxx Xxxxx Investment Grade Corporate Master Index
2. CSFB Leveraged Loan Index
3. JPMorgan Domestic High Yield Index
4. Xxxxxxx Xxxxx High Yield Master Index
5. Deutsche Bank Leveraged Loan Index
6. Xxxxxxx Xxxxx/Loan Pricing Corporation Liquid Leveraged Loan Index
7. Morningstar/LSTA Leveraged Loan Index 1020000 Energy Equipment and assigns may relyServices 1030000 Oil, Gas and Consumable Fuels 1033403 Mortgage Real Estate Investment Trusts (REITs) which shall provide2020000 Chemicals 2030000 Construction Materials 2040000 Containers and Packaging 2050000 Metals and Mining 2060000 Paper and Forest Products 3020000 Aerospace and Defense 3030000 Building Products 3040000 Construction & Engineering 3050000 Electrical Equipment 3060000 Industrial Conglomerates 3070000 Machinery 3080000 Trading Companies and Distributors 3110000 Commercial Services and Supplies 3210000 Air Freight and Logistics 3220000 Passenger Airlines 3230000 Marine Transportation 3240000 Ground Transportation 3250000 Transportation Infrastructure 4011000 Automobile Components 4020000 Automobiles 4110000 Household Durables 4120000 Leisure Products 4130000 Textiles, in relevant partApparel and Luxury Goods 4210000 Hotels, that:Restaurants and Leisure 4300001 Entertainment 4300002 Interactive Media and Services 4310000 Media 4410000 Distributors 4430000 Broadline Retail 4440000 Specialty Retail 5020000 Consumer and Staples Distribution and Retail 5110000 Beverages 5120000 Food Products 5130000 Tobacco 5210000 Household Products
(a) Subject to clause (e) below, with respect to a Collateral Obligation, if the Third-Party Counterparty is duly organizedObligor of such Collateral Obligation has a CFR, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreementthen such CFR;
(b) Subject to clause (e) below, with respect to a Collateral Obligation, if not determined pursuant to clause (a) above, if the execution and delivery Obligor of such Collateral Obligation has one or more senior unsecured obligations with an Assigned Xxxxx’x Rating (other than any estimated rating), then the Third-Party Hedge Agreement Assigned Xxxxx’x Rating on any such obligation as selected by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of Collateral Manager in its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its propertysole discretion;
(c) all consentsSubject to clause (e) below, authorizations and approvals required with respect to a Collateral Obligation, if not determined pursuant to clauses (a) or (b) above, if the Obligor of such Collateral Obligation has one or more senior secured obligations with an Assigned Xxxxx’x Rating, then the Xxxxx’x rating that is one subcategory lower than the Assigned Xxxxx’x Rating on any such senior secured obligation as selected by the Collateral Manager in its sole discretion; provided that if a Collateral Obligation has an Assigned Xxxxx’x Rating determined pursuant to clause (A)(i) of the proviso to the definition of such term, the Xxxxx’x rating will be such Assigned Xxxxx’x Rating for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and90 day period set forth therein;
(d) Subject to clause (e) below, with respect to a Collateral Obligation if not determined pursuant to clauses (a), (b) or (c) above, the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered Collateral Manager may elect to use either (x) a rating estimated in good faith by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty Collateral Manager in accordance with its termsthe Xxxxx’x RiskCalc Calculation; provided that (1) no more than 20% (or such higher percentage as Xxxxx’x may confirm) of the Collateral Principal Amount may consist of Collateral Obligations that have a Xxxxx’x Default Probability Rating assigned using the Xxxxx’x RiskCalc Calculation (using GAAP audited financial statements) and (2) no more than 10% (or such higher percentage as Xxxxx’x may confirm) of the Collateral Principal Amount may consist of Collateral Obligations that have a Xxxxx’x Default Probability Rating assigned using the Xxxxx’x RiskCalc Calculation (using “quality of earnings” reports to make such calculation as permitted by the definition of “Pre-Qualifying Conditions”) or (y) if a rating estimate has been assigned to such Collateral Obligation by Xxxxx’x upon the request of the Issuer, subject the Collateral Manager or an Affiliate of the Collateral Manager, then such rating estimate as long as such rating estimate or a renewal for such rating estimate has been issued or provided by Moody’s in each case within the 15 month period preceding the date on which the Xxxxx’x Default Probability Rating is being determined; provided that, if such rating estimate has been issued or provided by Xxxxx’x for a period (x) longer than 12 months but not beyond 15 months, the Xxxxx’x Default Probability Rating will be one subcategory lower than such rating estimate and (y) beyond 15 months, the Xxxxx’x Default Probability Rating will be deemed to applicable bankruptcybe “Caa3;”
(e) If such Collateral Obligation is a DIP Collateral Obligation, insolvency the Xxxxx’x Derived Rating set forth in clause (a) in the definition thereof;
(f) With respect to a Collateral Obligation if not determined pursuant to any of clauses (a) through (e) above and similar laws affecting creditors’ rights generallyat the election of the Collateral Manager, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).the Xxxxx’x Derived Rating; and
Appears in 1 contract
Hedge Agreements. (1a) At Borrower’s optionOn the Closing Date, the Borrower Issuer shall enter into a hedge agreement (the “Initial Hedge Agreement”) with Xxxxxxx Xxxxx Capital Services Inc. (the “Initial Hedge Counterparty”). After the Closing Date, the Issuer may enter into one replacement or more additional Hedge AgreementsAgreements if on the date on which the Issuer enters into a replacement or additional Hedge Agreement, (i) each Hedge Counterparty entering into a Hedge Agreement on such date (or any Affiliate of such Hedge Counterparty that shall have absolutely and unconditionally guaranteed (using a form of guarantee complying with Standard & Poor’s then-current published criteria with respect to guarantees) the obligations of such Hedge Counterparty under the relevant Hedge Agreement) shall be required to satisfy the Hedge Counterparty Ratings Requirement, (ii) the Issuer shall collaterally assign its rights under such Hedge Agreement to the Trustee pursuant to this Indenture and such Hedge Counterparty shall consent to such assignment and (iii) the Rating Condition is satisfied. The Issuer shall enter into a Hedge Agreement only if (A) the relevant Hedge Counterparty shall be required in accordance with the terms of such Hedge Agreement to pay additional amounts to the Issuer sufficient to cover any withholding tax due on payments made by such Hedge Counterparty to the Issuer under such Hedge Agreement, subject to the Issuer making customary payee tax representations and providing customary tax documentation and (B) such Hedge Agreement contains “limited recourse” and “non-petition” provisions equivalent to the “limited recourse” and “non-petition” provisions set forth herein (mutatis mutandis).
(b) The Trustee shall, on behalf of the Issuer and in accordance with the Note Valuation Report, pay amounts due to each Hedge Counterparty under the Hedge Agreements on any Distribution Date subject to and in accordance with Section 11.1.
(c) Each Hedge Agreement shall provide that, in respect of any Hedge Counterparty or transferee:
(i) if the Hedge Rating Determining Party ceases to satisfy the Hedge Counterparty Ratings Requirement, then such Hedge Counterparty shall, within the period specified in the Hedge Agreement following such ratings downgrade (solely at Borrower’s option, be based on an Interest Period (each, an “Interest Rate Hedge Period”) of one (1) month. The economic and other benefits the expense of the Hedge Agreements and all Counterparty), enter into an agreement with the Issuer in the form of the ISDA Credit Support Annex providing for the posting of collateral, or obtain a guarantee or make an assignment to a replacement Hedge Counterparty or take such other action which satisfies the Rating Condition; and
(ii) if its Hedge Rating Determining Party fails to satisfy the Ratings Threshold, then the Hedge Counterparty shall either (x) immediately assign its rights and obligations in and under the related Hedge Agreement (at its own expense) to another Hedge Counterparty that has ratings at least equal to the Hedge Counterparty Ratings Requirement or (y) enter into any other agreement with or arrangement for the benefit of the Issuer and the Trustee that is reasonably satisfactory to the Trustee on behalf of the Issuer and that satisfies the Rating Condition.
(d) The Hedge Agreements will provide that upon the default by the relevant Hedge Counterparty in the payment when due of its obligations to the Issuer under such Hedge Agreement, the Issuer shall promptly provide written notice thereof to the Trustee and, if applicable, any guarantor of such Hedge Counterparty’s obligations under such Hedge Agreement. Upon its receipt of such notice (or, if earlier, when the Trustee becomes aware of such default) the Trustee shall make a demand on such Hedge Counterparty, or any guarantor, if applicable, demanding payment forthwith. The Trustee shall give notice to the Noteholders and each Rating Agency upon the continuance of the failure by such Hedge Counterparty to perform its obligations for two Business Days following a demand made by the Trustee on such Hedge Counterparty.
(e) If at any time any Hedge Agreement becomes subject to early termination due to the occurrence of an “event of default” or a "termination event" (each as defined in the relevant Hedge Agreement) where the Hedge Counterparty is the defaulting party or the affected party, the Issuer shall give prompt written notice thereof to the Trustee, and the Issuer and the Trustee shall take such actions (following the expiration of any applicable grace period) to enforce the rights of the Issuer and the Trustee thereunder, as instructed in writing by the Collateral Manager and as may be permitted by the terms of such Hedge Agreement and consistent with the terms hereof, and shall apply the proceeds of any such actions (including the proceeds of the liquidation of any collateral pledged by such Hedge Counterparty) to the costs of such actions and to the cost of entering into a replacement Hedge Agreement to be arranged and entered into by the Issuer on substantially identical terms or on such other terms with respect to which the Issuer has satisfied the Rating Condition. Any costs attributable to entering into a replacement Hedge Agreement which exceed the sum of the proceeds of the liquidation of the terminated Hedge Agreement shall be borne by the “defaulting party” or sole “affected party” (each as defined in the relevant Hedge Agreement) with respect to the applicable “event of default” or “termination event.” In determining the amount payable under the terminated Hedge Agreement, the Issuer will seek quotations from “Reference Market-makers” (as defined in the relevant Hedge Agreement) that satisfy the Hedge Counterparty Ratings Requirement. In addition, the Issuer will use its best efforts to cause the termination of a Hedge Agreement to become effective simultaneously with the entry into a replacement Hedge Agreement described as aforesaid.
(f) Each Hedge Agreement shall provide that (i) any amount payable to the Hedge Counterparty thereunder shall be collaterally assigned subject to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges Priority of Payments and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for is subject to termination on the benefit occurrence of Administrative Agent an Event of Default and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any liquidation of the obligations or duties of Borrower under any such Hedge AgreementCollateral.
(2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Appears in 1 contract
Hedge Agreements. (1a) At Borrower’s option, the Borrower The Issuer may enter into one Hedge Agreements from time to time on and after the Closing Date solely for the purpose of managing interest rate or more currency risks in connection with the Issuer’s issuance of, and making payments on, the Debt. The Issuer will promptly provide notice of entry into any Hedge AgreementsAgreement to the Collateral Trustee and a copy of any such Hedge Agreement to the Rating Agency. Each Hedge Agreement shall, at Borrower’s option, be based on an Interest Period will contain appropriate limited recourse and non-petition provisions equivalent (each, an “mutatis mutandis) to those contained in Section 2.7(i) and Section 5.4(d). Each Interest Rate Hedge Period”Counterparty (or its respective Hedge Guarantor) of one (1) month. The economic and other benefits of will be required to have, at the time that any Hedge Agreement to which it is a party is entered into, the Required Hedge Counterparty Ratings unless Rating Agency Confirmation is obtained from the applicable Rating Agency or credit support is provided as set forth in the Hedge Agreement. Payments with respect to Hedge Agreements and all will be subject to Article XI.
(b) In the event of the other rights thereunder shall be collaterally assigned to Administrative Agent as additional security for the Loans, pursuant to any early termination of a Hedge Agreement Pledge. All with respect to which the Hedge Agreement Pledges shall be accompanied by Counterparty is the sole “defaulting party” or “affected party” (each as defined in the Hedge Agreements), (i) Uniform Commercial Code financing statements, in duplicate, with respect any termination payment paid by the Hedge Counterparty to such pledges the Issuer may be paid to a replacement Hedge Counterparty at the direction of the Asset Manager and (ii) any payment received from a replacement Hedge Counterparty may be paid to the consent and agreement replaced Hedge Counterparty at the direction of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations Asset Manager under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such terminated Hedge Agreement.
(2c) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien The Collateral Trustee shall, upon receiving written notice of the Mortgage on exposure calculated under a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent credit support annex to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain if applicable, make a demand to the relevant Hedge Counterparty and deliver its credit support provider, if applicable, for securities having a value under such credit support annex equal to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; andcredit support amount.
(d) Each Hedge Agreement will, at a minimum, (i) include requirements for collateralization by or replacement of the Third-Party Hedge Counterparty (including timing requirements) that satisfy Rating Agency criteria in effect at the time of execution of the Hedge Agreement and (ii) permit the Issuer to terminate such agreement (with the Hedge Counterparty bearing the costs of any replacement Hedge Agreement, and ) for failure to satisfy such requirement.
(e) The Issuer will give prompt notice to the Rating Agency of any other termination of a Hedge Agreement or agreement which to provide Hedge Counterparty Credit Support. Any collateral received from a Hedge Counterparty under a Hedge Agreement shall be deposited in the Third-Party Hedge Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)Collateral Account.
Appears in 1 contract
Samples: Indenture and Security Agreement (Ares Capital Corp)
Hedge Agreements. (1a) At The Borrower shall obtain, or cause to be obtained by an Other Swap Pledgor, no later than thirty (30) days after the Closing Date and will at all times thereafter maintain, or cause to be maintained by an Other Swap Pledgor, in full force and effect, one or more Hedge Agreements in the aggregate notional amount equal to at least seventy-five percent (75%) of the Outstanding Principal Amount of the Loans at such time (the “Aggregate Notional Amount”), which Hedge Agreement(s) shall be approved by the Administrative Agent in its reasonable discretion with (A) Eurohypo or its Affiliates or (B) one or more other banks or insurance companies as counterparties (each a “Third-Party Counterparty”), which is effective to cause the All-in-Rate as to the applicable Aggregate Notional Amount commencing no later than the date that is thirty (30) days after the Closing Date (or, if such day is not a Business Day, the first Business Day thereafter) to be not in excess of 6.09% per annum through the Hedging Termination Date. Upon the Closing Date, the Borrower shall deliver, or cause to be delivered by an Other Swap Pledgor, a Hedge Agreement Pledge, substantially in the form of Exhibit G-1 attached hereto, together with, within thirty (30) days after the Closing Date the applicable bid package, confirmation and other documentation for such Hedge Agreement (including, without limitation, a certificate from an Authorized Officer of the Borrower certifying that a Hedge Agreement has been entered into on the terms set forth in the confirmation) as may be reasonably acceptable to the Administrative Agent evidencing compliance with the Borrower’s obligations under the provisions of this Section 8.19, and within the thirty (30) day period referred to above shall deliver the applicable counterparty acknowledgment. Any Hedge Agreement shall require monthly fixed rate and floating rate payments and be based on a LIBO Rate of interest having, at the Borrower’s option, the Borrower may enter into one or more Hedge Agreements. Each Hedge Agreement shall, at Borrower’s option, be based on an successive Interest Period Periods (each, an “Interest Rate Hedge Period”) of one, two, three, six or twelve months or such other Interest Periods satisfactory to the Administrative Agent in its reasonable discretion. Notwithstanding anything to the contrary contained in this Section 8.19, the Borrower or any Other Swap Pledgor shall be entitled to enter into one (1) month. The economic and other benefits or more Hedge Agreements in excess of the Aggregate Notional Amount, up to the total amount of the Commitments or providing interest rate protection for periods that extend beyond the Hedging Termination Date (each such agreement, but only to the extent that it, after giving effect to all other Hedge Agreements and all maintained pursuant to this Section 8.19(a), relates to a notional amount in excess of the other rights thereunder Aggregate Notional Amount or provides interest rate protection for periods that extend beyond the Hedging Termination Date, is referred to herein as an “Excess Hedge Agreement”) on terms acceptable to the Borrower or such Other Swap Pledgor; provided, however, that Borrower shall deliver, or cause to be collaterally assigned to delivered by an Other Swap Pledgor, upon the Administrative Agent as additional security for Agent’s request in accordance with the Loanstime requirements set forth in this Section 8.19(a), pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, Pledge with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such each Excess Hedge Agreement, substantially in the form of Exhibit G-2 attached hereto, together with the counterparty’s acknowledgment and other instruments provided to be delivered thereunder.
(2b) All of The Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Deeds of Trust and shall not be secured by any Lien on or in all or any portion of the collateral under the Security Documents or on or in Documents, any direct or indirect interest in Borrowerthe Borrower or any other Property (other than as permitted pursuant to Section 9.02(i)).
(4c) Borrower shall cause all payments payable by Any Hedge Agreement with a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon herein called a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a “Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver .” With respect to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the each Third-Party Counterparty) for Hedge Agreement maintained with respect to the Third-Party Counterparty (in form reasonably satisfactory Aggregate Notional Amount and each Excess Hedge Agreement pledged to the Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
pursuant to Section 8.19(a): (ai) the Third-Party Counterparty is duly organized, validly existing, and in good standing under providing such Third-Party Hedge Agreement must have a long term credit rating no lower than “A” from S&P or “A2” from Mxxxx’x at the laws time of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the entry into such Third-Party Hedge Agreement;
; provided, however, if there is a difference in the then current S&P rating and the Mxxxx’x rating, the lesser rating shall be applicable; (bii) the execution form and delivery of substance thereof must be satisfactory to the Third-Party Administrative Agent in its reasonable discretion and in all respects and (iii) each counterparty thereunder shall have delivered to the Administrative Agent a counterparty’s acknowledgment in the form attached to the Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws Pledge applicable thereto (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or in such other form as may be acceptable to the Administrative Agent in its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at lawreasonable discretion).
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Hedge Agreements. (a) The Borrower shall obtain, or cause to be obtained by an Other Swap Pledgor, on or prior to the Closing Date and will at all times thereafter maintain, or cause to be maintained by an Other Swap Pledgor, in full force and effect, one or more Hedge Agreements in the aggregate notional amount equal to at least one hundred percent (100%) of the Outstanding Principal Amount of the Loans at such time (the “Aggregate Notional Amount”), which Hedge Agreement(s) shall have an effective date not later than April 1, 2011 and shall be approved by the Administrative Agent in its reasonable discretion with (A) At a Wxxxx Fargo Counterparty, and/or (B) one or more of the counterparties identified on Schedule 8.19 attached hereto (or their respective Affiliates who have a long term credit rating no lower than “A” from S&P or “A2” from Mxxxx’x as of the time of execution of such Third-Party Hedge Agreement) or any other counterparty reasonably acceptable to Administrative Agent (each a “Third-Party Counterparty”), and which produces an All-in-Rate per annum through the Hedging Termination Date that is sufficient to satisfy a Debt Service Coverage Ratio for all of the Projects as of the Closing Date of not less than 1.20:1.00; provided, however, that if the Borrower enters into any Hedge Agreement, Borrower shall only be permitted to enter into a Hedge Agreement with a Wxxxx Fargo Counterparty. On or prior to the Closing Date, the Borrower shall deliver, or cause Other Swap Pledgor to deliver, a Hedge Agreement Pledge substantially in the form of Exhibit G-1 attached hereto, together with the Hedge Agreement and other documentation for such Hedge Agreement as may be reasonably acceptable to the Administrative Agent, and within thirty (30) days following the Closing Date deliver the counterparty acknowledgment executed by the counterparty thereto in the form attached to the Hedge Agreement Pledge or in form and substance otherwise satisfactory to the Administrative Agent. Any Hedge Agreement shall require monthly fixed rate and floating rate payments and be based on a LIBO Rate of interest having, at the Borrower’s option, the Borrower may enter into one or more Hedge Agreements. Each Hedge Agreement shall, at Borrower’s option, be based on an successive Interest Period Periods (each, an “Interest Rate Hedge Period”) of one, two, three, six or twelve months or such other Interest Periods satisfactory to the Administrative Agent in its reasonable discretion. Notwithstanding anything to the contrary contained in this Section 8.19, the Borrower or any Other Swap Pledgor shall be entitled to enter into one (1) month. The economic and other benefits or more Hedge Agreements in excess of the Aggregate Notional Amount, up to the total amount of the Commitments or providing interest rate protection for periods that extend beyond the Hedging Termination Date (each such agreement, but only to the extent that it, after giving effect to all other Hedge Agreements and all maintained pursuant to this Section 8.19(a), relates to a notional amount in excess of the other rights thereunder Aggregate Notional Amount or provides interest rate protection for periods that extend beyond the Hedging Termination Date, is referred to herein as an “Excess Hedge Agreement”) on terms acceptable to the Borrower or such Other Swap Pledgor; provided, however, that Borrower shall deliver, or cause to be collaterally assigned to delivered by an Other Swap Pledgor, upon the Administrative Agent as additional security for Agent’s request in accordance with the Loanstime requirements set forth in this Section 8.19(a), pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, Pledge with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such each Excess Hedge Agreement, substantially in the form of Exhibit G-2 attached hereto, together with the counterparty’s acknowledgment and other instruments provided to be delivered thereunder.
(2b) All No Hedge Agreement, other than a Wxxxx Fargo Hedge Agreement, shall be secured by the Deeds of Trust. Notwithstanding the foregoing, all of Borrower’s obligations under any Wxxxx Fargo Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage Deeds of Trust and the other Security Documents on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3c) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (is herein called a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement ” With respect to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain Agreement maintained with respect to the Aggregate Notional Amount and deliver each Excess Hedge Agreement pledged to the Administrative Agent an opinion from counsel pursuant to Section 8.19(a): (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(ai) the Third-Party Counterparty is duly organized, validly existing, and in good standing under providing such Third-Party Hedge Agreement must have a long term credit rating no lower than “A” from S&P or “A2” from Mxxxx’x at the laws time of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the entry into such Third-Party Hedge Agreement;
; provided, however, if there is a difference in the then current S&P rating and the Mxxxx’x rating, the lesser rating shall be applicable; (bii) the execution form and delivery of substance thereof must be satisfactory to the Third-Party Administrative Agent in its reasonable discretion and in all respects and (iii) each counterparty thereunder shall have delivered to the Administrative Agent a counterparty’s acknowledgment in the form attached to the Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws Pledge applicable thereto (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or in such other form as may be acceptable to the Administrative Agent in its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at lawreasonable discretion).
Appears in 1 contract
Samples: Loan Agreement (Douglas Emmett Inc)
Hedge Agreements. (1) At Borrower will (A) within ten (10) days after the Closing Date, enter into, and shall at all times thereafter maintain in full force and effect, a Hedge Agreement in the notional amount equal to $45,000,000, and (B) within ten (10) days after the date that Eurohypo has syndicated the Loans to the extent that the remaining principal amount of the Loans held by Eurohypo is not greater than $45,000,000, enter into, and shall at all times thereafter maintain in full force and effect, a Hedge Agreement in (or increase the existing Hedge Agreement by) the notional amount equal to $45,000,000 (for a total of $90,000,000), in each case (under the foregoing clauses (A) and (B)) reasonably satisfactory to Administrative Agent with (i) a Eurohypo Counterparty or (ii) one or more other banks or insurance companies (each a "Third-Party Counterparty"), that shall have the effect of capping the LIBOR rate at five percent (5%) per annum through the Maturity Date. The Hedge Agreement shall require monthly fixed rate and floating rate payments and be based on a LIBOR Rate of interest having successive Interest Periods (an "Interest Rate Hedge Period") of one month or such other Interest Periods reasonably satisfactory to Administrative Agent. Prior to entering into any Third-Party Hedge Agreement, Borrower shall notify Eurohypo in writing of its intention to enter into such Third-Party Hedge Agreement, which notice shall include a description of the terms and conditions upon which Borrower is willing to enter into same and, in such event, Eurohypo shall have a right of first refusal to enter into (or cause another Eurohypo Counterparty to enter into) a Hedge Agreement with Borrower on the same terms and otherwise on such terms and conditions as the parties thereto shall agree.
(2) All of Borrower’s option's obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents. Borrower's rights under or in respect of any Hedge Agreement shall be assigned to Administrative Agent pursuant to a Hedge Agreement Pledge.
(3) Any Hedge Agreement with Third-Party Counterparties is herein called a "Third-Party Hedge Agreement". With respect to each Third-Party Hedge Agreement (i) Borrower's obligations thereunder shall not be secured by the Mortgage and shall not be secured by any Lien on or in all or any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower; (ii) the Third-Party Counterparty providing such Third-Party Hedge Agreement must have a long term credit rating no lower than "AA" from S&P at the time of entry into such Third-Party Hedge Agreement; (iii) the form and substance must be reasonably satisfactory to Administrative Agent; (iv) such Third-Party Hedge Agreement shall provide pursuant to its terms that it may not be terminated for any reason other than upon the repayment in full of all of the obligations under the Loan Documents or upon acceleration of the Loans, and (v) the Third-Party Counterparty providing such Third-Party Hedge Agreement must enter into a written agreement with Administrative Agent providing Administrative Agent with the ability to cure any Borrower may defaults under the Third-Party Hedge Agreement and to maintain the Third-Party Hedge Agreement in full force and effect after the occurrence of any Borrower default or other Borrower caused termination event thereunder caused by Borrower, which agreement must be in form and substance acceptable to Administrative Agent in its reasonable discretion and in all respects and shall in no event obligate Administrative Agent to perform any of Borrower's obligations thereunder.
(4) In the event of any downgrade, withdrawal or qualification of the rating of the a Third-Party Counterparty below "AA" by S&P Borrower shall replace the Hedge Agreement with a replacement Hedge Agreement meeting the requirements of this Section 9.15 not later than fifteen (15) Business Days after learning of such downgrade, withdrawal or qualification.
(5) If Borrower fails for any reason or cause whatsoever to secure a Hedge Agreement as and when required to do so hereunder, such failure shall constitute an Event of Default and Administrative Agent shall be entitled to exercise all rights and remedies available to it under this Agreement and the other Loan Documents or otherwise, including the right (but not the obligation) of Administrative Agent to secure or otherwise enter into one or more Hedge AgreementsAgreements with a Lender for and on behalf of Borrower without such action constituting a cure of such Event of Default and without waiving Administrative Agent's or Lenders' rights arising out of or in connection with such Event of Default. Each If Administrative Agent shall enter into a Hedge Agreement with a Lender in accordance with its right to do so pursuant to this subsection (5), then (i) the terms and provisions of any such Hedge Agreement, including the term thereof, shall be reasonably determined by Administrative Agent and (ii) Borrower shall pay all of Administrative Agent's costs and expenses in connection therewith, including any fees charged by the applicable counterparty, attorneys' fees and disbursements, and the cost of additional title insurance in an amount determined by Administrative Agent to be necessary to protect Administrative Agent and the Lenders from potential funding losses under any Hedge Agreement provided by Administrative Agent.
(6) Borrower shall, at Borrower’s optionits sole cost and expense, be based on an Interest Period provide Administrative Agent with such additional title insurance coverage and endorsements to the title policy (eachor, an “Interest Rate if such additional title insurance is not available by endorsement, Borrower shall provide separate title insurance policies with respect thereto) as Administrative Agent shall reasonably require in connection with any Hedge Period”Agreement provided by Administrative Agent under subsection (5) of one this Section 9.15.
(17) month. If Borrower is entitled to receive a payment under any Hedge Agreement upon a termination thereof, such payment shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due to Administrative Agent or the Lenders under the Loan Documents in such order and priority as Administrative Agent shall determine in its sole and absolute discretion.
(8) The economic and other benefits of the Hedge Agreements secured by Borrower and all of the other rights of Borrower thereunder shall be collaterally assigned to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such Hedge Agreement.
(2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(69) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). If any Hedge Agreement delivered by Borrower to Administrative Agent, shall by its terms, expire prior to the Maturity Date, Borrower shall deliver to Administrative Agent a replacement Hedge Agreement at least ten (10) Business Days prior to the expiration date of the then current Hedge Agreement which replacement Hedge Agreement shall be acceptable to Administrative Agent in its reasonable discretion and otherwise satisfy the requirements of this Section 9.15.
Appears in 1 contract
Hedge Agreements. (1i) At Borrower’s option, the Borrower may enter into one or more Hedge Agreements. Each Hedge Agreement shall either be in the form of an interest rate cap or an interest rate swap, or a combination thereof, in each case between the Issuer and a Qualified Hedge Counterparty, with an effective date on or prior to a Funding Date.
(ii) In the case of an interest rate swap, the related Hedge Agreement shall provide for the payment on each Payment Date to the related Hedge Counterparty of interest on the notional amount thereof at a fixed rate per annum and the payment to the Indenture Trustee for deposit into the Collection Account of a floating rate per annum equal to the LIBOR Rate for each Interest Accrual Period; provided that the Issuer and the Hedge Counterparties may, subject to the related Hedge Agreements, make payments on a net basis; provided, further, that the fixed rate per annum paid to a Hedge Counterparty under an interest rate swap shall not exceed the weighted average coupon for the Borrowing Base Loans as of the last day of the related Due Period, less 8.50%.
(iii) In the case of an interest rate cap, the related Hedge Agreement shall provide for the payment by the Hedge Counterparty to the Indenture Trustee for deposit into the Collection Account on each Payment Date if the LIBOR Rate is greater than the Required Cap Rate for the related Interest Accrual Period, if any.
(iv) Any confirmation related to the ISDA Master Agreement and schedule thereto or long form confirmation, in each case, in the form of interest rate swaps, shall terminate on the last day that the Notes are assumed to be Outstanding based on the Hedge Amortization Schedules.
(v) Each Hedge Agreement may permit, if the related Hedge Counterparty fails to meet the rating requirements in clause (a) of the definition of Qualified Hedge Counterparty, such related Hedge Counterparty to post collateral to secure its obligations under the related Hedge Agreement. To the extent such Hedge Agreement permits the posting of collateral, such Hedge Agreement shall require the following terms (the “Hedge Agreement Collateral Posting Requirements”):
(A) the Hedge Counterparty shall, within 15 days’ of failing to meet such rating requirement, secure its obligations under the related Hedge Agreement, by posting collateral to the Indenture Trustee for deposit into the Hedge Collateral Account in an amount equal to the Hedge Collateral Amount; KL2 2780484.5
(B) the Hedge Counterparty shall, at Borrower’s optionleast on a weekly basis, be based xxxx-to-market the related Hedge Agreement (pursuant to the terms thereof) and post additional collateral, as necessary such that the amount on an Interest Period (each, an “Interest Rate Hedge Period”) of one (1) month. The economic and other benefits of deposit in the Hedge Agreements and all of the other rights thereunder shall be collaterally assigned Collateral Account is at least equal to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such Hedge Agreement.
(2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performanceCollateral Amount; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Appears in 1 contract
Samples: Omnibus Amendment (Marriott Vacations Worldwide Corp)
Hedge Agreements. (1a) At Borrower’s option, The Issuer (or the Borrower Collateral Manager on behalf of the Issuer) may enter into one Hedge Agreements from time to time after the Closing Date only if it obtains written advice of counsel that such Hedge Agreement will not cause the Issuer or more the Collateral Manager to be required to register with the CFTC or that the Issuer and the Collateral Manager would be eligible for an exemption to the requirement to register with the CFTC, for the purpose of managing interest rate and other risks in connection with the Issuer's issuance of, and making payments on, the Notes. Once entered into, a Hedge AgreementsAgreement shall not be terminated unless the related hedged asset has been liquidated. The Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly provide written notice of entry into any Hedge Agreement to the Trustee and the Collateral Administrator. Notwithstanding anything to the contrary contained in this Indenture, the Issuer (or the Collateral Manager on behalf of the Issuer) shall not enter into any Hedge Agreement unless the Rating Agency Condition has been satisfied with respect thereto. The Issuer shall provide a copy of each Hedge Agreement to each Rating Agency then rating a Class of Rated Notes and the Trustee.
(b) Each Hedge Agreement shall contain appropriate limited recourse and non-petition provisions equivalent (mutatis mutandis) to those contained in Section 5.4(d) and Section 2.7(i). Each Hedge Counterparty shall be required to have, at the time that any Hedge Agreement to which it is a party is entered into, the Required Hedge Counterparty Ratings. Payments with respect to Hedge Agreements shall be subject to Article XI. Each Hedge Agreement shall, at Borrower’s option, be based on shall contain an Interest Period (each, an “Interest Rate acknowledgement by the Hedge Period”) of one (1) month. The economic and other benefits Counterparty that the obligations of the Issuer to the Hedge Agreements and all of Counterparty under the other rights thereunder relevant Hedge Agreement shall be collaterally assigned to Administrative Agent as additional security for payable in accordance with Article XI.
(c) In the Loans, pursuant to event of any early termination of a Hedge Agreement Pledge. All with respect to which the Hedge Agreement Pledges shall be accompanied by Counterparty is the sole "defaulting party" or "affected party" (each as defined in the Hedge Agreements), notwithstanding any term hereof to the contrary, (i) Uniform Commercial Code financing statements, in duplicate, with respect any termination payment paid by the Hedge Counterparty to such pledges the Issuer may be paid to a replacement Hedge Counterparty at the direction of the Collateral Manager and (ii) any payment received from a replacement Hedge Counterparty may be paid to the consent and agreement replaced Hedge Counterparty at the direction of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations Collateral Manager under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such terminated Hedge Agreement.
(2d) All The Issuer (or the Collateral Manager on its behalf) shall, upon receiving written notice of Borrower’s obligations the exposure calculated under a credit support annex to any Hedge Agreement provided by Agreement, if applicable, make a Eurohypo demand to the relevant Hedge Counterparty shall be secured by and its credit support provider, if applicable, for securities having a value under such credit support annex equal to the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documentsrequired credit support amount.
(3e) Any Each Hedge Agreement entered into with one will, at a minimum, (i) include requirements for collateralization by or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo replacement of the Hedge Counterparty (including timing requirements) that satisfy Rating Agency criteria of each Rating Agency then rating a “Third-Party Class of Rated Notes in effect at the time of execution of the Hedge Agreement and (ii) permit the Issuer to terminate such agreement (with the Hedge Counterparty bearing the costs of any replacement Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrowerfor failure to satisfy such requirement.
(4f) Borrower The Issuer shall cause all payments payable by give prompt notice to each Rating Agency then rating a Third-Party Class of Rated Notes of any termination of a Hedge Agreement or agreement to provide Hedge Counterparty Credit Support. Any collateral received from a Hedge Counterparty under a Hedge Agreement shall be deposited in the Hedge Counterparty Collateral Account.
(g) If a Hedge Counterparty has defaulted in the payment when due of its obligations to the Issuer under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On Agreement, promptly after becoming aware thereof the due date for interest Collateral Manager shall make a demand on the Loans each month, Hedge Counterparty (or its guarantor under the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated Hedge Agreement) with a copy to the Interest Reserve for such purposeTrustee, and before applying any Operating Revenues for such purposedemanding payment thereunder.
(5h) Any payment due from the counterparty under any Each Hedge Agreement upon a termination thereof, shall provide that it may not be delivered terminated due to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent occurrence of an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws Event of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery Default until liquidation of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty Collateral has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).commenced. [Signature Page Follows]
Appears in 1 contract
Samples: Indenture (Garrison Capital Inc.)
Hedge Agreements. (1) At Borrower’s option, In the Borrower may enter event there shall have been issued or entered into one in respect of all or more Hedge Agreements. Each Hedge Agreement shall, at Borrower’s option, be based on an Interest Period (each, an “Interest Rate Hedge Period”) a portion of one (1) month. The economic and other benefits of the Hedge Agreements and all of the other rights thereunder shall be collaterally assigned to Administrative Agent as additional security for the Loans, pursuant to any Debt a Hedge Agreement Pledge. All and (A) interest on such Debt or portion of such Debt is payable at a variable rate of interest for any future period of time or is calculated at a varying rate per annum, (B) a fixed rate is specified as payable by the Company or any Restricted Subsidiary issuing such Debt in such Hedge Agreement Pledges shall be accompanied or such Debt taken together with the Hedge Agreement results in a net fixed rate payable by the Company or such Restricted Subsidiary for such period of time (ithe “Hedge Fixed Rate”), (C) Uniform Commercial Code financing statements, in duplicate, with respect the counterparty to such pledges Hedge Agreement is rated in the two highest generic rating categories by any Rating Agency and (iiD) the consent an event of default has not occurred and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations is continuing under such Hedge Agreement, then such Debt shall be deemed for all purposes hereunder to bear interest for such period of time at the Hedge Fixed Rate and all provisions hereof applicable for fixed rate debt shall apply with respect thereto. Conversely, in the event there shall have been issued or entered into in respect of all or a portion of any Debt, a Hedge Agreement and (A) interest on such Debt or portion of such Debt is payable at a fixed rate of interest for any future period of time or is calculated at a fixed rate per annum, (B) a variable rate is specified as payable by the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on Company or any Restricted Subsidiary issuing such Debt in such Hedge Agreement Pledge or such Debt taken together with the Hedge Agreement results in a net variable rate payable by the Company or such Restricted Subsidiary for such period of time (the “Hedge Variable Rate”), (C) the counterparty to such Hedge Agreement is rated in the two highest generic rating categories by any Rating Agency and (D) an acknowledgement that Administrative Agent shall event of default has not be deemed to have assumed any of the obligations or duties of Borrower occurred and is continuing under any such Hedge Agreement.
(2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty , then such Debt shall be secured by the lien deemed for all purposes hereunder to bear interest for such period of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under time at the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date Variable Rate and all provisions hereof applicable for interest on the Loans each month, the amounts so deposited in such account variable rate debt shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purposeapply with respect thereto.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Appears in 1 contract
Samples: Participation Agreement (Tri-State Generation & Transmission Association, Inc.)
Hedge Agreements. 6.2.1 The parties will use their respective reasonable endeavours to procure that the Hedge Agreements are novated from Findus Treasury Limited to an entity nominated by the Buyer (1“Nominated Entity”) At Borrowerwith the novation to take effect from Completion. Without prejudice to the generality of the foregoing, reasonable endeavours shall include:
(a) in the case of the Buyer:
(i) using reasonable endeavours to offer to the counterparties to the Hedge Agreements commercially reasonable security for performance of any obligation of a member of the Buyer’s optionGroup or, post Completion, the Borrower may enter into one or more Group, pursuant to the Hedge Agreements. Each , including the ability to draw down amounts from a credit facility available to the Group or Buyer’s Group following Completion; and
(ii) negotiating in good faith with the counterparties to the Hedge Agreement shallAgreements, at Borrower’s option, be based on an Interest Period (each, an “Interest Rate Hedge Period”) of one (1) month. The economic and other benefits any amendments to the terms of the Hedge Agreements Agreements, including the terms of any ISDA master agreement and all of schedule required by such counterparty to the other rights thereunder shall be collaterally assigned to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such Hedge Agreement.
(2b) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by on the lien part of the Mortgage on a pari passu basis Seller:
(i) cooperating with the Loans counterparties to the Hedge Agreements and other sums evidenced or secured by the Loan DocumentsBuyer to effect such novation; and
(ii) providing to the Buyer, such information as may be reasonably required to facilitate such novation.
(3) Any Hedge Agreement entered into 6.2.2 If the parties have performed their obligations in accordance with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each monthclause 6.2.1 but no novation has taken place upon Completion, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, thatthen:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under Seller may terminate the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge AgreementAgreements;
(b) the execution agreements between Findus Treasury Limited and delivery any member of the Third-Party Group passing on the benefit or burden of a Hedge Agreement by shall automatically terminate at the Third-Party Counterparty, same time as the termination of the respective Hedge Agreement and any other agreement which accrued rights, obligations and liabilities shall be waived by Findus Treasury Limited and, the Third-Party Counterparty has executed parties shall procure, by each member of the Group and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized be dealt with solely by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its propertythis clause 6.2;
(c) all consents, authorizations and approvals required for the execution and delivery if an amount is received by the Third-Party Counterparty any member of the Third-Party Seller’s Group from the counterparty to a Hedge Agreement, and any other agreement which then the Third-Party Counterparty has executed and delivered pursuant theretoSeller shall pay to the Buyer the amount so received, and less the performance reasonable third party expenses of its obligations thereunder have been obtained and remain in full force and effectrecovering such amount, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performancewithin 5 Business Days of receipt; and
(d) if an amount is payable by the Third-Party Seller to the counterparty to a Hedge Agreement, and any other agreement which then the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered Buyer shall pay to the Seller the amount so payable at the same time as that amount is payable by the Third-Party Counterparty and constitutes Seller to the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)counterparty.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement
Hedge Agreements. (1a) At Borrower’s optionOn the Closing Date, the Borrower Issuer shall enter into a hedge agreement (the “Initial Hedge Agreement”) with Xxxxxxx Xxxxx Capital Services Inc. (the “Initial Hedge Counterparty”). After the Closing Date, the Issuer may enter into one replacement or more additional Hedge AgreementsAgreements if on the date on which the Issuer enters into a replacement or additional Hedge Agreement, (i) each Hedge Counterparty entering into a Hedge Agreement on such date (or any Affiliate of such Hedge Counterparty that shall have absolutely and unconditionally guaranteed (using a form of guarantee complying with Standard & Poor’s then-current published criteria with respect to guarantees) the obligations of such Hedge Counterparty under the relevant Hedge Agreement) shall be required to satisfy the Hedge Counterparty Ratings Requirement, (ii) the Issuer shall collaterally assign its rights under such Hedge Agreement to the Trustee pursuant to this Indenture and such Hedge Counterparty shall consent to such assignment and (iii) the Rating Condition is satisfied. The Issuer shall enter into a Hedge Agreement only if (A) the relevant Hedge Counterparty shall be required in accordance with the terms of such Hedge Agreement to pay additional amounts to the Issuer sufficient to cover any withholding tax due on payments made by such Hedge Counterparty to the Issuer under such Hedge Agreement, subject to the Issuer making customary payee tax representations and providing customary tax documentation and (B) such Hedge Agreement contains “limited recourse” and “non-petition” provisions equivalent to the “limited recourse” and “non-petition” provisions set forth herein (mutatis mutandis).
(b) The Trustee shall, on behalf of the Issuer and in accordance with the Note Valuation Report, pay amounts due to each Hedge Counterparty under the Hedge Agreements on any Distribution Date subject to and in accordance with Section 11.1.
(c) Each Hedge Agreement shall provide that, in respect of any Hedge Counterparty or transferee:
(i) if the Hedge Rating Determining Party ceases to satisfy the Hedge Counterparty Ratings Requirement, then such Hedge Counterparty shall, within the period specified in the Hedge Agreement following such ratings downgrade (solely at Borrower’s option, be based on an Interest Period (each, an “Interest Rate Hedge Period”) of one (1) month. The economic and other benefits the expense of the Hedge Agreements and all Counterparty), enter into an agreement with the Issuer in the form of the ISDA Credit Support Annex providing for the posting of collateral, or obtain a guarantee or make an assignment to a replacement Hedge Counterparty or take such other action which satisfies the Rating Condition; and
(ii) if its Hedge Rating Determining Party fails to satisfy the Ratings Threshold, then the Hedge Counterparty shall either (x) immediately assign its rights and obligations in and under the related Hedge Agreement (at its own expense) to another Hedge Counterparty that has ratings at least equal to the Hedge Counterparty Ratings Requirement or (y) enter into any other agreement with or arrangement for the benefit of the Issuer and the Trustee that is reasonably satisfactory to the Trustee on behalf of the Issuer and that satisfies the Rating Condition.
(d) The Hedge Agreements will provide that upon the default by the relevant Hedge Counterparty in the payment when due of its obligations to the Issuer under such Hedge Agreement, the Issuer shall promptly provide written notice thereof to the Trustee and, if applicable, any guarantor of such Hedge Counterparty's obligations under such Hedge Agreement. Upon its receipt of such notice (or, if earlier, when the Trustee becomes aware of such default) the Trustee shall make a demand on such Hedge Counterparty, or any guarantor, if applicable, demanding payment forthwith. The Trustee shall give notice to the Noteholders and each Rating Agency upon the continuance of the failure by such Hedge Counterparty to perform its obligations for two Business Days following a demand made by the Trustee on such Hedge Counterparty.
(e) If at any time any Hedge Agreement becomes subject to early termination due to the occurrence of an “event of default” or a “termination event” (each as defined in the relevant Hedge Agreement) where the Hedge Counterparty is the defaulting party or the affected party, the Issuer shall give prompt written notice thereof to the Trustee, and the Issuer and the Trustee shall take such actions (following the expiration of any applicable grace period) to enforce the rights of the Issuer and the Trustee thereunder, as instructed in writing by the Collateral Manager and as may be permitted by the terms of such Hedge Agreement and consistent with the terms hereof, and shall apply the proceeds of any such actions (including the proceeds of the liquidation of any collateral pledged by such Hedge Counterparty) to the costs of such actions and to the cost of entering into a replacement Hedge Agreement to be arranged and entered into by the Issuer on substantially identical terms or on such other terms with respect to which the Issuer has satisfied the Rating Condition. Any costs attributable to entering into a replacement Hedge Agreement which exceed the sum of the proceeds of the liquidation of the terminated Hedge Agreement shall be borne by the “defaulting party” or sole “affected party” (each as defined in the relevant Hedge Agreement) with respect to the applicable “event of default” or “termination event.” In determining the amount payable under the terminated Hedge Agreement, the Issuer will seek quotations from “Reference Market-makers” (as defined in the relevant Hedge Agreement) that satisfy the Hedge Counterparty Ratings Requirement. In addition, the Issuer will use its best efforts to cause the termination of a Hedge Agreement to become effective simultaneously with the entry into a replacement Hedge Agreement described as aforesaid.
(f) Each Hedge Agreement shall provide that (i) any amount payable to the Hedge Counterparty thereunder shall be collaterally assigned subject to Administrative Agent as additional security for the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall be accompanied by (i) Uniform Commercial Code financing statements, in duplicate, with respect to such pledges Priority of Payments and (ii) the consent and agreement of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations under such Hedge Agreement for is subject to termination on the benefit occurrence of Administrative Agent an Event of Default and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any liquidation of the obligations or duties of Borrower under any such Hedge AgreementCollateral.
(2) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Appears in 1 contract
Hedge Agreements. (a) With the consent of a Majority of the Controlling Class, the Issuer (or the Collateral Manager on behalf of the Issuer) may enter into Hedge Agreements from time to time on or after the Closing Date solely for the purpose of managing interest rate risks in connection with the Issuer’s issuance and incurrence of, and making payments on, the Debt. The Issuer may not enter into a Hedge Agreement unless (1) At Borrower’s optioneither (x) it obtains an Opinion of Counsel that such Hedge Agreement would not cause the Issuer or Collateral Manager to be required to register with the CFTC or that the Issuer and Collateral Manager would be eligible for an exemption to the requirement to register with the CFTC or (y) the Collateral Manager has registered or will register as a commodity pool operator and will comply with the requirements of the CFTC relating thereto and (2) such Hedge Agreement complies with any mandatory clearing or posting and/or collecting of initial or variation margin that, in each case, the Borrower may Collateral Manager determines applies to such Hedge Agreement. The Issuer (or the Collateral Manager on behalf of the Issuer) shall promptly provide written notice of entry into any Hedge Agreement to the Collateral Trustee and the Collateral Administrator. Notwithstanding anything to the contrary contained in this Indenture, the Issuer (or the Collateral Manager on behalf of the Issuer) shall not enter into one any Hedge Agreement unless the Global Rating Agency Condition has been satisfied with respect thereto. The Issuer shall provide a copy of each Hedge Agreement to each Rating Agency and the Collateral Trustee.
(b) Each Hedge Agreement shall contain appropriate limited recourse and non-petition provisions substantially equivalent to those contained in Section 5.4(d) (Remedies) and Section 2.7(i) (Payment of Principal and Interest and Other Amounts; Principal and Interest Rights Preserved). Each Hedge Counterparty shall be required to have, at the time that any Hedge Agreement to which it is a party is entered into, the Required Hedge Counterparty Ratings unless the Global Rating Agency Condition is satisfied or more credit support is provided as set forth in the Hedge AgreementsAgreement. Payments with respect to Hedge Agreements shall be subject to Article XI. Each Hedge Agreement shall, at Borrower’s option, be based on shall contain an Interest Period (each, an “Interest Rate acknowledgement by the Hedge Period”) of one (1) month. The economic and other benefits Counterparty that the obligations of the Issuer to the Hedge Agreements and all of Counterparty under the other rights thereunder relevant Hedge Agreement shall be collaterally assigned to Administrative Agent as additional security for payable in accordance with Article XI.
(c) In the Loans, pursuant to event of any early termination of a Hedge Agreement Pledge. All with respect to which the Hedge Agreement Pledges shall be accompanied by Counterparty is the sole “defaulting party” or “affected party” (each as defined in the Hedge Agreements), notwithstanding any term hereof to the contrary, (i) Uniform Commercial Code financing statements, in duplicate, with respect any termination payment paid by the Hedge Counterparty to such pledges the Issuer may be paid to a replacement Hedge Counterparty at the direction of the Collateral Manager and (ii) any payment received from a replacement Hedge Counterparty may be paid to the consent and agreement replaced Hedge Counterparty at the direction of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations Collateral Manager under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such terminated Hedge Agreement.
(2d) All The Issuer (or the Collateral Manager on its behalf) shall, upon receiving written notice of Borrower’s obligations the exposure calculated under a credit support annex to any Hedge Agreement provided by Agreement, if applicable, make a Eurohypo demand to the relevant Hedge Counterparty shall be secured by and its credit support provider, if applicable, for securities having a value under such credit support annex equal to the lien of the Mortgage on a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documentsrequired credit support amount.
(3e) Any The Issuer shall give prompt notice to each Rating Agency of any termination of a Hedge Agreement entered into with one or more banks or insurance companies (each agreement to provide Hedge Counterparty credit support. Any collateral received from a “Third-Party Counterparty”) other than Hedge Counterparty under a Eurohypo Hedge Agreement shall be deposited in the Hedge Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in BorrowerCollateral Account.
(4f) Borrower shall cause all payments payable by If a Third-Party Hedge Counterparty has defaulted in the payment when due of its obligations to the Issuer under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On Agreement, promptly after becoming aware thereof the due date for interest Issuer shall make a demand on the Loans each month, Hedge Counterparty (or its guarantor under the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated Hedge Agreement) with a copy to the Interest Reserve for such purposeCollateral Trustee, and before applying any Operating Revenues for such purposedemanding payment thereunder.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain and deliver to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Appears in 1 contract
Samples: Indenture and Security Agreement (Varagon Capital Corp)
Hedge Agreements. (1a) At Borrower’s option, the Borrower The Issuer may enter into one Hedge Agreements from time to time on and after the Closing Date solely for the purpose of managing interest rate or more currency risks in connection with the Issuer's issuance of, and making payments on, the Notes. The Issuer will promptly provide notice of entry into any Hedge AgreementsAgreement to the Trustee and a copy of any such Hedge Agreement to the Rating Agency. Each Hedge Agreement shall, at Borrower’s option, be based on an Interest Period will contain appropriate limited recourse and non-petition provisions equivalent (each, an “mutatis mutandis) to those contained in Section 2.7(i) and Section 5.4(d). Each Interest Rate Hedge Period”Counterparty (or its respective Hedge Guarantor) of one (1) month. The economic and other benefits of will be required to have, at the time that any Hedge Agreement to which it is a party is entered into, the Required Hedge Counterparty Ratings unless Rating Agency Confirmation is obtained from the applicable Rating Agency or credit support is provided as set forth in the Hedge Agreement. Payments with respect to Hedge Agreements and all will be subject to Article XI.
(b) In the event of the other rights thereunder shall be collaterally assigned to Administrative Agent as additional security for the Loans, pursuant to any early termination of a Hedge Agreement Pledge. All with respect to which the Hedge Agreement Pledges shall be accompanied by Counterparty is the sole "defaulting party" or "affected party" (each as defined in the Hedge Agreements), (i) Uniform Commercial Code financing statements, in duplicate, with respect any termination payment paid by the Hedge Counterparty to such pledges the Issuer may be paid to a replacement Hedge Counterparty at the direction of the Asset Manager and (ii) any payment received from a replacement Hedge Counterparty may be paid to the consent and agreement replaced Hedge Counterparty at the direction of the counterparty thereunder that it will pay all amounts due thereunder to an account designated by Administrative Agent and will continue to perform its obligations Asset Manager under such Hedge Agreement for the benefit of Administrative Agent and the Lenders after enforcement of and/or realization on such Hedge Agreement Pledge and an acknowledgement that Administrative Agent shall not be deemed to have assumed any of the obligations or duties of Borrower under any such terminated Hedge Agreement.
(2c) All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo Counterparty shall be secured by the lien The Trustee shall, upon receiving written notice of the Mortgage on exposure calculated under a pari passu basis with the Loans and other sums evidenced or secured by the Loan Documents.
(3) Any Hedge Agreement entered into with one or more banks or insurance companies (each a “Third-Party Counterparty”) other than a Eurohypo Counterparty (a “Third-Party Hedge Agreement”) shall not be secured by the Mortgage or a Lien on any portion of the collateral under the Security Documents or on or in any direct or indirect interest in Borrower.
(4) Borrower shall cause all payments payable by a Third-Party Counterparty under the Hedge Agreement to be deposited into an account designated by Administrative Agent. On the due date for interest on the Loans each month, the amounts so deposited in such account shall be debited, and applied to pay the accrued but unpaid interest on the Loans due on such date, before applying any portion of the Loan proceeds which is allocated to the Interest Reserve for such purpose, and before applying any Operating Revenues for such purpose.
(5) Any payment due from the counterparty under any Hedge Agreement upon a termination thereof, shall be delivered to Administrative Agent and applied by Administrative Agent credit support annex to any amounts due under the Loan Documents.
(6) In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain if applicable, make a demand to the relevant Hedge Counterparty and deliver its credit support provider, if applicable, for securities having a value under such credit support annex equal to Administrative Agent an opinion from counsel (which counsel may be in-house counsel for the Third-Party Counterparty) for the Third-Party Counterparty (in form reasonably satisfactory to Administrative Agent and upon which Administrative Agent, the Lenders and their respective successors and assigns may rely) which shall provide, in relevant part, that:
(a) the Third-Party Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the Third-Party Counterparty, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement, and any other agreement which the Third-Party Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any Governmental Authority or regulatory body is required for such execution, delivery or performance; andcredit support amount.
(d) Each Hedge Agreement will, at a minimum, (i) include requirements for collateralization by or replacement of the Third-Party Hedge Counterparty (including timing requirements) that satisfy Rating Agency criteria in effect at the time of execution of the Hedge Agreement and (ii) permit the Issuer to terminate such agreement (with the Hedge Counterparty bearing the costs of any replacement Hedge Agreement, and ) for failure to satisfy such requirement.
(e) The Issuer will give prompt notice to the Rating Agency of any other termination of a Hedge Agreement or agreement which to provide Hedge Counterparty Credit Support. Any collateral received from a Hedge Counterparty under a Hedge Agreement shall be deposited in the Third-Party Hedge Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Third-Party Counterparty and constitutes the legal, valid and binding obligation of the Third-Party Counterparty, enforceable against the Third-Party Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)Collateral Account.
Appears in 1 contract
Samples: Indenture (Ares Capital Corp)
