CLIFFORD CHANCE LLP
Exhibit
10.13
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XXXXXXXX
CHANCE LLP
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EXECUTION
VERSION
9 JANUARY
2009
AHR
CAPITAL MS LIMITED
XXXXXX
XXXXXXX MORTGAGE SERVICING LTD
XXXXXX
XXXXXXX BANK, X.X.
XXXXXX
XXXXXXX PRINCIPAL FUNDING INC
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AMENDMENT
AND RESTATEMENT DEED
IN
RELATION TO THE DECEMBER 2008 AMENDED AND RESTATED MULTICURRENCY
REVOLVING FACILITY AGREEMENT
DATED
AS OF 31 DECEMBER 2008
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Clause
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CONTENTS
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Page
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1.
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INTERPRETATION
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2
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2.
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AMENDMENT
AND RESTATEMENT OF THE DECEMBER 2008 AMENDED FACILITY
AGREEMENT
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3
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3.
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CONSENT
TO AMENDMENTS TO DOCUMENTS
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3
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4.
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REPRESENTATIONS
AND WARRANTIES
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3
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5.
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GOVERNING
LAW
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3
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6.
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JURISDICTION
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3
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7.
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COUNTERPARTS
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3
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8.
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CONTRACTS
(RIGHTS OF THIRD PARTIES) ACT 1999
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4
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ANNEX
1
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(THIRD
AMENDED AND RESTATED FACILITY AGREEMENT)
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5
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THIS DEED is made on 9 January
2009,
BETWEEN:
(1)
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AHR CAPITAL MS LIMITED
(the "Borrower");
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(2)
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XXXXXX XXXXXXX MORTGAGE
SERVICING LTD (the "Security
Trustee");
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(3)
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XXXXXX XXXXXXX BANK, N.A.
(the "Initial
Lender"); and
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(4)
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XXXXXX XXXXXXX PRINCIPAL
FUNDING INC (the "First New Lender" and
the "Agent")
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INTRODUCTION:
(A)
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The
Borrower, the Security Trustee, the Initial Lender and Xxxxxx Xxxxxxx
Bank, N.A. acting as agent for the Initial Lender (the "Original Agent" and,
together with the Borrower, the Security Trustee and the Initial Lender,
the "Original
Parties") entered into a multicurrency revolving facility agreement
dated 17 February 2006 (the "Original Facility
Agreement").
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(B)
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(C)
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(D)
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Pursuant
to clause 21 of the First Amended Facility Agreement the Initial Lender,
the First New Lender and the Original Agent entered into a Transfer
Certificate dated on or about 15 February 2008 (the "First Transfer
Certificate") whereby the rights and obligations of the Initial
Lender under the First Amended Facility Agreement were transferred to the
First New Lender.
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(E)
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Subsequent
to the execution of the First Transfer Certificate pursuant to clause
23.10 of the First Amended Facility Agreement the Original Agent resigned
as agent under the First Amended Facility Agreement and appointed in its
place Xxxxxx Xxxxxxx Principal Funding Inc (in such capacity the "Agent" and, together
with the Borrower, the Security Trustee and the First New Lender, the
"Parties").
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(F) | Pursuant to an amendment and restatement deed in relation to the Second Amended Facility Agreement dated 31 December 2008, the Parties amended and restated the Second Amended Facility Agreement (the "December 2008 Amended Facility Agreement"). |
(G)
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The
Parties now wish to amend and restate the December 2008 Amended Facility
Agreement in the manner set out
herein.
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THE PARTIES AGREE as
follows:
1.
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INTERPRETATION
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1.1
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The
headings in this Deed do not affect its
interpretation.
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1.2
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The
expressions defined in the December 2008 Amended Facility
Agreement, each as amended and restated pursuant to this Deed, shall,
unless otherwise defined herein, have the same meaning in this Deed and
the Introduction.
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-2-
2.
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AMENDMENT
AND RESTATEMENT OF THE DECEMBER 2008 AMENDED FACILITY
AGREEMENT
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The
parties hereto agree that, with effect from 31 December 2008, the December
2008 Amended Facility Agreement shall be amended and shall be in the form
as restated for all purposes as set out in Annex 1 to this Deed so that
the rights and obligations of the parties thereto shall from that date be
governed by and construed in accordance with the provisions of
the December 2008 Amended Facility Agreement (as amended and
restated, the "Third
Amended Facility
Agreement").
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3.
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CONSENT
TO AMENDMENTS TO DOCUMENTS
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This Deed
shall constitute the prior written consent from the Security Trustee to the
amendments to the December 2008 Amended Facility
Agreement.
4.
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REPRESENTATIONS
AND WARRANTIES
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Each of
the parties hereto makes the following representations and warranties with
respect to itself:
4.1
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Power and
Authority: It has the power to enter into and perform,
and has taken all necessary action to authorise the entry into,
performance and delivery of, this Deed and the transactions contemplated
thereby.
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4.2
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Legal Validity: This
Deed constitutes its legal, valid and binding
obligations.
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4.3
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Authorisations: In
the case of the Security Trustee and the Agent and the First New Lender,
all material authorisations, and in the case of the Borrower, all
authorisations required in connection with the entry into and validity of
and the transactions contemplated by this Deed have been obtained and
effected (as appropriate) and are in full force and
effect.
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5.
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GOVERNING
LAW
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This Deed
and all matters arising from or connected with it are governed by English
law.
6.
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JURISDICTION
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6.1
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The
courts of England have exclusive jurisdiction to settle any dispute
arising from or connected with this Deed (a "Dispute").
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6.2
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Each
party irrevocably waives any objection which it might at any time have to
the courts of England being nominated as the forum to hear and decide any
proceedings and to settle any Disputes and agrees not to claim that the
courts of England are not a convenient or appropriate
forum.
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7.
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COUNTERPARTS
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This Deed
may be executed in separate counterparts and by each party separately on a
separate counterpart, and each such counterpart, when so executed, shall be an
original. Such counterparts shall together constitute one and the
same instrument.
-3-
8.
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CONTRACTS
(RIGHTS OF THIRD PARTIES) ACT 1999
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A person
who is not a party to this Deed has no rights under the Contracts (Rights of
Third Parties) Act 1999 (the "Act") to enforce any term of
this Deed.
IN WITNESS the parties hereto
have executed this Amendment and Restatement Deed as a deed and intend to
deliver and do deliver this Deed on the day and year first herein before
written.
SIGNED, SEALED AND DELIVERED
by
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the
duly authorised attorney of
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)
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By:
/s/ Xxxxxxx Xxxx
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AHR
Capital MS Limited
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in
the presence of
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)
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Signature
of witness By:
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/s/
Xxxx Xxxxxxxx
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Name
of witness
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/s/
Xxxx Xxxxxxxx
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THE
INITIAL LENDER
XXXXXX
XXXXXXX BANK
By:
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/s/ Xxxxxxx
Xxxxx
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THE
AGENT AND THE FIRST NEW LENDER
XXXXXX
XXXXXXX PRINCIPAL FUNDING INC
By:
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/s/ Xxxxxxx
Xxxxx
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THE
SECURITY TRUSTEE
XXXXXX
XXXXXXX MORTGAGE SERVICING LTD.
By:
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/s/
Xxxxxxx Xxxxxx
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By:
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/s/
Xxxxxx Xxxxxx
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Name: Xxxxxxx
Xxxxxx
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Name: Xxxxxx
Xxxxxx
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Title: Director
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Title: Director
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-4-
ANNEX
1
(THIRD
AMENDED AND RESTATED FACILITY AGREEMENT)
-5-
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XXXXXXXX
CHANCE LLP
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$300,000,000
FACILITY
AGREEMENT
dated
as of 31 December 2008
for
AHR
CAPITAL MS LIMITED
as
the Borrower
arranged
by
XXXXXX
XXXXXXX MORTGAGE SERVICING LTD
acting
as the Security Trustee
and
XXXXXX
XXXXXXX BANK, N.A.
as
the Initial Lender
XXXXXX
XXXXXXX PRINCIPAL FUNDING INC
as
the First New Lender and Agent
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THIRD
AMENDED AND RESTATED MULTICURRENCY
FACILITY
AGREEMENT
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CLAUSE
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CONTENTS
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Page
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1.
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Definitions
And Interpretation
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1
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2.
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The
Facility
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22
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3.
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Purpose
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22
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4.
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Conditions
Of Loans
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23
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5.
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Procedure
For Loans
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23
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6.
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Optional
Currencies
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29
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7.
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Repayment
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31
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8.
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Repayment,
Pre-Payment And Cancellation
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31
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9.
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Interest
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35
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10.
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Changes
To The Calculation Of Interest
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35
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11.
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Fees
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37
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12.
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Tax
Gross Up And Indemnities
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38
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13.
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Increased
Costs
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42
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14.
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Other
Indemnities
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44
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15.
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Costs
And Expenses
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44
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16.
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Mitigation
By The Lenders
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46
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17.
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Representations
And Warranties
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47
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18.
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Information
Undertakings
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51
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19.
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General
Undertakings
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53
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20.
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Events
Of Default
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58
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21.
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Changes
To The Lenders
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63
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22.
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Changes
To The Obligors
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66
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23.
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Role
Of The Agent
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67
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24.
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Conduct
Of Business By The Finance Parties
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73
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25.
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Sharing
Among The Finance Parties
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73
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26.
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Payment
Mechanics
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76
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27.
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Set-Off
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78
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28.
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Notices
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79
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29.
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Calculations
And Certificates
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80
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30.
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Partial
Invalidity
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81
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31.
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Remedies
And Waivers
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81
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32.
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Amendments
And Waivers
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81
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33.
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Counterparts
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82
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34.
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Entire
Agreement
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85
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35.
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Governing
Law
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86
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36.
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Enforcement
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86
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SCHEDULE
1
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The
Parties
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88
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Part
I
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The
Obligers
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88
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Part
II
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The
Lenders
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89
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SCHEDULE
2
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Conditions
Precedent
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90
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Part
I
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Conditions
Precedent To First Loan Under This Agreement
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90
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Part
II
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Conditions
Precedent To All Loans
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92
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Part
III
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Additional
Requirements
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94
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Part
IV
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Conditions
Precedent To The Amendment And Restatement
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95
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Part
V
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Conditions
Precedent To The Second Amendment And Restatement
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97
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Part
VI
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Part
A Conditions
Precedent To The Third Amendment And Restatement
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99
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Part B Conditions Subsequent | 100 | ||||||
SCHEDULE
3
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Request
For Borrowing
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103
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SCHEDULE
4
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Mandatory
Cost Formulae
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105
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SCHEDULE
5
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Form
Of Transfer Certificate
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108
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SCHEDULE
6
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[Reserved]
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110
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SCHEDULE
7
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[Reserved]
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111
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SCHEDULE
8
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LMA
Form Of Confidentiality Undertaking
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112
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SCHEDULE
9
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[Reserved]
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118
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SCHEDULE
10
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Pricing
Matrix
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119
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SCHEDULE
11
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Representations
And Warranties Re: Eligible Collateral
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121
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SCHEDULE
12
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Form
Of Custodial Agreement
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133
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SCHEDULE
13
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Form
Of Opinions Counsel To Borrower
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134
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SCHEDULE
14
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[Reserved]
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135
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SCHEDULE
15
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[Reserved]
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136
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SCHEDULE
16
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Servicer
Notice
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137
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THIS THIRD AMENDED AND RESTATED
AGREEMENT is dated as of 31 December 2008 and is made
between:
(1)
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AHR CAPITAL MS LIMITED
(the "Borrower");
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(2)
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XXXXXX XXXXXXX MORTGAGE
SERVICING LTD (the "Security
Trustee");
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(3)
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XXXXXX XXXXXXX BANK,
N.A. (the "Initial Lender");
and
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(4)
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XXXXXX XXXXXXX PRINCIPAL
FUNDING INC (the "First New Lender" and the "Agent")
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IT IS AGREED as
follows:
SECTION
1
INTERPRETATION
1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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In this
Agreement:
"Account Bank" shall mean Bank
of America, National Association, (as successor by merger to LaSalle Bank
National Association).
"Additional Cost Rate" has the
meaning given to it in Schedule 4 (Mandatory Cost
formulae).
"Advance Rate" shall mean, for
each item of Collateral, the advance rate set forth in the Request for Borrowing
which shall be consistent with the Pricing Matrix, as set forth in Schedule 10
(Pricing
Matrix).
"Affiliate" shall mean, in
relation to any person, a Subsidiary of that person or a Holding Company of that
person or any other Subsidiary of that Holding Company and, with respect to the
Borrower, any person managed by the Borrower.
"AHR Capital Limited" shall
mean a private limited company incorporated in Ireland with registration number
398357, whose registered office is at 0 Xxxxx Xxxxxx, XXXX, Xxxxxx 0,
Xxxxxxx.
"Xxxxxx Xxxxx 1 B.V." shall
mean a private company with limited liability (besloten vennootschap met
beperkte aansprakelijkheid) under the laws of The Netherlands, with its
registered office in Amsterdam, The Netherlands and its principal place of
business at Xxxxxxxxxxxxxx 0000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, xxxxxxxxxx
xx Xxx Xxxxxxxxxxx with the Trade Registered under number 34219418, and the
borrower under the Charlotte Credit Facility.
"Anthracite Notes" shall mean the Class E
Deferrable Interest Floating Rate Notes due 2042 and the Class F Subordinated
Notes due 2042 issued by Anthracite Euro CRE CDO 2006-1 p.l.c. and owned by the
Borrower.
-1-
"the Agent's Spot Rate of
Exchange" shall mean the Agent's spot rate of exchange for the purchase
of the relevant currency with the Base Currency in the London foreign exchange
market at or about 11:00 a.m. London time on a particular day.
"Applicable Margin" shall mean
3.50%.
"Appraisal" shall mean a
valuation of any Property prepared by a valuer reasonably acceptable to the
Agent.
"Asset-Specific Loan Balance"
shall mean the portion of any Loan allocable to each item of Eligible Collateral
(converted into the Base Currency using the Agent's Spot Rate of Exchange as at
the day which was one (1) Business Day prior to the relevant Funding Date of
such Loan). Such portion shall initially consist of the sum of the Loans made on
account of such Eligible Collateral, advance costs and fees to the extent
properly incurred by the Lenders and the Agent and the Security Trustee
hereunder and borrowed by the Borrower hereunder. Whenever this
Agreement states that principal payments on account of a Loan are to be
allocated or applied to or against the Asset-Specific Loan Balance of a specific
item of Eligible Collateral, the Asset-Specific Loan Balance of such item of
Eligible Collateral shall be deemed reduced accordingly by the amount of the
principal payments so applied (converted into the Base Currency using the
Agent's Spot Rate of Exchange as at the day which was one (1) Business Day prior
to the day on which such principal payments on account of such Loan are actually
so allocated and applied).
"Asset Value" shall mean, as of any
date in respect of any item of Eligible Collateral, the price (if not expressed
in the Base Currency, converted into the Base Currency using the Agent's Spot
Rate of Exchange on the day such calculation is made) at which such item of
Eligible Collateral could readily be sold, after giving effect to the value of
any Interest Rate Protection Agreements with respect to such item of Eligible
Collateral which are to be secured in favour of the Security Trustee as
Collateral, as determined in good faith discretion by the Agent, which price may
be determined to be zero and in no event shall exceed the then outstanding par
value (where applicable) of the subject Eligible Collateral which consists of a
Collateral Loan. The Agent’s determination of Asset Value, which may
be made at any time and from time to time, shall be conclusive, absent manifest
error, upon the parties to this Agreement; provided that, without
limiting the effect of Clause 8.3 (Mandatory Pre-Payment or granting of
further security to the Security Trustee), the Asset Value shall be
deemed to be:
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(1)
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zero
or such greater amount as determined in sole but good faith discretion by
the Agent in respect of each item of Eligible Collateral in respect of
which there is a breach of a representation or warranty by a Collateral
Obligor;
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(2)
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zero
or such greater amount as determined in good faith, by, but at the sole
discretion of the Agent in respect of each item of Eligible Collateral in
respect of which there is a delinquency in the payment of principal and/or
interest which continues for a period in excess of thirty (30) days (after
taking into account any applicable grace
periods);
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(3)
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zero
or such greater amount as determined in good faith, by, but at the sole
discretion of, the Agent, in respect of each item of Collateral which has
been released from the possession of the Custodian under the Custodial
Agreement to the Borrower for a
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-2-
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period
in excess of fourteen (14) days unless the Agent and Custodian have
approved such release for a longer period of time;
and
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(4)
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zero
or such greater amount as determined in good faith, but at the sole
discretion of, the Agent following the failure of Borrower to deliver the
Collateral File associated with such item of Eligible Collateral to the
Custodian within five (5) Business Days after the Funding Date associated
with the Loan made in respect of such item of Eligible
Collateral.
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Notwithstanding
anything to the contrary contained in this definition, whenever an Asset Value
determination is required under this Agreement:
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(a)
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the
Borrower shall cooperate with the Agent in its good faith determination of
the Asset Value of each item of Eligible Collateral (including, without
limitation, providing all information and documentation in the possession
of the Borrower or otherwise within the control of the Borrower regarding
such item of Eligible Collateral);
and
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(b)
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the
Agent shall be entitled to consider any and all factors relevant to the
determination of Asset Value including, without limitation, general and
specific changes in the capital markets and the real estate markets, and
other factors affecting any item of Eligible Collateral, the Borrower, any
Collateral Obligor or the transactions contemplated
hereunder. Each communication by the Agent to the Borrower of
an Asset Value determination pertaining to one or more items of Eligible
Collateral shall be subject to the disclaimer provisions set forth in
Clause 33.3 (Disclaimers).
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"Authorisation" shall mean an
authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
"Availability Period" shall
mean the period from and including the Effective Date to and including the
Business Day immediately preceding the date hereof.
"Available Credit" shall mean,
with respect to any Lender, such Xxxxxx's Maximum Credit minus:
(a)
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the Base Currency Amount
of its participation in any outstanding Loans;
and
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(b)
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in
relation to any Loans that are proposed to be made, the Base Currency
Amount of its proportional participation in any Loans that are due to be
made on or before the proposed Funding
Date,
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other
than such Xxxxxx's participation in any Loans that are due to be repaid or
prepaid on or before the proposed Funding Date.
"Bank
Agreement"shall mean the Collection Account Security and Control
Agreement between, inter
alios, the Borrower and the Security Trustee dated 17 February 2006 as
amended pursuant to that certain Amended and Restated Collection Account
Security and Control Agreement between, inter
alios, the Borrower and the Security Trustee dated as of 9 January
2009.
"B Notes" shall mean the original
executed subordinated note or other evidence of a subordinated interest with
respect to a Mortgage Loan or a Mezzanine Loan (to which the applicable
representations and warranties in Clause 17.13 (Collateral; Collateral
Security) hereof are correct).
-3-
"Bank Agreement" shall mean the
collection account security and control agreement, between, inter alios, the Borrower and
the Security Trustee dated 17 February 2006 as amended pursuant to that certain
Amended and Restated Collection Account Security and Control Agreement between,
inter alios, the Borrower and the
Security Trustee dated as of 9 January 2009.
"Base Currency" shall mean
dollars.
"Base Currency Amount" shall
mean, in relation to a Loan, the amount specified in the Request for Borrowing
for that Loan (or, if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Agent's Spot Rate
of Exchange on the date which is one (1) Business Day before the Funding Date)
adjusted to reflect any repayment, pre-payment, consolidation or division of the
Loans.
"Borrower Bank Accounts" or
"Accounts" means the Borrower
Sterling Account, the Borrower Yen Account and the Borrower Euro Account or any
one or more of them as the context may require (and any renewal or redesignation
of such accounts) maintained with the Account Bank, the Irish Bank Accounts and
any other bank accounts as the Borrower may open and maintain from time to time
in accordance with the Bank Agreement and notified to the Agent and the
Lenders.
"Borrower Euro Account" means
the euro denominated Borrower Bank Account maintained by the Account Bank with
account number 723414.3, account name AHR Capital MS Limited Euro Account (and
any redesignation of such account).
"Borrower Irish Tax
Requirements" shall mean the following:
(a)
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the
Borrower is and shall continue to be resident in the Republic of Ireland
for the purposes of the Irish Taxes
Act;
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(b)
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the
Borrower carries on and shall continue to carry on in the Republic of
Ireland the business of holding, managing or both the holding and managing
of the Eligible Collateral or interests in the Eligible
Collateral;
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(c)
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apart
from activities ancillary to the business of managing or holding the
Eligible Collateral or interests in the Eligible Collateral, the Borrower
carries on and shall continue to carry on no other
activities;
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(d)
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the
market value of the Eligible Collateral or interests in the Eligible
Collateral held or managed by the Borrower was not less than EUR
10,000,000 on the day on which the Eligible Collateral or interests in the
Eligible Collateral were first held by
it;
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(e)
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all
of the transactions entered into or that will be entered into by the
Borrower have been or will be entered into, as the case may be, on an
arm’s length basis, apart from any transaction or arrangement where
Section 110(4) of the Irish Taxes Act applies to any interest or other
distribution payable under the transaction or arrangement unless the
transaction or arrangement concerned is excluded from that provision by
virtue of Section 110(5) of the Irish Taxes
Act;
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(f)
|
the
Borrower has notified the Irish Revenue Commissioners in the prescribed
form that it is or intends to be a qualifying company for the purposes of
Section 110(1) of
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-4-
the Irish
Taxes Act and has supplied to the Irish Revenue Commissioners such other
particulars relating to it as may be specified in the prescribed
form;
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(g)
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the
proceeds of all monies or funding received by the Borrower have been, or
as applicable, shall be used by the Borrower in the course of its business
as a qualifying company within the meaning of Section 110 of the Irish
Taxes Act;
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(h)
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excluding
costs of incorporation of the Borrower, any material expenses (being
expenses in the aggregate exceeding $50,000 per annum) incurred or to be
incurred by the Borrower including interest payable by the Borrower shall
be deductible in computing its profits for the purposes of the Irish Taxes
Act; and
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(i)
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any
transaction entered into by the Borrower is not or will not be entered
into by such Borrower for tax avoidance
reasons.
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"Borrower Sterling Account"
means the sterling denominated Borrower Bank Account maintained by the Account
Bank with account number 723414.2 account name AHR Capital MS Limited
Sterling Account (and any redesignation of such account).
"Borrower USD
Account" means the USD denominated Borrower Bank Account maintained
by the Account Bank with account number 723414.1, account name AHR Capital MS
Limited USD Account (and any redesignation of such account).
"Borrower Yen
Account" means the Yen
denominated Borrower Bank Account maintained by the Account Bank with account
number 723414.6, account name AHR Capital MS Limited Yen Account (and any
redesignation of such account.)
"Borrowing Base" shall mean the
aggregate Collateral Value of the Collateral utilised pursuant to the Debenture
to secure the amounts from time to time outstanding under the Finance Documents,
including, but not limited to, the Loans.
"Borrowing Base Deficiency"
shall have the meaning provided in paragraph (a) of Clause 8.3(a) (Mandatory Pre-Payment or granting of
further security to the Security Trustee) hereof.
"Business Day" shall mean, a
day (other than a Saturday or Sunday) on which banks are open for general
business in:
|
(a)
|
London,
or in relation to any date for payment or purchase of a currency other
than sterling or euro the principal financial centre of the country of
that currency;
|
|
(b)
|
in
relation to any date for payment or purchase of euro, any TARGET Day;
or
|
|
(c)
|
in
relation to any notice to be given to a party pursuant to this Agreement
(including a Request for Borrowing) the city in which such party's office
for service is located.
|
"Capital Lease Obligations"
shall mean, for any person, all obligations of such person to pay rent or other
amounts under a lease of (or other agreement conveying the right to use)
Property to the extent such obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such person under GAAP,
and, for purposes of this Agreement, the amount of such obligations shall be the
capitalised amount hereof, determined in accordance with GAAP.
-5-
"Charlotte Asset" shall mean,
all of the Borrower's right, title and interest in, and relating to the
Charlotte Credit Facility and the intercreditor, subordination and other
ancillary agreements thereto including the Omnibus Agreement.
"Charlotte Credit Facility"
shall mean the loan facility made available to Xxxxxx Xxxxx 1 B.V. pursuant to
the facility agreement dated 20 December 2007 (as amended and restated from time
to time) between, inter
alios, Xxxxxx Xxxxx 1 B.V and the Royal Bank of Scotland plc, Frankfurt
branch.
"CMBS" shall mean, in the
singular or plural as the context requires, debt securities backed by mortgages
or other comparable security over commercial real estate or by securities,
interests or other obligations backed directly or indirectly by such mortgages
or other comparable security with the assigned Rating by the corresponding
Rating Agency as set forth in Schedule 10 (Pricing Matrix).
"Collateral" shall mean, all of
the Borrower's right, title and interest in, to and under each of the following
items of Property, whether now owned or hereafter acquired, now existing or
hereafter created and wherever located:
|
(a)
|
All
Eligible Collateral with respect to which a Loan is made
hereunder;
|
|
(b)
|
All
Collateral Documents with respect to which a Loan is made hereunder and as
to which the Custodian has been instructed to hold for the Security
Trustee pursuant to the Custodial
Agreement;
|
|
(c)
|
All
guarantees and insurance (issued by any Governmental Authority or
otherwise) and any insurance certificate or other document evidencing such
guarantees or insurance relating to any Collateral and all claims and
payments thereunder;
|
|
(d)
|
All
Interest Rate Protection
Agreements;
|
|
(e)
|
All
other insurance policies and insurance proceeds relating to the Collateral
or related Property;
|
|
(f)
|
All
collateral or security however defined, under any other agreement between
any Obligor and the Lender and/or or any of their respective Affiliates;
and
|
|
(g)
|
Any
and all replacements, substitutions, distributions on or proceeds of any
and all of the foregoing.
|
"Collateral Documents" shall
mean the documents comprising the Collateral File for each item of Eligible
Collateral.
"Collateral File" shall mean,
as to each item of Collateral, those documents set forth in a schedule to be
delivered by the Borrower or the Agent to the Custodian and which are delivered
to the Custodian pursuant to the terms of this Agreement or the Custodial
Agreement including, without limitation, all documents required by the Agent to
better enable the Borrower to grant in favour of the Security Trustee and to
perfect a first priority security interest in such item of
Collateral.
-6-
"Collateral Loan" shall mean,
any Eligible Collateral consisting of a loan or an interest in a
loan.
"Collateral Obligor" shall
mean, any obligor with respect to any Eligible Collateral, any issuer of any
debt security comprising any portion of the Collateral and the issuer of any
Preferred Equity Interest.
"Collateral Schedule" shall
mean a list of the Eligible Collateral to be granted by way of security to the
Security Trustee for the Secured Obligations under the Finance Documents
attached to a Custodial Identification Certificate setting forth, as to each
item of Eligible Collateral, the applicable information for such Collateral type
specified in the Custodial Agreement.
"Collateral Schedule and Exception
Report" shall mean any collateral schedule and exception report prepared
by the Custodian pursuant to the Custodial Agreement.
"Collateral Value" shall mean
on any day, with respect to each item of Collateral, the product obtained by
multiplying the Asset Value of such item of Collateral (converted into the Base
Currency calculated by the Agent determining the Base Currency equivalent of
such Asset Value by converting such Asset Value into the Base Currency using the
Agent's Spot Rate of Exchange on such day) by the Advance Rate set forth in the
Request for Borrowing associated therewith.
"Commitment Fee" shall have the
meaning provided in Clause 11 (Fees) hereof.
"Conditions Subsequent" shall
mean the documents and evidence listed in Part B of Part VI of Schedule 2 (Conditions Precedent) and
each a "Condition
Subsequent".
"Corporate Services Agreement"
shall mean the Management Agreement dated 27 January 2006 between the Borrower
and Citco Corporate Services (Ireland) Limited.
"Custodian" shall mean, LaSalle
Bank National Association, as Custodian under the Custodial Agreement, and its
successors and permitted assigns thereunder.
"Custodial Agreement" shall
mean the Custodial Agreement, dated as of 17 February 2006, between the
Borrower, the Custodian and the Agent, substantially in the form of Schedule 12
(Form of Custodial
Agreement) hereto, as the same shall be modified and supplemented and in
effect from time to time.
"Custodial Identification
Certificate" shall mean, the certificate executed by the Borrower in
connection with the pledge of Eligible Collateral to the Security Trustee in the
form of Schedule 3 to the Custodial Agreement.
"Cut Off Date" means 9 January
2009.
"Debenture" shall mean the
Debenture dated 17 February 2006 entered into by, inter alios, the Borrower in
favour of the Security Trustee.
-7-
"Default" shall mean an Event
of Default or any event or circumstance which would (with the expiry of a grace
period, the giving of notice, or any combination of any of the foregoing) be an
Event of Default.
"Diligence Materials" shall
mean the Preliminary Due Diligence Package together with the materials requested
in the Supplemental Due Diligence List.
"dollars" or "$" shall mean the lawful
currency of the United States of America.
"Due Diligence Review" shall
have the meaning set forth in Clause 33.2 (Periodic Due Diligence
Review).
"Effective Date" shall mean,
February 17, 2006.
"Eligible Collateral" shall mean
collectively: Mortgage Loans, Mezzanine Loans, B Notes, Preferred Equity
Interests, CMBS, the Anthracite Notes and Other Approved Collateral to which the
applicable section of Schedule 11 (Representations and Warranties Re:
Eligible Collateral) hereof is correct.
"Eligible Collateral Asset"
shall mean any particular item of Eligible Collateral.
"Encumbered Property" shall
mean the real property (including all improvements, buildings, fixtures,
building equipment and personal property thereon and all additions, alterations
and replacements made at any time with respect to the foregoing) and all other
collateral securing repayment of the debt comprised in a Mortgage Loan, or, in
the case of any Mezzanine Loan, the Equity Interests and the real property
related thereto.
"Equity Interest" shall mean
any interest in a person constituting a share of stock or a partner or
membership interest or other right or interest in a person not characterised as
indebtedness under GAAP (including, without limitation, a Preferred Equity
Interest).
"Equity Proceeds" shall mean
with respect to the Guarantor, an amount equal to the net proceeds from the
issuance of any securities of the Guarantor or the net proceeds due to the
Guarantor from contributions to capital or otherwise by another
person.
"EURIBOR" means in relation to
any Loan in euro:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for the Interest Period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal places) as
supplied to the Agent at its request quoted by the Reference Banks to
leading banks in the European interbank
market;
|
as of the
Specified Time on the Quotation Day for the offering of deposits in euro for a
period comparable to the Interest Period of the relevant Loan.
"euro" or "EUR" shall mean the single
currency unit of the Participating Member States.
"EU Insolvency Regulation"
means Council Regulation (EC) No. 1346/2000 of 20 May 2000.
-8-
"Event of Default" shall mean
any event or circumstance specified as such in Clause 20 (Events of
Default).
"Examiner" has the meaning
given to it in Section 2 of the Companies (Amendment) Act, 1990 of the Republic
of Ireland and "Examinership" shall be
construed accordingly.
"Exit Fee" shall have the
meaning ascribed to it in Clause 11.2 (Exit Fee).
"Exit Fee Related Collateral"
shall have the meaning ascribed to it in Clause 11.2 (Exit Fee).
"Facility" shall mean the loan
facility made available under this Agreement as described in Clause 2
(The
Facility).
"Facility Office" shall mean
the office or offices notified by a Lender to the Agent in writing on or before
the date it becomes a Lender (or, following that date, by not less than five (5)
Business Days' written notice) as the office or offices through which it will
perform its obligations under this Agreement.
"Finance Documents" shall mean
this Agreement, the Debenture, the Guarantee, the Custodial Agreement, the Bank
Agreement, each Interest Rate Protection Agreement, the Pledge and Security
Agreement, the Securities Account Control Agreement and any other document
designated as such by the Agent and the Borrower.
"Finance Party" shall mean the
Agent, the Security Trustee and each Lender as the case may be and the context
requires.
"Funding Costs" shall mean,
collectively, the actual costs to a Lender of breaking an interbank contract for
LIBOR, or if applicable, EURIBOR (or the costs that would have been incurred if
such a Lender had entered into a broken interbank contract prior to the
expiration of the contract period applicable thereto in connection with (a) a
pre-payment (whether voluntary or involuntary) of all or any portion of an
Asset-Specific Loan Balance or other principal repayment required or permitted
under the Finance Documents that is made at any time other than at the
expiration of an Interest Period, (b) any voluntary or involuntary acceleration
of the Termination Date that in effect occurs on any date that is not the last
day of an Interest Period with respect to any Asset-Specific Loan Balance, and
(c) any other set of circumstances not attributable solely to a Lender's acts,
or related to an amendment of this Agreement by the parties
hereto. Subject to the foregoing, Funding Costs shall not include a
diminution in yield suffered by a Lender upon re-lending or re-investing the
principal of a Loan after any pre-payment of such Loan.
"Funding Date" shall mean the
date on which a Loan is made hereunder.
"GAAP" shall mean
|
(a)
|
in
respect of the Borrower, generally accepted accounting principles in
effect from time to time in the Republic of Ireland;
and
|
|
(b)
|
in
respect of the Guarantor, generally accepted accounting principles in
effect from time to time in the United States of
America.
|
-9-
"Governmental Authority" shall
mean, any nation or government, any state or other political subdivision
thereof, any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and any court or
arbitrator having jurisdiction over the Borrower, the Guarantor or any of their
respective Subsidiaries or any of their respective properties.
"Guarantee" shall mean the
Amended and Restated Parent Guaranty 31 December 2008.
"the Guarantor" shall mean
Anthracite Capital, Inc., a Maryland corporation.
"Holding Company" means, in
relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
"Indebtedness" shall mean any
indebtedness for or in respect of:
|
(a)
|
moneys
borrowed;
|
|
(b)
|
any
amount raised by acceptance under any acceptance credit facility or
dematerialised equivalent;
|
|
(c)
|
any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar
instrument;
|
|
(d)
|
the
amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with GAAP, be treated as a finance or capital
lease;
|
|
(e)
|
receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis);
|
|
(f)
|
any
amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a
borrowing;
|
|
(g)
|
any
derivative transaction entered into in connection with protection against
or benefit from fluctuation in any rate or price (and, when calculating
the value of any derivative transaction, only the marked to market value
shall be taken into account);
|
|
(h)
|
any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by
a bank or financial institution;
|
|
(i)
|
any
Capital Lease Obligations;
|
|
(j)
|
any
amount of any liability under an advance or deferred purchase agreement if
one of the primary reasons behind the entry into this agreement is to
raise finance;
|
|
(k)
|
(without
double counting) the amount of any liability in respect of any guarantee
or indemnity for any of the items referred to in paragraphs (a) to (k)
above; and
|
|
(l)
|
any
other indebtedness of the Borrower whether financial or
otherwise.
|
-10-
"Information Memorandum" shall
mean, the document in the form approved by the Borrower concerning the Borrower
which, at its request and on its behalf, is to be prepared in relation to this
transaction and distributed prior to the Syndication Date in connection with
syndication.
"Institutional Investor" shall
mean a bank, insurance company, pension fund, real estate investment trust,
registered investment advisor or other institutional investor or a corporation
whose shares are publicly traded on the New York Stock Exchange or the American
Stock Exchange, the London Stock Exchange, the Irish Stock Exchange or a similar
internationally recognised stock exchange of another nation or any Affiliate of
the foregoing, in each case, having not less than $500,000,000 in assets and
$250,000,000 in equity, and having a long term unsecured debt rating of "A" by
S&P or the equivalent by Moody’s.
"Institutional Owner" shall
mean an insurance company, bank, savings and loan association, REIT, Real Estate
Mortgage Investment Conduit, grantor trust, trust company, commercial credit
corporation, pension plan, pension fund or pension fund advisory firm, mutual
fund or other investment company, governmental entity or plan, "qualified
institutional buyer", within the meaning of Rule 144A under the Securities Act
(U.S.) of 1993, as amended (other than a broker/dealer) or an institution
substantially similar to any of the foregoing, or any entity wholly owned by any
one or more such institutions, in each case, having not less than $500,000,000
in assets and $250,000,000 in equity, and having a long term unsecured debt
rating of "A" by S&P or the equivalent by Moody’s.
"Interest Payment Date" shall
mean the first Business Day of each month and for the last month of this
Agreement, the first Business Day of such last month and the Termination
Date.
"Interest Period" for any Loan
shall mean (i) the period commencing on the Funding Date and ending on the day
immediately preceding the next succeeding Interest Payment Date, and thereafter
(ii) the period commencing on each Interest Payment Date and ending on the date
immediately preceding the next succeeding Interest Payment Date.
"Interest Rate Protection
Agreement" shall mean, any, futures contract, options related contract,
interest rate swap, cap or collar agreement or similar arrangement providing for
protection against fluctuations in interest rates or the exchange of nominal
interest obligations, either generally or under specific
contingencies.
"Investment Management
Agreement" shall mean the Investment Management Agreement dated 27
January 2006 between the Borrower and BlackRock Financial Management,
Inc.
"Irish Bank Accounts" means,
collectively, the current account (account No. 00000000) and the deposit account
(account No. 00000000) in the name of the Borrower with the Governor and Company
of the Bank of Ireland.
"Irish Taxes Act" has the
meaning given to it in Clause 12.1 (Definitions).
"the Lender" shall
mean:
|
(a)
|
Xxxxxx
Xxxxxxx Bank, N.A., a Utah
Corporation;
|
-11-
|
(b)
|
Xxxxxx
Xxxxxxx Principal Funding Inc., a Delaware Corporation;
and
|
|
(c)
|
any
bank, financial institution, trust, fund or other entity which has become
a Party in accordance with Clause 21 (Changes to the
Lenders),
|
which in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"Lenders' Net Aggregate
Exposure" shall mean on any day, with respect to all Loans, a
fraction:
|
(a)
|
the
numerator of which shall be the sum of (i) the aggregate amounts of the
Loans plus (ii) the aggregate amount of any and all senior Indebtedness
and senior Preferred Equity Interest(s) secured in whole or in part by
real property or direct or indirect beneficial interests therein relating
to all Eligible Collateral securing such Loans;
and
|
|
(b)
|
the
denominator of which shall be the fair market value (in the Base Currency
and if not expressed in the Base Currency, converted into the Base
Currency using the Agent's Spot Rate of Exchange on the day such
calculation is made) of the real property or direct or indirect beneficial
interests referred to in (a) above as determined by the Agent in its sole
good faith discretion.
|
"Lenders' Net Exposure" shall
mean, with respect to each Loan, a fraction:
|
(a)
|
the
numerator of which shall be sum of (i) the Base Currency Amount of such
Loan plus (ii) the amount of any and all Indebtedness and senior Preferred
Equity Interest(s) (in each case converted into the Base Currency using
the Agent's Spot Rate of Exchange on such day) secured in whole or in part
by real property or direct or indirect beneficial interests therein
relating to the Eligible Collateral granted as security to the Security
Trustee in connection with such Loan;
and
|
|
(b)
|
the
denominator of which shall be the fair market value (in the Base Currency
and if not expressed in the Base Currency, converted into the Base
Currency using the Agent's Spot Rate of Exchange on the day such
calculation is made) of the real property or direct or indirect beneficial
interests referenced in (a) above as determined by the Agent in its sole
good faith discretion.
|
"LIBOR" shall mean, in relation
to any Loan:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for the currency or Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the Reference
Banks to leading banks in the London interbank
market,
|
on or
about 11:00 a.m. London time on the Quotation Day for the offering of deposits
in the currency of that Loan and for a period of thirty (30) days.
"LMA" shall mean the Loan
Market Association.
-12-
"Loan" shall mean a loan made
or to be made under the Facility or the principal amount outstanding for the
time being of that loan.
"Loan-To-Value Ratio" or "LTV" shall mean, as of any
date in respect to any item of Eligible Collateral, the ratio that (x) the
aggregate outstanding principal balances of all loans and preferred equity
interests secured in whole or in part by real property or direct or indirect
beneficial interests therein relating to such Eligible Collateral bears to (y)
the value, determined by an Appraisal in a form reasonably acceptable to the
Agent, of the real property (together with all applicable appurtenant interests
and subject to all applicable security interests, encumbrances and tenancies),
or direct or indirect beneficial interests which form the basis of such Eligible
Collateral.
"Majority Lenders" shall
mean:
|
(a)
|
if
there are no Loans then outstanding, a Lender or Lenders whose Total
Maximum Credit aggregate more than 662/3%
of the Total Maximum Credit (or, if the Total Maximum Credit have been
reduced to zero, aggregated more than 662/3%
of the Total Maximum Credit immediately prior to the reduction);
or
|
|
(b)
|
at
any other time, a Lender or Lenders whose participations in the Loans then
outstanding aggregate more than 662/3%
of all the Loans then outstanding.
|
"Mandatory Cost" shall mean the
percentage rate per annum calculated by the Agent in accordance with Schedule 4
(Mandatory Cost
Formulae).
"Material Adverse Effect" shall
mean a material adverse effect on:
|
(a)
|
the
business, operations, Property, condition (financial or otherwise) or
prospects of the Borrower or the
Guarantor;
|
|
(b)
|
the
ability of an Obligor to perform its obligations under any of the Finance
Documents;
|
|
(c)
|
the
validity or enforceability of any of the Finance Documents or the rights
or remedies of any Finance Party under any of the Finance
Documents;
|
|
(d)
|
the
timely payment of principal or of interest on a Loan or other amounts
payable in connection therewith; or
|
|
(e)
|
the
Collateral.
|
"Maximum Credit" shall mean in
relation to any Lender, the amount in the Base Currency set opposite its name
under the heading "Maximum
Credit" in Part II of Schedule 1 (The Parties) and the amount
in the Base Currency of any other Maximum Credit transferred to it under this
Agreement as the same may be reduced in accordance with this Agreement to the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Mezzanine Loan" shall mean
indebtedness of an owner or owners of any Equity Interest or any other equity or
ownership interests in property secured only by such Equity Interest or other
equity or ownership interest, each encumbering one or more commercial (including
retail
-13-
office,
industrial, self-storage, hospitality or other commercial uses) or multi-family
residential properties to which the applicable representations and warranties in
Clause 17.13 (Collateral;
Collateral Security) hereof are correct.
"Moody's" shall mean Xxxxx'x
Investors Service Inc. or any successor to its rating business.
"Mortgage" shall mean the
mortgage, charge or other instrument securing a Mortgage Loan, which creates a
first ranking security interest on real property.
"Mortgage Loan" shall mean a performing
mortgage loan encumbering one or more commercial (including retail, office,
industrial, self storage, hospitality or other commercial uses) or multi-family
residential properties to which the applicable representations and warranties in
Clause 17.13 (Collateral;
Collateral Security) hereof are correct.
"MS & Co." shall mean
Xxxxxx Xxxxxxx & Co. Incorporated, a registered broker-dealer.
"MS Indebtedness" means any
Indebtedness of any Obligor owed to the First New Lender or any of its
respective Affiliates.
"Net Worth" shall mean the
amount which would be included under shareholders equity on a consolidated
balance sheet of the Borrower and the Guarantor and its subsidiaries determined
on a consolidated basis in accordance with GAAP.
"Obligors" shall mean the
Borrower and the Guarantor and "Obligor" shall mean either one
of them as the context may require.
"Omnibus Agreement" shall mean
the agreement dated on or before the Cut Off Date between the Borrower, AHR
Capital Limited, RECP IV CMBS International Sarl, RECP Anthracite International
JV Limited and the Guarantor.
"Optional Currency" shall mean
sterling, Yen or euros or any other currency mutually agreed to by the Borrower
and the Agent.
"Other Approved Collateral"
shall mean such other proposed Property of the Borrower as the Agent shall
accept as Collateral for a Loan.
"Participating Member State"
shall mean any member state of the European Communities that adopts or has
adopted the euro as its lawful currency in accordance with legislation of the
European Community relating to Economic and Monetary Union.
"Party" shall mean a party to
this Agreement.
"Pledge
and Security Agreement" shall mean the Pledge and Security Agreement
dated 31 December 2008 made by the Borrower in favour of Xxxxxx Xxxxxxx Mortgage
Servicing Limited as Security Trustee.
"Post Default Rate of Interest"
shall have the meaning ascribed to it in Clause 9.3 (Default
Interest).
"Preferred Equity Interest" shall mean any
interest in a person constituting preference shares or a preferred partnership
or membership interest or other preferred right or interest in a person that is
not characterised as indebtedness under GAAP.
-14-
"Preliminary Due Diligence
Package" shall mean, with respect to any item of Eligible Collateral, the
following due diligence information relating to such item of Eligible Collateral
to be provided by the Borrower to the Agent pursuant to this
Agreement:
(a)
|
a
summary memorandum outlining the proposed transaction, including potential
transaction benefits and all material underwriting risks, all Underwriting
Issues and all other characteristics of the proposed transaction that a
prudent lender would consider
material;
|
|
(b)
|
a
cash flow pro-forma, plus historical
information, if available;
|
|
(c)
|
a
description of the Property comprised in such Eligible Collateral (whether
real property, a loan or other
collateral);
|
|
(d)
|
the
indicative relevant Loan-To-Value
Ratio;
|
|
(e)
|
the
Borrower’s or the Guarantor's or any Affiliate thereof's relationship with
its Collateral Obligor or any Affiliate of such Collateral Obligor, if
any;
|
|
(f)
|
a
Phase I environmental report (including asbestos and lead paint
report);
|
|
(g)
|
third
party reports, to the extent available and applicable,
including:
|
|
(i)
|
current
Appraisal;
|
|
(ii)
|
Phase
II environmental report or other follow-up environmental report if such
was recommended in the relevant Phase I environmental
report;
|
|
(iii)
|
seismic
reports; and
|
|
(iv)
|
an
operations and maintenance plan with respect to asbestos containing
materials;
|
|
(h)
|
documents
comprising such Eligible Collateral, or current drafts thereof, including,
without limitation, the underlying debt and the related finance documents
(including any guarantees), the Collateral Obligor’s organisational, or
constitutional, documents, warrant agreements, and loan and collateral
security agreements, as applicable;
|
|
(i)
|
a
list that specifically and expressly identifies any Collateral Documents
that relate to such Eligible Collateral but which are not in the
Borrower’s possession; and
|
|
(j)
|
in
the case of Eligible Collateral which is other than an actual Mortgage
Loan, all information and other materials described in this definition
which would otherwise be provided for the underlying mortgage loan if it
were an item of Eligible Collateral, except that, as to the items set
forth in paragraphs (g) and (h), to the extent the Borrower possesses such
information or has access to such information because it was provided to
the related lead lender and made available to the
Borrower.
|
"Principal Receipts" means in
relation to any Eligible Collateral purchased or otherwise acquired by the
Borrower, any monies arising from such Eligible Collateral and received
by
-15-
the
Borrower which are of a principal nature or are on account of principal, or are
on account of a return of capital in relation to a Preferred Equity
Interest.
"Property" shall mean, any
right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible.
"Proposed Eligible Collateral"
means any item of Collateral that the Borrower proposes should be the subject of
a Loan prior to the approval by the Agent as Eligible Collateral.
"Qualifying Lender" has the
meaning given to it in Clause 12.1 (Definitions).
"Quotation Day" means in
relation to any period for which an interest rate is to be determined the day
that is one (1) day prior to the first day of that period.
"Rating" shall mean the rating
(or its equivalent) assigned by each Rating Agency for CMBS as set forth in
Schedule 10 (Pricing
Matrix).
"Rating Agency" shall mean
Moody's and S&P.
"RECP ANTHRACITE International JV
Limited" a private limited company incorporated in Ireland with
registration number 458239, whose registered office is at 0 Xxxxx Xxxxxx, XXXX,
Xxxxxx 0, Xxxxxxx.
"RECP IV CMBS International
S.À.X.X." shall mean a private limited company (Société à Responsabilité
Limitée) incorporated in Luxembourg , whose statutory seat is at 0 xxx Xxxxxx,
X-0000 Xxxxxxxxxx, Xxxxx Xxxxx xx Xxxxxxxxxx.
"Reference Banks" shall mean
the principal London offices of HSBC Bank plc, The Royal Bank of Scotland plc,
Barclays Bank plc and Lloyds TSB Bank plc or such other banks as may be
appointed by the Agent in consultation with the Borrower.
"Relevant Interbank Market"
shall mean in relation to euro, the European interbank market, in relation to
sterling the London interbank market, in relation to Yen, the London interbank
market and, in relation to any other currency, the London interbank
market.
"Repeating Representations"
shall mean the representation and warranties of the Borrower set forth in
Clauses 17.1,
17.2, 17.3, 17.4, 17.5, 17.6, 17.7, 17.9, 17.10, 17.11, 17.12, 17.13, 17.15,
17.16, 17.17, 17.18,and 17.19 of this Agreement.
"Request for Borrowing" shall
mean a notice substantially in the form set out in Schedule 3 (Request for
Borrowing).
"Reservations" shall mean (i)
the effect of bankruptcy, examination, insolvency or similar laws affecting
generally the enforcement of creditor's rights, as such laws would apply in the
event of any bankruptcy, examination, receivership, insolvency or similar event
applicable to the relevant Obligor and (ii) general equitable principles
(whether enforceability of such principles is considered in a proceeding at law
or in equity).
-16-
"Responsible Officer" shall
mean, as to any person, the chief executive officer, chairman of the board,
president, executive vice president, and, with respect of financial matters,
executive vice president, vice president or the treasurer of such
person.
"Revenue Receipts" means any
monies received by the Borrower which are not Principal Receipts (or the
proceeds of the investment of the Borrower Principal Receipts).
"S&P" shall mean Standard
and Poor's Rating Services, a division of The XxXxxx-Xxxx Companies, Inc. or any
successor to its rating business.
"Screen Rate"
means:
|
(a)
|
in
relation to LIBOR, the British Bankers' Association Interest Settlement
Rate for the relevant currency and
period;
|
|
(b)
|
in
relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant
period;
|
displayed
on the appropriate page of the Reuters screen. If the agreed page is replaced or
service ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Borrower and the
Lenders.
"Secured Parties" or "Secured Party" shall have the
meaning provided in the Debenture.
"Securities
Account Control Agreement" shall mean the Securities Account Control
agreement dated 31 December 2008 between Xxxxxx Xxxxxxx Mortgage Servicing
Limited as secured party and Account Bank as intermediary and the
Borrower.
"the Security Trustee" has the
meaning provided in the heading to this Agreement.
"the Servicer" shall have the
meaning provided in Clause 13.1 (Servicing)
hereof.
"Servicer Notice" shall have
the meaning provided in Clause 13.1 (Servicing)
hereof.
"Servicing Agreement" shall
have the meaning provided in Clause 13.1 (Servicing)
hereof.
"Servicing Records" shall have
the meaning provided in Clause 13.1 (Servicing)
hereof.
"sterling" or "£" shall mean the lawful
currency of the United Kingdom.
"Subordinated Loan Agreement"
shall mean the agreement made between the Borrower and the Guarantor evidencing
the subordinated debt of the Borrower to the Guarantor which shall not be dated
later than the date of the initial loan under this Agreement.
"Subsidiary" shall mean in the
case of a company incorporated in England and Wales a subsidiary within the
meaning of Section 1159 of the Companies Act 2006 or a subsidiary undertaking
within the meaning of Section 1162 of the Companies Act 2006, as applicable, and
in the case of the Borrower only a subsidiary within the meaning of Section 155
of the Companies Act, 1963 (as amended) of the Republic of Ireland:
|
(a)
|
which
is controlled, directly or indirectly, by the first mentioned company or
corporation;
|
|
(b)
|
more
than half the issued share capital of which is beneficially owned,
directly or indirectly by the first mentioned company or corporation;
or
|
-17-
|
(c)
|
which
is a Subsidiary of another Subsidiary of the first mentioned company or
corporation,
|
and for
this purpose, a company or corporation shall be treated as being controlled by
another if that other company or corporation is able to direct its affairs
and/or to control the composition of its board of directors or equivalent
body.
"Supplemental Due Diligence
List" shall mean with respect to any item of Proposed Eligible
Collateral, information or deliveries concerning such Proposed Eligible
Collateral that the Agent shall request in addition to the Preliminary Due
Diligence Package.
"Syndication Date" shall mean
the day which is the day specified by as the day on which primary syndication of
the Facility is completed.
"Table Funded Eligible
Collateral" shall mean Eligible Collateral to be acquired by the Borrower
contemporaneously with the making of a Loan to it, where substantially all of
the proceeds of the relevant Loan will be used to acquire such Eligible
Collateral.
"TARGET" means Trans-European
Automated Real-time Gross Settlement Express Transfer payment system which
utilises interlinked national real time gross settlement systems and the
European Central Bank's payment mechanism and which began operations on 4
January 1999.
"TARGET Day" means any day on
which TARGET is open for the settlement of payments in euro.
"Tax" shall mean any tax, levy,
impost, duty or other charge or withholding of a similar nature (including any
penalty or interest payable in connection with any failure to pay or any delay
in paying any of the same).
"Termination Date" shall mean
17 February 2010 or such earlier date on which this Agreement may terminate in
accordance with its terms or by operation of law, provided that, if the Agent
determines that a Borrowing Base Deficiency is continuing at 5:00 p.m. (New York
time) on the Cut Off Date, the Termination Date shall, with effect from 5:00
p.m. (New York time) on the Cut Off Date, mean 17 February 2009, or such earlier
date on which this Agreement may terminate in accordance with its terms or by
operation of law.
"The Royal Bank of Scotland plc,
Frankfurt Branch" shall mean The Royal Bank of Scotland plc, Frankfurt
Branch in its capacity as agent under the Charlotte Credit
Facility.
"Total Maximum Credit" shall
mean the aggregate of the Maximum Credit being $300,000,000 as at the date of
this Agreement.
"Transfer Certificate" shall
mean a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate)
or any other form agreed between the Agent and the Borrower.
"Transfer Date" shall mean in
relation to a transfer, the later of:
|
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
|
(b)
|
the
date on which the Agent executes the Transfer
Certificate.
|
-18-
"Trust Receipt" shall mean the
receipt delivered by the Custodian pursuant to the Custodial Agreement
acknowledging receipt of a Collateral File in connection with a
Loan.
"Underwriting Issues" shall
mean, with respect to any Collateral as to which the Borrower intends to request
a Loan, all information that has come to the Borrower's attention, based on the
making of reasonable inquiries and the exercise of reasonable care and diligence
under the circumstances, which would be considered a materially "negative"
factor (either separately or in the aggregate with other information), or a
material defect in loan documentation or closing deliveries (such as any absence
of any material Collateral Documents), to a reasonable institutional lender in
determining whether to originate or acquire the Collateral in
question.
"Unpaid Sum" shall mean any sum
due and payable but unpaid by an Obligor under the Finance
Documents.
"VAT" shall mean value added
tax as provided for in the Value Added Tax Act 1972 as amended, of the Republic
of Ireland and any other tax of a similar nature.
"VAT Group" shall mean a VAT
group as defined by Section 8(8) of the Value Added Tax Act, 1972, as amended of
the Republic of Ireland.
"Yen" and "¥" each mean the lawful
currency for the time being of Japan.
1.2
|
Construction
|
|
(a)
|
Unless
a contrary indication appears any reference in this Agreement
to:
|
|
(i)
|
the
"the Agent",
"the Security
Trustee" any "Finance Party", any
"the Lender", any
"Obligor" or any
"Party" shall be
construed so as to include its successors in title, permitted assigns and
permitted transferees;
|
|
(ii)
|
"assets" includes present
and future properties, revenues and rights of every
description;
|
|
(iii)
|
a
"Finance Document"
or any other agreement or instrument is a reference to that Finance
Document or other agreement or instrument as amended or
novated;
|
|
(iv)
|
"indebtedness" includes
any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or
contingent;
|
|
(v)
|
a
"person" includes
any person, firm, company, corporation, government, state or agency of a
state or any association, trust or partnership (whether or not having
separate legal personality) of two or more of the
foregoing;
|
|
(vi)
|
a
"regulation"
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or
organisation;
|
|
(vii)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
-19-
|
(viii)
|
a
time of day is a reference to London
time.
|
|
(b)
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
(c)
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
(d)
|
A
Default (other than an Event of Default) and an Event of Default is "continuing" if it has
not been remedied or waived.
|
|
(e)
|
Unless
a contrary intention appears words importing the singular shall include
the plural and vice versa.
|
|
(f)
|
In
this Agreement, unless otherwise specified, where an expression requires
any amounts of money to be aggregated or otherwise added where such
amounts are not all denominated in the same currency then the aggregate of
such amounts shall be:
|
where "D"
is the aggregate of all such amounts denominated in the Base Currency and "X(R)"
is the aggregate of all such amounts denominated in currency other than the Base
Currency converted into the Base Currency using the Agent's Spot Rate of
Exchange on the day such calculation is made.
1.3
|
Third
party rights
|
A person
who is not a Party has no right under the Contracts (Rights of Third Parties)
Act 1111 to enforce or to enjoy the benefit of any term of this
Agreement.
1.4
|
Original
Facility Agreement, First Amended Facility Agreement Second Amended
Facility Agreement and December 2008 Amended Facility
Agreement
|
|
(a)
|
The
Borrower, the Security Trustee, the Initial Lender and Xxxxxx Xxxxxxx
Bank, N.A., acting as agent for the Initial Lender (the "Original Agent" and,
together with the Borrower, the Security Trustee and the Initial Lender,
the "Original
Parties") entered into a multicurrency revolving facility agreement
dated 17 February 2006 (the "Original Facility
Agreement").
|
|
(b)
|
Pursuant
to an amendment and restatement deed in relation to the Original Facility
Agreement dated 20 July 2007, the Original Parties amended and
restated the Original Facility Agreement (the "First Amended Facility
Agreement").
|
|
(c)
|
Pursuant
to an amendment and restatement deed in relation to the First Amended
Facility Agreement dated 15 February 2008, the Original Parties
amended and restated the First Amended Facility Agreement (the "Second Amended Facility
Agreement").
|
|
(d)
|
Pursuant
to clause 21 of the First Amended Facility Agreement the Initial Lender,
the First New Lender and the Original Agent entered into a Transfer
Certificate dated on or about 15 February 2008 (the "First Transfer
Certificate") whereby the rights and obligations of the Initial
Lender under the First Amended Facility Agreement were transferred to the
First New Lender.
|
|
(e)
|
Subsequent
to the execution of the First Transfer Certificate pursuant to clause
23.10 of the First Amended Facility Agreement the Original Agent resigned
as agent under
|
-20-
the First
Amended Facility Agreement and appointed in its place Xxxxxx Xxxxxxx Principal
Funding Inc (in such capacity the "Agent" and, together with the
Borrower, the Security Trustee and the First New Lender, the "Parties").
(f)
|
Pursuant to an amendment and restatement deed in relation to the Second Amended Facility Agreement dated 31 December 2008, the Parties amended and restated the Second Amended Facility Agreement (the "December 2008 Facility Agreement"). | |
|
(f)
|
The
Parties now wish to amend and restate the December 2008 Amended
Facility Agreement in the manner set out herein (the "Agreement" and the
"Third Amended Facility
Agreement").
|
1.5
|
Repeating
Representations
|
The
Borrower represents and warrants to each Finance Party in the terms of each of
the Repeating Representations on the date hereof.
1.6
|
Conditions
Precedent to the Third Amendment and
Restatement
|
This
Agreement is conditional on the Agent having received all of the documents and
other evidence listed in Part A of Part VI of Schedule 2 (Conditions Precedent) in form
and substance satisfactory to the Agent. The Agent shall notify the Borrower and
the Lenders, promptly upon being so satisfied.
-21-
SECTION
2
THE
FACILITY
2.
|
THE
FACILITY
|
2.1
|
The
Facility
|
Subject
to the terms of this Agreement, the Lenders make available to the Borrower a
multicurrency loan facility in a maximum aggregate amount from time to time
outstanding equal to the Total Maximum Credit.
2.2
|
Finance Parties' rights and
obligations
|
|
(a)
|
The
obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations
under the Finance Documents does not affect the obligations of any other
party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under the
Finance Documents.
|
|
(b)
|
Subject
to the terms and conditions of this Agreement, during the Availability
Period the Borrower may borrow and, (and for the avoidance of doubt,
notwithstanding that the Availability Period has come to an end, and the
Borrower shall be entitled to and to the extent required by this Agreement
shall), make repayments hereunder, provided that,
notwithstanding the foregoing, no Lender shall have any obligation to make
a Loan to the Borrower in excess of its Available
Credit.
|
|
(c)
|
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor shall be a
separate and independent debt.
|
|
(d)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
The
Borrower shall apply all amounts borrowed by it under the Facility towards the
acquisition or funding of Eligible Collateral and the purchase of Interest Rate
Protection Agreements relating to such Eligible Collateral.
3.2
|
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
-22-
SECTION
3
LOANS
4.
|
CONDITIONS
OF LOANS
|
4.1
|
Initial conditions
precedent
|
The
Borrower may not deliver its initial Request for Borrowing unless the Agent has
received all of the documents and other evidence listed in Part I of Schedule 2
(Conditions Precedent)
in form and substance satisfactory to the Agent. The Agent shall
notify the Borrower and the Lenders, promptly upon being so
satisfied.
4.2
|
Further conditions
precedent
|
The Agent
will only be obliged to comply with a Request for Borrowing if (i) on the
Effective Date the representations and warranties made by each Obligor under
each Finance Document are true in all material respects; and (ii) on any
proposed Funding Date:
|
(a)
|
the
Borrower has complied with the provisions of Part II and III of Schedule 2
(Conditions
Precedent);
|
|
(b)
|
the
Repeating Representations to be made by the Borrower and any other
representations and warranties made by an Obligor under each Finance
Document (other than this Agreement) are true in all material respects and
in the case of the Repeating Representations, are deemed to be made by the
Borrower by reference to the facts and circumstances then
existing;
|
|
(c)
|
the
procedures set out in Clause 5 (Procedure for Loans)
have been complied with; and
|
|
(d)
|
the
Availability Period has not
expired.
|
4.3
|
Conditions
Subsequent
|
On or
before 5:00 p.m. (New York time) on the Cut Off Date, the Borrower shall provide
the Agent with all of the documents and other evidence listed in Part B of Part
VI of Schedule 2 (Conditions
Precedent) in form and substance satisfactory to the
Agent. The Agent shall notify the Borrower and the Lenders, promptly
upon being so satisfied.
5.
|
PROCEDURE
FOR LOANS
|
5.1
|
Preliminary Approval of
Eligible Collateral
|
In
respect of any assets which the Borrower proposes to be included in the
Borrowing Base and to be granted as security to the Security Trustee pursuant to
the Debenture the Borrower shall:
|
(a)
|
submit
to the Agent a Preliminary Due Diligence Package for the Agent’s review
and approval;
|
|
(b)
|
not
later than five (5) Business Days after the Agent has received a complete
Preliminary Due Diligence Package, the Agent may: (i) request in the
Agent's sole but good faith discretion additional information that the
Agent shall specify on a Supplemental Due Diligence List; (ii) notify the
Borrower of the Asset Value for the
|
-23-
Proposed
Eligible Collateral; or (iii) deny, in the Agent's sole and absolute discretion,
the Borrower's request for a Loan hereunder; and
|
(c)
|
in
the event of a request for supplemental information by the Agent pursuant
to paragraph (b)(i) of Clause 5.1, the Agent shall thereafter advise the
Borrower in accordance with paragraph (b)(ii) of Clause 5.1 or
paragraph (b)(iii) not later than five (5) Business Days following receipt
of the requested information.
|
The
Agent's failure to respond to the Borrower's request shall be deemed to be a
denial of the Borrower's request for a Loan, unless otherwise agreed to between
the Borrower and the Agent in writing. Nothing in this Clause 5.1 or
elsewhere in this Agreement shall, or be deemed to prohibit the Agent from
determining in its sole but good faith discretion the adequacy, completeness and
appropriateness of or from disapproving any and all financial and other
underwriting data required to be supplied by the Borrower under this
Agreement.
5.2
|
Final Approval of Proposed
Eligible Collateral
|
In the
event that the Agent notifies the Borrower of the Asset Value for the Proposed
Eligible Collateral and the Borrower desires to obtain a Loan secured by the
Proposed Eligible Collateral the Borrower shall:
|
(a)
|
notify
the Agent of the Advance Rate selected by the Borrower with respect to
such Loan which for greater certainty shall not cause the Lenders' Net
Aggregate Exposure and the Lenders' Net Exposure for such Loan to exceed
80% and 85%, respectively;
|
|
(b)
|
satisfy
the conditions precedent set forth in Part I and/or II, as applicable, of
Schedule 2 (Conditions
Precedent); and
|
|
(c)
|
provide
the Agent, for the Agent's review, the following to the extent not
otherwise included in the Preliminary Due Diligence
Package:
|
|
(i)
|
Environmental and
Engineering. If applicable an environmental report and
an engineering report, each in form and substance satisfactory to the
Agent, by an engineer and environmental consultant reasonably acceptable
to the Agent.
|
|
(ii)
|
Appraisal. If
applicable an Appraisal.
|
|
(iii)
|
Insurance. With respect
to Eligible Collateral that is secured on real property, certificates or
other evidence of insurance demonstrating insurance coverage in respect of
such real property of types, in amounts, with insurers and otherwise in
compliance with the terms, provisions and conditions set forth in the
related Collateral Documents or the finance documents related to such
Eligible Collateral. Such certificates or other evidence shall
indicate that the lead lender on the whole loan in which the Borrower is a
participant will be named as an additional insured as its interest may
appear and shall contain a loss payee endorsement in favour of such
additional insured with respect to the property policies required to be
maintained under the related Collateral
Documents.
|
|
(iv)
|
Survey. With respect to
the Collateral, and to the extent obtained by the Borrower from the
Collateral Obligor at the origination of the underlying
loan,
|
-24-
relating thereto, a current survey of such real property in a form reasonably satisfactory to the Agent. | ||
|
(v)
|
Security Search
Reports. Satisfactory reports of any registered security interests,
tax security, judgment and litigation searches and certificate of title
reports and updates, as applicable, conducted by a reputable law firm
reasonably acceptable to the Agent with respect to the Collateral, the
Borrower and the related Collateral Obligor; such searches to be conducted
in each location the Agent shall reasonably
designate.
|
|
(vi)
|
Security Instruments.
All security instruments and documents granting, to the extent not already
done so by the Debenture, to the Security Trustee a perfected first
ranking security interest in the Eligible Collateral (and in or over any
Interest Rate Protection Agreements held by the Borrower with respect
thereto) which shall be subject to no additional security interest except
as expressly permitted by the Agent. Such security instruments
and documents shall contain such representations and warranties concerning
the Eligible Collateral and such other terms as shall be reasonably
satisfactory to the Agent.
|
|
(vii)
|
Opinions of Counsel. A
copy of an opinion to the underlying lender on the Eligible Collateral and
its successors and assigns from counsel to the Collateral Obligor on the
underlying loan transaction, as applicable, as to the enforceability of
the loan documents governing such transaction and such other matters as
the Agent shall require (including, without limitation, opinions as to due
formation and incorporation, authority, choice of law and perfection of
security interests).
|
|
(viii)
|
Additional Real Property
Matters. To the extent obtained by the Borrower from the Collateral
Obligor relating to any item of Eligible Collateral at the origination of
the underlying loan or equity interest relating thereto, the Borrower
shall have delivered to the Agent such other real estate related
certificates and documentation as may have been requested by the Agent
pursuant to the terms of this Agreement, such as reports or certificates
on title or other information in connection with the relevant real
property.
|
|
(ix)
|
Eligible Collateral. In
the case of Eligible Collateral which represents a participation interest
in a Mortgage Loan, in addition to the delivery of the items in paragraphs
(vi) and (vii) of Clause 5.2, the Agent shall have received all
documentation specified in paragraphs (i) and (v) of Clause 5.2 as if
the underlying mortgage loan were the direct Collateral to the extent the
Borrower possesses such documentation or has access to such documentation
because it was provided to the related lead lender and made available to
the Borrower and, in addition, all documents evidencing the Eligible
Collateral, including, but not limited to, an original participation
certificate and the related participation
agreement.
|
-25-
|
(x)
|
B Notes, Mezzanine Notes, and
Preferred Equity Interests. In the case of a B Note, or Mezzanine
Loan or Preferred Equity Interest, the Agent shall have received all
documentation specified herein as if the underlying loan were the direct
item of Collateral and, in addition, all documentation evidencing or
otherwise relating to such B Note, Mezzanine Loan or Preferred Equity
Interest, as applicable.
|
|
(xi)
|
CMBS. In the case of
CMBS, the Agent shall have received (a) a copy of the applicable servicing
agreement, trust deed, participation agreement or similar document
governing the issuance and administration of the CMBS; (b) a copy of any
new issue asset summary books; (c) copy of the applicable prospectus or
offering memorandum; (d) to the extent that the CMBS is certificated, an
original of the relevant certificate duly endorsed in blank to the
Security Trustee; (e) to the extent that the CMBS is not certificated, all
documents requested by the Agent to confirm that the CMBS is being held in
an appropriate security account or such other evidence of confirmation of
the sale to the Agent as the Agent shall require; and (f) a copy of
any other agreement or instrument evidencing or otherwise governing the
CMBS.
|
|
(xii)
|
Other Documents. The
Agent shall have received such other documents as the Agent or its counsel
shall request with respect to each or any item of Eligible
Collateral.
|
5.3
|
Collateral Approval or
Disapproval
|
Following
the date upon which the Borrower satisfied the conditions set out in
Clause 5.2 (Final Approval of Proposed Eligible
Collateral), or has delivered such items or documents fully executed, if
applicable, in final form, the Agent shall either:
|
(a)
|
if
the Collateral Documents with respect to the Collateral or the security
interest to be granted over such Collateral in favour of the Security
Trustee are not reasonably satisfactory in form and substance to the
Agent, notify the Borrower that the Lender has not approved the Proposed
Eligible Collateral; or
|
|
(b)
|
notify
the Borrower and the Custodian that the Agent has approved the Proposed
Eligible Collateral as Eligible Collateral and such notice shall identify
the documents to be delivered to the Custodian in connection with such
Eligible Collateral pursuant to Clause 5.2 (Final Approval of Proposed
Eligible Collateral) and Part II and Part III of
Schedule 2 (Conditions Precedent)
and the party whom the Agent shall designate to record or register and/or
file, as the case may be, any security interest or any document or
agreement evidencing such security interest necessary to perfect the
Security Trustee's security interest in the Eligible
Collateral.
|
The terms
of delivery and filing and/or recordation or registration of such security
interest shall if the Agent and the Security Trustee deem it necessary to do so
be set forth in a separate agreement between the Agent, the Security Trustee and
their designee. The Agent's failure to respond to the Borrower within
two (2) Business Days shall be deemed to be a denial of the
-26-
Xxxxxxxx’s
request that the Agent approve the Proposed Eligible Collateral, unless the
Agent and the Borrower have agreed otherwise in writing.
5.4
|
Procedure for Loan with Respect
to Eligible Collateral
|
Once the
Agent has approved the Eligible Collateral in accordance with Clause 5.3
(Collateral Approval or
Disapproval) above the Borrower may request a Loan hereunder, on any
Business Day during the period from and including the Effective Date to and
including the day falling fifteen (15) Business Days prior to the Termination
Date, by delivering to the Agent, with a copy to the Security Trustee, a Request
for Borrowing, which request must be received by the Agent prior to 2:00 p.m.,
London time, one (1) Business Day prior to the requested Funding Date provided that if the Borrower
requests a Loan to be made in Yen, then the Borrower shall deliver the Request
for Borrowing no later than two (2) Business Days prior to the requested Funding
Date.
5.5
|
Completion of Request for
Borrowing
|
The
Request for Borrowing shall:
|
(a)
|
attach
a schedule identifying the Eligible Collateral that the Borrower proposes
to grant by way of security to the Security Trustee and to be included in
the Borrowing Base;
|
|
(b)
|
specify
the Funding Date;
|
|
(c)
|
specify
the Advance Rate selected by the Borrower, which in no event shall cause:
(i) the Lenders' Net Aggregate Exposure to exceed 80%; and (ii) the
Lenders' Net Exposure for such Loan to exceed
85%;
|
|
(d)
|
specify
the Applicable Margin;
|
|
(e)
|
specify
the account into which the aggregate amount of the Loan will be
transferred;
|
|
(f)
|
specify
the currency and amount of the Loan in order to comply with Clause 6
(Optional
Currencies); and
|
|
(g)
|
attach
a certificate signed by a Responsible Officer of the Borrower certifying
as to the truth, accuracy and completeness of the above, which certificate
shall specifically include a statement that the Borrower is in compliance
with any requirements of any Governmental Authority and is qualified to do
business in all required
jurisdictions.
|
Contemporaneously
with the delivery of Request for Borrowing the Borrower shall deliver to the
Agent, with a copy to the Custodian, a Custodial Identification Certificate
along with the accompanying Collateral Schedule with respect to all proposed
Eligible Collateral. In the event the Borrower revokes the Request
for Borrowing delivered to the Agent, the Borrower shall be liable to pay, no
later than one (1) Business Day after written request from the Agent, and hereby
agrees to indemnify and hold the Agent and the Lenders harmless from and
against, all losses, costs and expenses incurred by the Agent or the Lenders in
connection with the revocation of such Request for Borrowing.
-27-
5.6
|
Delivery of Collateral Files
and Finance Documents.
|
In
connection with the approval of the Eligible Collateral and the delivery of a
Request for Borrowing the Borrower shall comply with the following
requirements,
|
(a)
|
The
Borrower shall deliver the Collateral Files in the following
manner:
|
|
(i)
|
in
the case of Eligible Collateral that is not Table Funded Eligible
Collateral, the Borrower shall deliver to the Custodian no later than 3:00
p.m., London time, two (2) Business Days prior to the Funding Date all
fully executed original or copy documents and instruments required by the
Agent to comprise the Collateral File;
and
|
|
(ii)
|
in
the case of Table Funded Eligible Collateral, the Borrower shall deliver
to the Custodian no later than three (3) Business Days after the Funding
Date all fully executed original or copy documents and instruments
required by the Agent to comprise the Collateral
File.
|
|
(b)
|
No
later than 5:00 p.m., London time, one (1) Business Day prior to each
Funding Date, the Borrower shall provide the Custodian with a final
Custodial Identification Certificate and related Collateral Schedule with
respect to the Eligible Collateral, indicating any changes, if any, from
the Custodial Identification Certificate and related Collateral Schedule
heretofore delivered to the Agent and the Custodian pursuant to
Clause 5.5 (Completion of Request for
Borrowing) above.
|
|
(c)
|
If
the Borrower shall deliver the Request for a Borrowing pursuant to Clause
5.4 (Procedure for Loan
with respect to Eligible Collateral) and all
conditions precedent set forth in Clauses 5.1 (Preliminary Approval of
Eligible Collateral), 5.2 (Final Approval of Proposed
Eligible Collateral), 5.3 (Collateral Approval or
Disapproval), 5.4 (Procedure for Loan with
respect to Eligible Collateral) and Parts I and II of Schedule 2
(Conditions
Precedent) have been met, and provided no Default or Event of
Default shall have occurred and be continuing, the Agent shall advise the
Lender(s) and the Lender(s) shall make a Loan to the Borrower on the
Funding Date, in the amount so requested and approved by the
Agent.
|
|
(d)
|
Subject
to the satisfaction of the conditions set out in this Clause 5 and to
the provisions of Schedule 2 Parts I and II, a Loan will be made available
to the Borrower on the Funding Date by no later then 3:00 p.m., London
time, on such date, and the funds comprised in such Loan will then be made
available to the Borrower by the Lender transferring, via wire transfer,
to the relevant account identified by the Borrower in the related Request
for Borrowing in the aggregate amount of such Loan in funds immediately
available to the Borrower. The Agent may consider on a
case-by-case basis in its sole and absolute discretion, alternative
funding arrangements requested by the
Borrower.
|
|
(e)
|
From
time to time, the Borrower shall forward to the Custodian additional
original documents or additional documents evidencing any: (i) assumption,
modification, consolidation or extension of a Collateral Loan Document
comprising a portion of the Collateral; or (ii) any amendment to the
operative documents with respect to
Other
|
-28-
Approved Collateral, in each case approved by the Agent in accordance with the terms of this Agreement and upon receipt of any such other documents, the Custodian shall hold such other documents as the Agent shall request from time to time. | ||
|
(f)
|
With
respect to any documents which have been delivered or are being delivered
to recording or registration offices for recording or registration and
have not been returned to the Borrower in time to permit their delivery
hereunder at the time required, in lieu of delivering such original
documents, the Borrower shall deliver to the Custodian a true copy thereof
with a certificate of a Responsible Officer of the Borrower certifying
that such copy is a true, correct and complete copy of the original, which
has been transmitted for recordation. The Borrower shall
deliver such original documents to the Custodian promptly when they are
received.
|
|
(g)
|
Notwithstanding
anything in this Agreement to the contrary, if the Borrower proposes that
Other Approved Collateral should serve as the Collateral for a Loan, then
the procedure for the approval of such Other Approved Collateral, shall
follow, mutatis
mutandis, the procedures described in Clauses 5.1 (Preliminary Approval of
Eligible Collateral), 5.2 (Final Approval of Proposed
Eligible Collateral), 5.3 (Collateral Approval or
Disapproval), paragraphs (a) - (d), (f) and (g) of this
Clause 5.6 and such other procedures including those set out in
Schedule 2 Part III as the Agent shall in its sole discretion
require.
|
5.7
|
Lenders'
participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender shall
make its participation in each Loan available by the Funding Date through
its Facility Office.
|
|
(b)
|
The
amount of each Lender's participation in each Loan will be equal to the
proportion borne by its Available Credit to the Total Maximum Credit
immediately prior to making the
Loan.
|
|
(c)
|
The
Agent shall determine the Base Currency Amount of each Loan which is to be
made in an Optional Currency and shall notify each Lender of the amount,
currency and the Base Currency Amount of each Loan and the amount of its
participation in that Loan, in each case on or about 11:00 am London
time.
|
6.
|
OPTIONAL
CURRENCIES
|
6.1
|
Selection of
currency
|
The
Borrower shall select the currency and amount of a loan in a Request for
Borrowing.
6.2
|
Currency and
amount
|
The
currency specified in a Request for Borrowing shall be any Optional Currency but
not dollars.
6.3
|
Unavailability of a
currency
|
If on the
Funding Date:
|
(a)
|
a
Lender notifies the Agent that the Optional Currency requested is not
readily available to it in the amount required;
or
|
-29-
(b)
|
a
Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would contravene a
law or regulation applicable to
it,
|
the Agent
will give notice to the Borrower to that effect on the Funding
Date. In this event, any Lender that gives notice pursuant to this
Clause 6.3 will be required to participate in the Loan in the Base
Currency, Yen, sterling or euros as the relevant Lender may select in an amount
equal to that Xxxxxx's proportionate amount of the proposed Loan converted to
the selected currency at the Agent's Spot Rate of Exchange for the purchase of
the requested optional currency at or around 11:00 am (London time) on the
relevant Funding Date. Such Lender's participation will be treated as
a separate Loan denominated in the Base Currency, Yen, sterling or euros as the
Lender may indicate during the relevant Interest Period.
6.4
|
Participation in a
Loan
|
Each
Lender's participation in a Loan will be determined in accordance with paragraph
(b) of Clause 5.7 (Lenders'
participation).
-30-
SECTION
4
REPAYMENT,
PRE-PAYMENT AND CANCELLATION,
MANDATORY
REPAYMENT OR PLEDGE
7.
|
REPAYMENT
|
The
Borrower shall repay the aggregate outstanding principal amount of the Loans and
all accrued and unpaid interest thereon on the Termination Date.
8.
|
REPAYMENT,
PRE-PAYMENT AND CANCELLATION
|
8.1
|
Illegality
|
If, at
any time, it is or will become unlawful in any applicable jurisdiction for a
Lender to perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan:
|
(a)
|
the
Lender shall promptly notify the Agent upon becoming aware of that
event;
|
|
(b)
|
upon
the Agent notifying the Borrower, the relevant Loan of that Lender will be
immediately cancelled; and
|
|
(c)
|
the
Borrower shall repay that Xxxxxx's participation in the relevant Loan made
to the Borrower on the date specified by the Lender in the notice
delivered to the Agent (being no earlier than the last day of any
applicable grace period permitted by
law).
|
8.2
|
Voluntary pre-payment of
Loans
|
The
Borrower may, if it gives the Agent not less than two (2) Business Days' (or
such shorter period as the Majority Lenders may agree) prior notice, prepay the
whole or any part of a Loan (but, if in part, being an amount that reduces the
Base Currency Amount of such Loan by a minimum amount of $100,000), provided that any such
pre-payment shall be accompanied by an amount representing any accrued but
unpaid amounts due under the Finance Documents, and the Exit Fee, if
applicable.
8.3
|
Mandatory Pre-Payment or granting of further
security to the Security
Trustee
|
|
(a)
|
Pre-Payment or granting of
further security on Borrowing Base
Deficiency
|
The Agent
may determine and re-determine the Borrowing Base on any Business Day and on as
many Business Days as it may elect. If at any time the Base Currency
amount of the aggregate outstanding principal amount of the Loans exceeds the
Borrowing Base (a "Borrowing
Base Deficiency"), as determined by the Agent and notified to the
Borrower on any Business Day, the Borrower shall, not later than one (1)
Business Day after receipt of such notice, either prepay the Loans in part or in
whole or grant to the Security Trustee by way of security for the Secured
Obligations such additional Eligible Collateral (which Eligible Collateral shall
be in all respects acceptable to the Agent in accordance with the provisions of
this Agreement) such that after giving effect to such pre-payment or the
granting of such security that the aggregate outstanding principal amount of the
Loans will not exceed the Borrowing Base.
-31-
|
(b)
|
Pre-payment on event of default
relating to the Collateral
|
If at any
time under any Collateral Document evidencing Collateral: (i) there is an "Event of Default" (as defined
in the applicable documents in the Collateral File), or event with which the
giving of notice or lapse of time or both would become an "Event of Default" (as defined
in the applicable documents in the Collateral File); or (ii) any representation
or warranty made by or on behalf of the relevant Collateral Obligor becomes
false or misleading in any material respect; or (iii) the relevant Collateral
Obligor or person fails to perform or observe any material covenant or other
obligation, the Agent may, in its sole discretion and without regard to any
determination of the Asset Value of such Collateral, notify the Borrower of such
occurrence and may require that the Asset-Specific Loan Balance related to the
relevant Collateral be prepaid, in whole or in part, in the determination of the
Lender; provided, however, the Borrower may reallocate the Asset-Specific Loan
Balance relating to the relevant Collateral to other Collateral securing the
Loans (if applicable) to the extent consistent with the terms of this Agreement,
and the Borrower shall only be required to prepay that portion of such
Asset-Specific Loan Balance to the extent such reallocation would cause a
Borrowing Base Deficiency. Not later than one (1) Business Day after
the receipt of such notice, the Borrower shall prepay such portion of the
Asset-Specific Loan Balance related to such Collateral as shall have been
required by the Agent. The Agent may, in its sole discretion,
determine and re-determine the amount to be prepaid irrespective of whether or
not any statement of fact contained in any officer’s certificate delivered
pursuant to paragraph (g) of Clause 5.5 (Completion of Request for
Borrowing) or any representation or warranty of the Borrower set forth in
Clause 17.6 (True and
Complete Disclosure) was true to the Borrower’s actual
knowledge.
|
(c)
|
Pre-payment,
Amortisation
|
The
Borrower shall:
|
(i)
|
utilise
all Principal Receipts and, following the payment of interest as required
by this Agreement, Revenue Receipts in pre-paying the Loans but in any
event shall strictly comply with the provisions of Clause 19.19
(Remittance of
Pre-payments); and
|
|
(ii)
|
repay
an amount equal to $15,000,000 (other than from Revenue Receipts or
Principal Receipts) to be received by the Agent for value prior to 17
August 2009.
|
|
(d)
|
Re-payment,
General
|
With
respect to any item of Collateral, the Borrower shall pre-pay to the Agent an
amount equal to the amount of casualty or condemnation proceeds (if any) paid
to, or for the benefit of, the Borrower or any Collateral Obligor in respect of
such item of Collateral that is destroyed to the extent that the Borrower is not
required under the underlying collateral documents with the Collateral Obligor
to reserve, escrow, re-advance or apply such proceeds for the benefit of such
Collateral Obligor or the underlying collateral. So long as no
Default or Event of Default has occurred and is then continuing, such amounts
paid to the Agent shall be applied in reduction of the
-32-
Asset-Specific
Loan Balance relating to such item of Collateral. Each voluntary
pre-payment received during the continuation of any Default or Event of Default
hereunder shall be applied in accordance with provisions contained in Clause 15
of the Debenture.
8.4
|
Right of repayment and
cancellation in relation to a single
Lender
|
|
(a)
|
If:
|
|
(i)
|
any
sum payable to any Lender by the Borrower is required to be increased
under paragraph (c) of Clause 12.2 (Tax
gross-up);
|
|
(ii)
|
any
Lender claims indemnification from the Borrower under Clause 12.3
(Tax indemnity)
or Clause 13.1 (Increased costs);
or
|
|
(iii)
|
any
Lender notifies the Agent of its Additional Cost Rate under paragraph 3 of
Schedule 4 (Mandatory
Cost formulae),
|
the
Borrower may, whilst (in the case of paragraphs (i) and (ii) above) the
circumstance giving rise to the requirement or indemnification continues or, (in
the case of paragraph (iii) above) that Additional Cost Rate is greater than
zero, give the Agent notice of cancellation of a Loan of that Lender and its
intention to procure the repayment of that Xxxxxx's participation in the
Loans.
|
(b)
|
On
receipt of a notice referred to in paragraph (a) above, the Loan of that
Lender shall immediately be reduced to
zero.
|
|
(c)
|
Promptly
after the Borrower has given notice under paragraph (a), the Borrower
shall repay that Xxxxxx's participation in that
Loan.
|
8.5
|
Restrictions
|
|
(a)
|
Any
notice of cancellation or pre-payment given by any Party under this
Clause 8 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which the
relevant cancellation or pre-payment is to be made and the amount of that
cancellation or pre-payment.
|
|
(b)
|
Any
pre-payment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Funding Costs (except
in the case of a pre-payment under paragraphs (b) and (d) of
Clause 8.3 and paragraph (b) of Clause 10.2 in respect of which
the applicable Funding Costs shall be waived), without premium or penalty,
except for all amounts due under Clause 11 (Fees)
hereof.
|
|
(c)
|
No
part of the Facility which is repaid or prepaid may be
re-borrowed.
|
|
(d)
|
The
Borrower shall not repay or prepay all or any part of the Loans or cancel
all or any part of the Total Maximum Credit except at the times and in the
manner expressly provided for in this
Agreement.
|
|
(e)
|
No
amount of the Total Maximum Credit cancelled under this Agreement may be
subsequently reinstated.
|
-33-
|
(f)
|
So
long as no Default or Event of Default has occurred and is then
continuing, each voluntary pre-payment shall be applied to reduce any
Asset Specific Loan Balance as designated by the Borrower to the Agent in
writing.
|
|
(g)
|
Each
voluntary pre-payment received during the continuation of any Default or
Event of Default hereunder shall be applied in such manner as the Security
Trustee shall determine in its sole and absolute discretion subject always
to the provisions contained in Clause 15 of the
Debenture.
|
8.6
|
Release of Security
Interest
|
Upon the
termination of this Agreement and the repayment by the Borrower or the Guarantor
to Lender of all Loans and the performance of all of the Obligors' other
obligations under the Finance Documents and related documents in accordance with
the Debenture and the discharge in full of all of the other Secured Obligations
the Security Trustee shall release its security interest in any remaining
Collateral.
-34-
SECTION
5
COSTS
OF LOAN
9.
|
INTEREST
|
9.1
|
Calculation of
Interest
|
The Agent
shall calculate the rate of interest on each Loan for each Interest Period which
will be the percentage rate per annum which is the aggregate of:
|
(a)
|
the
Applicable Margin;
|
|
(b)
|
LIBOR
or, in relation to any Loan in euro, EURIBOR,
plus;
|
|
(c)
|
Mandatory
Costs, if any.
|
9.2
|
Payment of
Interest
|
On each
relevant Interest Payment Date the Borrower shall pay all accrued and unpaid
interest on each Loan in respect of the preceding Interest Period.
9.3
|
Default
Interest
|
|
(a)
|
If
an Obligor fails to pay any amount payable by it under a Finance Document
on its due date, interest shall accrue on the overdue amount from the due
date up to the date of actual payment (both before and after judgment) at
a rate which, subject to paragraph (b) below, is two per cent higher than
the rate which would have been payable if the overdue amount had, during
the period of non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a duration
selected by the Agent (acting reasonably) (the "Post Default Rate of
Interest"). Any interest accruing under this Clause 9.3
shall be immediately payable by the Obligor on demand by the
Agent.
|
|
(b)
|
Default
interest (if unpaid) arising on an overdue amount will be compounded with
the overdue amount at the end of each Interest Period applicable to that
overdue amount but will remain immediately due and
payable.
|
9.4
|
Notification of rates of
interest
|
The Agent
shall at the request of a Lender or the Borrower notify the requesting party of
the determination of the rate of interest applicable to any Interest Period
under this Agreement.
9.5
|
Non-Business
Days
|
If an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar month
(if there is one) or the preceding Business Day (if there is not).
10.
|
CHANGES
TO THE CALCULATION OF INTEREST
|
10.1
|
Absence of
quotations
|
Subject
to Clause 10.2 (Market
disruption), if LIBOR, or if applicable, EURIBOR is to be determined by
reference to the Reference Banks but a Reference Bank does not supply a
quotation on or about 11:00 am London time on the Quotation Day, LIBOR, or if
applicable,
-35-
XXXXXXX
shall be determined on the basis of the quotations of the remaining Reference
Banks.
10.2
|
Market
disruption
|
|
(a)
|
If
a Market Disruption Event occurs in relation to a Loan then the Borrower
shall be notified promptly thereof by the Agent and the rate of interest
shall be the sum of:
|
|
(i)
|
the
Applicable Margin;
|
|
(ii)
|
the
rate notified to the Agent by each Lender of such Loan as soon as
practizcable and in any event before interest is due to be paid in respect
of the correct Interest Period in respect of such Loan, to be that which
expresses as a percentage rate per annum the cost to that Lender of
funding its participation in that Loan from whatever source it may
reasonably select; and
|
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Xxxxxx's participation in a
Loan.
|
|
(b)
|
Promptly
after determination of the rate of interest in relation to a Loan in
accordance with paragraph (a) of Clause 10.2, the Agent shall notify the
Borrower of such rate of interest whereupon the Borrower shall either: (i)
proceed with the Loan at the rate of interest provided for in this
Agreement; (ii) prepay the Loan in relation to which the rate of interest
in paragraph (a) of Clause 10.2 was determined; or (iii) revoke the
Request for Borrowing in relation of which the rate of interest was
determined in paragraph (a) of Clause
10.2.
|
|
(c)
|
In
this Agreement "Market
Disruption Event" means:
|
|
(i)
|
at
11:00 am, London time on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of the
Reference Banks supplies a rate to the Agent to determine LIBOR, or if
applicable, EURIBOR for the relevant Interest Period;
or
|
|
(ii)
|
the
Lender determines in its discretion that before close of business in
London on the Quotation Day for calculating interest the Agent receives
notifications from a Lender that the cost to it of obtaining matching
deposits in the Relevant Interbank Market would be in excess of LIBOR, or
if applicable, EURIBOR.
|
10.3
|
Alternative
basis of interest or funding
|
|
(a)
|
If
a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the Borrower shall enter into negotiations (for a
period of not more than thirty (30) days) with a view to agreeing to a
substitute basis for determining the rate of
interest.
|
|
(b)
|
Any
alternative basis agreed pursuant to paragraph (a) above shall, with the
prior consent of the Agent and the Borrower, be binding on all
Parties.
|
|
(c)
|
During
the period of negotiations set forth in paragraph (a) above the rate of
interest shall be either:
|
-36-
|
(i)
|
the
rate of interest on such Loan during the last Interest Period preceding
the Market Disruption Event; or
|
|
(ii)
|
if
no interest rate existed in respect of such Loan prior to the Market
Disruption Event then the rate of interest calculated in accordance with
Clause 10.1 above.
|
|
Following
the determination of the rate of interest in accordance with paragraph (a)
above such rate of interest shall be deemed to be the rate of interest in
respect of such Interest Period, replacing the default rate of interest
stipulated under this paragraph (c) and the amount paid, or overpaid, by
the Borrower to the Agent in respect of the difference between the two
such interest rates, if any, shall forthwith be paid to the Agent or
Borrower as the case may be.
|
11.
|
FEES
|
11.1
|
Commitment
Fee
|
No
Commitment Fee shall be payable by the Borrower hereunder.
11.2
|
Exit
Fee
|
|
(a)
|
Notwithstanding
anything else herein the Borrower shall pay to the Agent an exit fee (the
"Exit Fee") in the
Base Currency in respect of any Collateral released with respect to a Loan
being repaid or pre-paid pursuant to paragraph (a) of Clause 8.2
(Voluntary pre-payment
of Loans) in an amount equal to 0.20 per cent. of the Collateral
Value applicable to such Collateral (the "Exit Fee Related
Collateral"). The Exit Fee contemplated by this Clause
11.2 shall be waived by the Agent in connection with any voluntary or
mandatory pre-payment in whole as a result of a corresponding payment of
amounts of a principal nature arising from the Exit Fee Related Collateral
pursuant to the terms of the Collateral Documents related
thereto.
|
|
(b)
|
In
circumstances where Exit Fee Related Collateral has been released and the
Borrower has duly paid to the Agent the Exit Fee required by paragraph (a)
of this Clause 11.2, the Agent hereby agrees that if a securitisation of
the Exit Fee Related Collateral whose refinancing or proposed refinancing
has given rise to the relevant prepayment or re-payment of such Loan is
not consummated within six (6) calendar months following the date of the
relevant repayment or pre-payment then the Agent will refund to the
Borrower the related Exit Fee on the next succeeding Interest Payment
Date.
|
-37-
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
12.
|
TAX
GROSS UP AND INDEMNITIES
|
12.1
|
Definitions
|
|
(a)
|
In
this Agreement:
|
"Codified Banking Directive"
means EU Council Directive 2000/12/EC of 20 March 2000.
"Irish Taxes Act" means the
Taxes Consolidation Act, 1997 of the Republic of Ireland, as
amended.
"Protected Party" means a
Finance Party, which is or will be subject to any liability, or required to make
any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
"Qualifying Lender" means any
of the following persons:
|
(a)
|
the
holder of a licence for the time being in force granted under section 9 of
the Irish Central Bank Act 1971 or an authorised credit institution under
the terms of EU Council Directive 2000/12/EC of 20 March 2000 which has
duly established a branch in the Republic of Ireland or has made all
necessary notifications to its home state competent authorities required
thereunder in relation to its intention to carry on banking business in
the Republic of Ireland provided in each case it is carrying on a bona
fide banking business in the Republic of Ireland and its Facility Office
is located in the Republic of Ireland;
or
|
(b)
|
|
|
(i)
|
a
person that is resident for the purposes of tax in a member state of the
European Communities (other than the Republic of Ireland) or in a
territory with which the Republic of Ireland has concluded a double
taxation treaty that is in effect (residence for these purposes to be
determined in accordance with the laws of the territory of which the
lender claims to be resident); or
|
|
(ii)
|
a
U.S. corporation, provided the U.S. corporation is incorporated in the
U.S. and subject to tax in the U.S. on its worldwide income;
or
|
|
(iii)
|
a
U.S. LLC, provided the ultimate recipients of the interest are resident in
and under the laws of a country with which the Republic of Ireland has a
double taxation treaty or registered in and under the laws of a member
state of the European Communities (other than the Republic of Ireland) and
the business conducted through the LLC is so structured for market reasons
and not for tax avoidance purposes;
|
-38-
provided
in each case at (i), (ii) or (iii) the Lender is not carrying on a trade or
business in the Republic of Ireland through an agency or branch with which the
interest paid on the Facility is connected; or
|
(c)
|
a
Treaty Lender; or
|
|
(d)
|
a
body corporate which is resident in the Republic of Ireland for the
purposes of Irish tax or which carries on a trade in the Republic of
Ireland through a branch or agency:
|
|
(i)
|
which
advances money under the Facility in the ordinary course of a trade which
includes the lending of money; and
|
|
(ii)
|
in
whose hands any interest payable in respect of the Facility is taken into
account in computing the trading income of the company;
and
|
|
(iii)
|
which
has complied with all of the provisions of Section 246(5)(a) of the Irish
Taxes Act, including making the appropriate notifications thereunder to
the Irish Revenue Commissioners and to the relevant Obligor and has not
ceased to be a company to which Section 246(5)(a) applies;
or
|
|
(e)
|
a
qualifying company within the meaning of Section 110 of the Irish Taxes
Act.
|
"Tax Credit" means a credit
against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means a
deduction or withholding for or on account of Tax from a payment under a Finance
Document.
"Tax Payment" means either the
increase in a payment made by an Obligor to a Finance Party under
Clause 12.2 (Tax
gross-up) or a payment under Clause 12.3 (Tax indemnity).
"Treaty Lender" means a Lender
which:
(i) is
treated as a resident of a Treaty State for the purposes of a
Treaty;
|
(ii)
|
does
not carry on a business in the Republic of Ireland through a permanent
establishment with which the Lender's commitment under the Facility is
effectively connected; and
|
|
(iii)
|
has
completed any procedural formalities reasonably available to it to enable
the relevant payment to be made without a Tax
deduction.
|
"Treaty State" means a
jurisdiction having a double taxation agreement (a "Treaty") with the Republic of
Ireland which makes provision for full exemption from tax imposed by the
Republic of Ireland on interest.
-39-
|
(b)
|
Unless
a contrary indication appears, in this Clause 12 a reference to
"determines" or
"determined" means
a reasonable determination made in the good faith discretion of the person
making the determination.
|
12.2
|
Tax
gross-up
|
|
(a)
|
The
Borrower shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
|
(b)
|
The
Borrower shall promptly upon becoming aware that an Obligor must make a
Tax Deduction (or that there is any change in the rate or the basis of a
Tax Deduction) notify the Agent accordingly. Similarly, a
Lender shall notify the Agent on becoming so aware in respect of a payment
payable to that Lender. If the Agent receives such notification
from a Lender it shall notify each
Obligor.
|
|
(c)
|
If
a Tax Deduction is required by law to be made by an Obligor, the amount of
the payment due from that Obligor shall be increased to an amount which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
(d)
|
An
Obligor is not required to make an increased payment to a Lender under
paragraph (c) above for a Tax Deduction in respect of tax imposed by the
Republic of Ireland from a payment of interest on a Loan, if on the date
on which the payment falls due the payment could have been made to the
relevant Lender without a Tax Deduction if it was a Qualifying Lender, but
on that date that Lender is not or has ceased to be a Qualifying Lender
other than as a result of any change after the date it became a Lender
under this Agreement in (or in the interpretation, administration, or
application of) any law or Treaty, or any published practice or concession
of any relevant taxing authority;
|
|
(e)
|
If
an Obligor is required to make a Tax Deduction, that Obligor shall make
that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law.
|
|
(f)
|
Within
thirty (30) days of making either a Tax Deduction or any payment required
in connection with that Tax Deduction, the Obligor making that Tax
Deduction shall deliver to the Agent for the Finance Party entitled to the
payment evidence reasonably satisfactory to that Finance Party that the
Tax Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing
authority.
|
|
(g)
|
A
Treaty Lender and each Obligor which makes a payment to which that Treaty
Lender is entitled shall complete all procedural formalities necessary for
that Obligor to obtain authorisation to make that payment without a Tax
Deduction.
|
|
(h)
|
The
Initial Lender represents to the Borrower that, on the Effective Date, it
is a Qualifying Lender within the meaning of paragraph (b)(ii) of the
definition of Qualifying Lender.
|
-40-
|
(i)
|
The
Lender shall promptly notify the Borrower and the Agent in the event that
it ceases to be a Qualifying
Lender.
|
12.3
|
Tax
indemnity
|
|
(a)
|
The
Borrower shall (within three (3) Business Days of demand by the Agent) pay
to a Protected Party an amount equal to the loss, liability or cost which
that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party in
respect of a Finance Document.
|
|
(b)
|
Paragraph
(a) above shall not apply:
|
|
(i)
|
with
respect to any Tax assessed on a Finance
Party:
|
|
(A)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes;
or
|
|
(B)
|
under
the law of the jurisdiction in which that Finance Party's Facility Office
is located in respect of amounts received or receivable in that
jurisdiction,
|
if that
Tax is imposed on or calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by that Finance
Party; or
|
(ii)
|
to
the extent a loss, liability or
cost:
|
|
(A)
|
is
compensated for by an increased payment under Clause 12.2 (Tax gross-up);
or
|
|
(B)
|
would
have been compensated for by an increased payment under Clause 12.2
(Tax gross-up)
but was not so compensated solely because the exclusion in paragraph (d)
of Clause 12.2 (Tax
gross-up) applied.
|
|
(c)
|
A
Protected Party making, or intending to make a claim under paragraph (a)
above shall promptly notify the Agent of the event which will give, or has
given, rise to the claim, following which the Agent shall notify the
Borrower.
|
|
(d)
|
A
Protected Party shall, on receiving a payment from an Obligor under this
Clause 12.3, notify the Agent.
|
12.4
|
Tax
Credit
|
If an
Obligor makes a Tax Payment and the relevant Finance Party determines
that:
|
(a)
|
a
Tax Credit is attributable either to an increased payment of which that
Tax Payment forms part, or to that Tax Payment;
and
|
|
(b)
|
that
Finance Party has obtained, utilised and retained that Tax Credit, the
Finance Party shall pay an amount to the Obligor which that Finance Party
determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to
be made by the Obligor.
|
-41-
12.5
|
Stamp
taxes
|
The
Borrower shall pay and, within three (3) Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party incurs in
relation to all stamp duty, registration and other similar Taxes payable in
respect of any Finance Document, except for any such Taxes payable in connection
with any transfer or assignment by any Lender of the rights, benefits or
obligations under this Agreement (including, without limitation the entry into
of a Transfer Certificate).
12.6
|
Value
added tax
|
|
(a)
|
All
amounts set out, or expressed to be payable under a Finance Document by
any Party to a Finance Party which (in whole or in part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of any VAT
which is chargeable on such supply, and accordingly, subject to paragraph
(c) below, if VAT is chargeable on any supply made by any Finance Party to
any Party under a Finance Document and payable to the Finance Party, that
Party shall pay to the Finance Party (in addition to and at the same time
as paying the consideration) an amount equal to the amount of the VAT (and
such Finance Party shall promptly provide an appropriate VAT invoice to
such Party).
|
|
(b)
|
If
VAT is chargeable on any supply made by any Finance Party (the "Supplier") to any other
Finance Party (the "Recipient") under a
Finance Document, and any Party (the "Relevant Party") is
required by the terms of any Finance Document to pay an amount equal to
the consideration for such supply to the Supplier (rather than being
required to reimburse the recipient in respect of that consideration),
such Party shall also pay to the Supplier (in addition to and at the same
time as paying such amount) an amount equal to the amount of such VAT if
payable to the Supplier. The Recipient will promptly pay to the
Relevant Party an amount equal to any credit or repayment from the
relevant tax authority which it reasonably determines relates to the VAT
chargeable on that supply.
|
|
(c)
|
Where
a Finance Document requires any Party to reimburse a Finance Party for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance Party
in respect of the costs or expenses to the extent that the Finance Party
reasonably determines that neither it nor any other member of any group of
which it is a member for VAT purposes is entitled to credit or repayment
from the relevant tax authority in respect of the
VAT.
|
13.
|
INCREASED
COSTS
|
13.1
|
Increased
costs
|
|
(a)
|
Subject
to Clause 13.3 (Exceptions) the
Borrower shall, within five (5) Business Days of a demand by the Agent,
pay for the account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a result of (i)
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation or (ii) compliance with any law
or regulation made after the date of this
Agreement.
|
-42-
|
(b)
|
In
this Agreement "Increased
Costs" means:
|
|
(i)
|
a
reduction in the rate of return from the Facility or on a Finance Party's
(or its Affiliate's) overall
capital;
|
|
(ii)
|
an
additional or increased cost; or
|
|
(iii)
|
a
reduction of any amount due and payable under any Finance
Document,
|
which is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its Loan or
funding or performing its obligations under any Finance Document.
13.2
|
Increased
cost claims
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 13.1
(Increased costs)
shall notify the Agent of the event giving rise to the claim, following
which the Agent shall promptly notify the
Borrower.
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased
Costs.
|
13.3
|
Exceptions
|
|
(a)
|
Clause 13.1
(Increased costs)
does not apply to the extent any Increased Cost
is:
|
|
(i)
|
attributable
to a Tax Deduction required by law to be made by an
Obligor;
|
|
(ii)
|
compensated
for by Clause 12.3 (Tax indemnity) (or would have
been compensated for under Clause 12.3 (Tax indemnity) but was
not so compensated solely because any of the exclusions in paragraph (b)
of Clause 12.3 (Tax
indemnity) applied);
|
|
(iii)
|
compensated
for by the payment of the Mandatory Cost;
|
|
(iv)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates of
any law or regulation; or
|
|
(v)
|
attributable
to the implementation or application or compliance with the "International
Convergence of Capital Measurement and Capital Standards, a Revised
Framework" published by the Basel Committee on Banking Supervision in June
2004 in the form existing on the date of this Agreement ("Basel II") or any other
law or regulation which implements Basel II (whether such implication,
application or compliance is by a government, regulator or Finance
Party).
|
|
(b)
|
In
this Clause 13.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 12.1 (Definitions).
|
-43-
14.
|
OTHER
INDEMNITIES
|
14.1
|
Currency
indemnity
|
|
(a)
|
If
any sum due from an Obligor under the Finance Documents (a "Sum"), or any order,
judgment or award given or made in relation to a Sum, has to be converted
from the currency (the "First Currency") in
which that Sum is payable into another currency (the "Second Currency") for
the purpose of:
|
|
(i)
|
making
or filing a claim or proof against that
Obligor;
|
|
(ii)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,
|
that
Obligor shall as an independent obligation, within three (3) Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any cost,
loss or liability arising out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert that Sum from the
First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
|
(b)
|
Each
Obligor waives any right it may have in any jurisdiction to pay any amount
under the Finance Documents in a currency or currency unit other than that
in which it is expressed to be
payable.
|
15.
|
COSTS
AND EXPENSES
|
15.1
|
Indemnification
and Expenses
|
|
(a)
|
The
Borrower agrees to hold each Finance Party and their Affiliates and their
officers, directors, employees, agents and advisors (each an "Indemnified Party")
harmless from and indemnify any Indemnified Party against all liabilities,
losses, damages, judgments, costs and expenses of any kind which may be
imposed on, incurred by or asserted against such Indemnified Party
(collectively, the "Costs") relating to or
arising out of this Agreement, and any other Finance Document or any
transaction contemplated hereby or thereby, or any amendment, supplement
or modification of, or any waiver or consent under or in respect of, this
Agreement, or any other Finance Document or any transaction contemplated
hereby or thereby, that, in each case, results from anything other than
any Indemnified Party's gross negligence or wilful
misconduct.
|
|
(b)
|
Without
limiting the generality of the foregoing in clause 15.1(a) the
Borrower agrees to hold any Indemnified Party harmless and indemnify such
Indemnified Party against all Costs with respect to all Collateral
relating to or arising out of:
|
|
(i)
|
the
occurrence of a Default;
|
|
(ii)
|
a
failure by an Obligor to pay any amount due under a Finance Document on
its due date, including without limitation, any cost, loss or ability or
liability arising as a result of Clause 25 (Sharing among the Finance
Parties);
|
-44-
|
(iii)
|
funding,
or making arrangements to fund, its participation in a Loan requested by
the Borrower in a Request for Borrowing but not made by reason of the
operation of any one or more of the provisions of this Agreement (other
than by reason of default or negligence by that Finance Party
alone);
|
|
(iv)
|
a
Loan (or part of a Loan) not being prepaid in accordance with a notice of
pre-payment given by the Borrower;
|
|
(v)
|
in
the case of the Agent, (i) investigating any event which it
reasonably believes is a Default (and a Default then exists),
(ii) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately authorised;
and
|
|
(vi)
|
any
violation or alleged violation of any environmental law, rule or
regulation or any consumer credit laws, including without limitation laws
with respect to unfair or deceptive lending practices, and predatory
lending practices, that, in each case, results from anything other than
such Indemnified Party's gross negligence or wilful
misconduct.
|
|
(c)
|
In
any suit, proceeding or action brought by an Indemnified Party in
connection with any Collateral for any sum owing thereunder, or to enforce
any provisions of any Collateral Document or Finance Document, the
Borrower will save, indemnify and hold such Indemnified Party harmless
from and against all expense, loss or damage suffered by reason of any
defence, set-off, counterclaim, recoupment or reduction or liability
whatsoever of the account debtor or obligor thereunder, arising out of any
other agreement, indebtedness or liability at any time owing to or in
favour of such account debtor or obligor or its successors from the
Borrower.
|
|
(d)
|
The
Borrower also agrees to reimburse an Indemnified Party within five (5)
Business Days of when billed by such Indemnified Party for all such
Indemnified Party's costs and expenses incurred in connection with the
enforcement or the preservation of such Indemnified Party's rights under
this Agreement, any other Finance Document or any transaction contemplated
hereby or thereby, including without limitation the reasonable fees and
disbursements of its counsel.
|
15.2
|
Costs
|
The
Borrower agrees to pay within five (5) Business Days of when billed by the Agent
or a Lender all of the out-of-pocket costs and expenses incurred by the Agent or
such Lender in connection with the development, preparation and execution of,
and any amendment, supplement or modification to, this Agreement, and the
Finance Documents or any other document prepared in connection herewith or
therewith. The Borrower agrees to pay within five (5) Business Days
when billed by a Lender and the Agent all of the out-of-pocket costs and
expenses incurred in connection with the consummation and administration of the
transactions contemplated hereby and thereby including without limitation (i)
all the reasonable fees, disbursements and expenses of counsel to such Lender
and the Agent and (ii) all the due diligence, inspection, testing and review
costs and expenses incurred by such Lender and the Agent with respect to
Collateral under this Agreement, including, but not
-45-
limited
to, those costs and expenses incurred by a Lender or the Agent pursuant to
Clause 15.1 (Indemnification and
Expenses), Clause 33.1 (Servicing) and
Clause 33.2 (Periodic Due
Diligence Review) (it being understood and agreed that neither the Agent
nor the Lender has incurred any costs under this Clause 15.2 as of the date
of this Agreement) hereof.
16.
|
MITIGATION
BY THE LENDERS
|
16.1
|
Mitigation
|
|
(a)
|
Each
Finance Party shall, in consultation with the Borrower, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 8.1 (Illegality),
Clause 12 (Tax
gross up and indemnities), Clause 13 (Increased Costs) or
paragraph 3 of Schedule 4 (Mandatory Cost
formulae) including (but not limited to) transferring its rights
and obligations under the Finance Documents to another Affiliate or
Facility Office.
|
|
(b)
|
Paragraph
(a) above does not in any way limit the obligations of any Obligor under
the Finance Documents.
|
16.2
|
Limitation
of liability
|
|
(a)
|
The
Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 16.1 (Mitigation).
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 16.1
(Mitigation) if,
in the opinion of that Finance Party (acting reasonably), to do so might
be prejudicial to it.
|
-46-
SECTION
7
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
17.
|
REPRESENTATIONS
AND WARRANTIES
|
The
Borrower makes the representations and warranties set out in this Clause 17
to each Finance Party on the Effective Date and the Repeating Representations on
each day of this Agreement from the Effective Date unto and including the
Termination Date.
17.1
|
Status
and Name
|
|
(a)
|
The
Borrower is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of
incorporation.
|
|
(b)
|
The
Borrower has the power to own its assets and carry on its business as it
is being conducted.
|
|
(c)
|
On
the Effective Date the exact legal name of the Borrower is AHR Capital MS
Limited.
|
|
(d)
|
The
Borrower is a wholly owned Subsidiary of the Guarantor and has no
Subsidiaries.
|
|
(e)
|
The
Borrower, as of the date hereof:
|
|
(i)
|
maintains
its registered head office and head office in the Republic of
Ireland;
|
|
(ii)
|
holds
all meetings of its board of directors in the Republic of
Ireland;
|
|
(iii)
|
has
not opened any office or branch outside of the Republic of Ireland;
and
|
|
(iv)
|
has
not knowingly done anything (except to the extent that entering into the
Finance Documents and the performance of their terms cause it to be so
resident) which may result in the Borrower creating an establishment in
another jurisdiction other than the Republic of
Ireland.
|
|
(f)
|
(based
on the representations and warranties contained in sub-claues 17.1(e)(i)
to 17.1(e)(iv) inclusive) The Borrower believes that its "centre of main
interests" for the purposes of Council Regulation (EC) No. 1346/2000 of 20
May 2000 is in the Republic of Ireland and that it has no
establishment (for the purposes of such Regulation) other than
in the Republic of Ireland.
|
17.2
|
Binding
obligations
|
The
obligations expressed to be assumed by the Borrower in each Finance Document
are, subject to the Reservations, legal, valid, binding and enforceable
obligations.
17.3
|
Non-conflict
with other obligations
|
The entry
into and performance by the Borrower of, and the transactions contemplated by,
the Finance Documents do not and will not conflict with:
|
(a)
|
any
law or regulation applicable to it;
|
|
(b)
|
its
constitutional documents; or
|
-47-
|
(c)
|
any
agreement or instrument binding upon it or any of its
assets.
|
17.4
|
Power
and authority
|
The
Borrower has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of, the
Finance Documents to which it is a party and the transactions contemplated by
those Finance Documents. No authorisations, approvals or consents of,
and no filings or registrations with, any Governmental Authority
or any securities exchange are necessary for the execution, delivery or
performance by the Borrower of the Finance Documents or for the legality,
validity, or subject to the Reservations, the enforceability thereof, except for
filings, recordings and registrations in respect of the security created
pursuant to the Debenture and any other Finance Document.
17.5
|
Validity
and admissibility in evidence
|
All
authorisations required:
|
(a)
|
to
enable the Borrower lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a party;
and
|
|
(b)
|
to
make the Finance Documents to which the Borrower is a party admissible in
evidence in its jurisdiction of
incorporation,
|
have been
obtained or effected and are in full force and effect.
17.6
|
Governing
law and enforcement
|
|
(a)
|
The
relevant choice of English law as the governing law of the Finance
Documents to which the Borrower is a party will be recognised and enforced
in its jurisdiction of
incorporation.
|
|
(b)
|
Subject
to the Reservations, any judgment obtained in England in relation to a
Finance Document will be recognised and enforced in the Borrower's
respective jurisdiction of
incorporation.
|
17.7
|
Deduction
of Tax
|
The
Borrower is not required to make any deduction for or on account of Tax from any
payment it may make under any Finance Document.
17.8
|
No
filing or stamp taxes
|
Under the
law of the jurisdiction of the Borrower's incorporation it is not necessary that
the Finance Documents be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration or similar tax be
paid on or in relation to the Finance Documents or the transactions contemplated
by the Finance Documents except for (a) the delivery to the Companies
Registration Office in the Republic of Ireland within twenty-one (21) days of
their creation of the particulars of the security interests created by the
Borrower pursuant to the Debenture and each other security document entered into
by the Borrower, and (b) the stamping of the original of the Debenture with
stamp duty of €630 and each counterpart thereof and each collateral security
document with €12.50, within thirty (30) days of its execution.
-48-
17.9
|
No
default
|
|
(a)
|
No
Event of Default and on the date of this Agreement and on any Funding Date
no Default is continuing or might reasonably be expected to result from
the making of any Loan.
|
|
(b)
|
No
other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on the Borrower
or any of its Subsidiaries or to which its (or any of its Subsidiaries')
assets are subject which might have a Material Adverse
Effect.
|
17.10
|
Pari
passu ranking
|
The
Borrower's payment obligations under the Finance Documents rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors, except for obligations
preferred by law applying to companies generally.
17.11
|
Litigation
|
There are
no actions, suits, arbitrations, investigations (including, without limitation,
any of the foregoing which are pending or, to the best of its knowledge,
threatened) or other legal or arbitrable proceedings affecting the Borrower or
affecting any of the Collateral of any of them before any Governmental Authority
that: (i) questions or challenges the validity or enforceability of any the
Finance Documents or any action to be taken in connection with the transactions
contemplated hereby; (ii) makes a claim or claims in an aggregate amount greater
than $5,000,000; (iii) which, individually or in the aggregate, if adversely
determined, could reasonably be likely to have a Material Adverse Effect; or
(iv) requires filing with the Securities and Exchange Commission in accordance
with the Securities Exchange Act of 1934 (US) (the "1934 Act") or any rules
thereunder which filing has not been made.
17.12
|
Taxation
|
|
(a)
|
The
Borrower has duly and punctually paid and discharged all Taxes imposed
upon it or its assets within the time period allowed without incurring
penalties (save to the extent that (i) payment is being contested in good
faith, (ii) it has maintained adequate reserves for those Taxes and (iii)
payment can be lawfully withheld).
|
|
(b)
|
The
Borrower is not materially overdue in the filing of any Tax
returns.
|
|
(c)
|
No
claims are being or are reasonably likely to be asserted against it with
respect to Taxes.
|
17.13
|
Collateral;
Collateral Security
|
|
(a)
|
The
Borrower has not assigned, pledged, or otherwise conveyed or encumbered
the Eligible Collateral to any other person, and immediately prior to the
granting of security over the Eligible Collateral to the Security Trustee,
the Borrower was the sole owner of the Eligible Collateral and had good
and marketable title thereto, free and clear of all security interests and
other Encumbrances, in each case except for such security interests that
were to be released simultaneously with the security interests which are
to be granted in favour of the Security Trustee to secure the Secured
Obligations. No Eligible Collateral granted by way of security to the
Security Trustee
|
-49-
under the
Debenture or any other Finance Document was acquired (by purchase or otherwise)
by the Borrower from one of its Affiliates.
|
(b)
|
The
provisions of the Debenture and the other Finance Documents are effective
to create in favour of the Security Trustee a valid security interest in
all right, title and interest of the Borrower in, to and under the
Eligible Collateral.
|
17.14
|
Jurisdiction
of Organisation
|
On the
Effective Date the Borrower's jurisdiction of incorporation and location of its
registered office is the Republic of Ireland.
17.15
|
Location
of Books and Records
|
The
location where the Borrower keeps its books and records, including all computer
tapes and records relating to the Collateral, is its registered
office.
17.16
|
True
and Complete Disclosure
|
The
information, reports, financial statements, exhibits and schedules furnished in
writing by or on behalf of the Borrower to the Agent in connection with the
negotiation, preparation or delivery of this Agreement and the other Finance
Documents or included herein or therein or delivered pursuant hereto or thereto,
when taken as a whole, do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof
by or on behalf of the Borrower to the Agent in connection with this Agreement
and the other Finance Documents and the transactions contemplated hereby and
thereby will be true, complete and accurate in every material respect, or (in
the case of projections) based on reasonable estimates, on the date as of which
such information is stated or certified. There is no fact known to a
Responsible Officer of the Borrower, after due inquiry, that could reasonably be
expected to have a Material Adverse Effect that has not been disclosed herein,
in the other Finance Documents or in a report, financial statement, exhibit,
schedule, disclosure letter or other writing furnished to the Agent for use in
connection with the transactions contemplated hereby or thereby.
17.17
|
Defined
Benefit Scheme
|
The
Borrower does not maintain a pension scheme in respect of which there is an
unfunded deficit.
17.18
|
Business
Affairs
|
|
(a)
|
The
Borrower's business and affairs have at all times been, and will at all
times be, managed, controlled and conducted in its own name as an
identifiable business, separate, independent and identifiable from the
business of the other Obligor or any other
person;
|
|
(b)
|
The
Borrower's records, books, accounts and minutes have at all times been,
and will continue at all future times to be, maintained separate and
distinct from those of the other Obligor or any other
person;
|
|
(c)
|
The
Borrower's assets and liabilities and the funds have at all times been,
and will continue at all future times to be, kept separate and distinct
from the other Obligor or
|
-50-
any other
person; and it has received, deposited, withdrawn, paid and disbursed, and will
at all future times receive, deposit, withdraw, pay and disburse, all monies,
funds and receivables in the ordinary course of its business and in a manner
separate and distinct from the other Obligor or any other person;
|
(d)
|
The
Borrower has not paid and will not pay, and is not and will not become
liable for, any debt of the other Obligor or any other person;
and
|
|
(e)
|
That
all dealings and transactions of the Borrower with all other persons have
at all times been and will continue at all times to be at
arms-length.
|
17.19
|
Borrower
Irish Tax Requirements
|
The
Borrower satisfies the Borrower Irish Tax Requirements.
17.20
|
Borrower
Documents
|
Other
than the Finance Documents, the Subordinated Loan Agreement (and the hedging
arrangements entered into pursuant to the Subordinated Loan Agreement the
Corporate Services Agreement and the Investment Management Agreement, the
Borrower has not entered into any other agreements or instruments save for such
agreements or instruments as may have been agreed to in advance of their entry
into by the Borrower by the Security Trustee.
18.
|
INFORMATION
UNDERTAKINGS
|
The
undertakings in this Clause 18 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance Documents
or any Loan is in force.
18.1
|
Financial
statements
|
The
Borrower shall supply to the Agent in sufficient copies for all the
Lenders:
|
(a)
|
as
soon as available and in any event within forty-five (45) days after the
end of each of the first three quarterly fiscal periods of each fiscal
year of the Borrower, the unaudited balance sheet of the Borrower as at
the end of such period and the related unaudited statement of income and
retained earnings, statement of cash flows and statement of equity for the
Borrower for such period and the portion of the fiscal year through the
end of such period, setting forth in each case in comparative form the
figures for the previous year, accompanied by a certificate of a
Responsible Officer of the Borrower, which certificate shall state that
said financial statements fairly present the financial condition and
results of operations of the Borrower in accordance with GAAP,
consistently applied, as at the end of, and for, such period (subject to
normal year-end audit adjustments);
|
|
(b)
|
as
soon as available and in any event within ninety (90) days after the end
of each fiscal year of the Borrower, the balance sheet of the Borrower as
at the end of such fiscal year and the related statement of income and
retained earnings, consolidated statement of cash flows and statement of
equity for the Borrower for such year, setting forth in each case in
comparative form the figures for the previous year, accompanied by an
opinion thereon of independent certified public accountants
of
|
-51-
recognised
national standing, which opinion shall not be qualified as to scope of audit or
going concern and shall state that said financial statements fairly present the
financial condition and results of operations of the Borrower as at the end of,
and for, such fiscal year in accordance with GAAP, and a certificate of such
accountants stating that, in making the examination necessary for their opinion,
they obtained no knowledge, except as specifically stated, of any Default or
Event of Default;
|
(c)
|
within
fifteen (15) Business Days after the Agent’s request, such other
information regarding the operation of or the Collateral, or the financial
condition, operations, or business of the Borrower as may be reasonably
requested by the Agent, including all business plans prepared by or for
the Borrower; and
|
|
(d)
|
upon
the Agent’s request, a copy of any financial or other report the Borrower
shall receive from any Collateral Obligor
with respect to an item of Collateral within fifteen (15) days after the
Borrower’s receipt thereof.
|
18.2
|
Information:
miscellaneous
|
The
Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if
the Agent so requests):
|
(a)
|
Promptly,
and in any event within ten (10) ten days after service of process on any
of the following, give to the Agent notice of all litigation, actions,
suits, arbitrations, investigations (including, without limitation, any of
the foregoing which are pending or, to Borrower's knowledge threatened) or
other legal or arbitration proceedings affecting the Borrower or affecting
any of the Property of the Borrower before any Governmental Authority that
(i) questions or challenges the validity or enforceability of any of the
Finance Documents or any action to be taken in connection with the
transactions contemplated hereby; (ii) makes a claim or claims in an
aggregate amount greater than $5,000,000; (iii) which, individually or in
the aggregate, if adversely determined, could be reasonably likely to have
a Material Adverse Effect; or (iv) requires filing with the Securities and
Exchange Commission in accordance with the 1934 Act and any rules
thereunder which filing has not been made;
and
|
|
(b)
|
promptly,
such further information regarding the financial condition, business and
operations of the Borrower as any Finance Party (through the Agent) may
reasonably request.
|
18.3
|
Notification
of default
|
|
(a)
|
The
Borrower shall notify the Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its
occurrence.
|
|
(b)
|
Promptly
upon a request by the Agent (not more than twice annually commencing on
the date of this Agreement), the Borrower shall supply to the Agent a
certificate signed by a Responsible Officer certifying that no Default is
continuing (or if a Default is continuing, specifying the Default and the
steps, if any, being taken to remedy
it).
|
-52-
19.
|
GENERAL
UNDERTAKINGS
|
The
undertakings in this Clause 19 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents.
19.1
|
Authorisations
|
The
Borrower shall promptly:
|
(a)
|
obtain,
comply with and do all that is necessary to maintain in full force and
effect; and
|
|
(b)
|
supply
certified copies to the Agent of,
|
any
Authorisation required under any law or regulation of its jurisdiction of
incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or admissibility
in evidence in its jurisdiction of incorporation of any Finance
Document.
19.2
|
Compliance
with laws
|
The
Borrower shall comply in all respects with all laws to which it may be subject,
if failure so to comply would have a Material Adverse Effect on its ability to
perform its obligations under the Finance Documents.
19.3
|
Negative
pledge
|
|
(a)
|
Other
than security interests permitted or contemplated pursuant to the terms
hereof the Borrower shall not create or permit to subsist any security
interest over any of its assets.
|
19.4
|
Disposals
|
The
Borrower shall not, without the prior written consent of the Agent, enter into a
single transaction or a series of transactions (whether related or not) and
whether voluntary or involuntary to sell, lease, transfer, exchanged or
otherwise dispose of any of or substantially all of its assets or enter into any
agreements having a similar effect and, in particular, and for the avoidance of
doubt, it shall not, following acquisition of the Charlotte Asset, without the
prior written consent of the Agent dispose of all or any part of its interest in
the Charlotte Asset.
19.5
|
Merger
|
The
Borrower shall not enter into any amalgamation, demerger, merger or corporate
reconstruction.
19.6
|
Change
of Business
|
The
Borrower shall make no substantial change to the general nature of its business
from that carried on at the date of this Agreement.
19.7
|
Taxation
|
The
Borrower shall duly and punctually pay and discharge all Taxes imposed upon it
or its assets within the time period allowed without incurring penalties (except
to the extent (i) that such payment is being contested in good faith, (ii)
adequate reserves are being maintained for those Taxes and (iii) where such
payment can be lawfully withheld).
-53-
19.8
|
Loans
and Guarantees
|
The
Borrower shall not, save as permitted under the Finance Documents, make any
loans, grant any credit or give any guarantee or indemnity (except as required
under any of the Finance Documents) to or for the benefit of any person or
otherwise voluntarily assume any liability, whether actual or contingent, in
respect of any obligation of any person.
19.9
|
Syndication
|
At the
cost of the Lenders, the Borrower shall provide reasonable assistance in the
preparation of the Information Memorandum and the primary syndication of the
Facility (including, without limitation, by making senior management available
for the purpose of making presentations to, or meeting, potential lending
institutions) and will comply with all reasonable requests for information from
potential syndicate members prior to completion of syndication.
19.10
|
Existence,
Etc.
|
The
Borrower will:
|
(a)
|
comply
with the requirements of all applicable laws, rules, regulations and
orders of Governmental Authorities (including, without limitation, all
environmental laws, all laws with respect to unfair and deceptive lending
practices and predatory lending practices) if failure to comply with such
requirements would be reasonably likely (either individually or in the
aggregate) to have a Material Adverse
Effect;
|
|
(b)
|
keep
adequate records and books of account, in which complete entries will be
made in accordance with GAAP consistently
applied;
|
|
(c)
|
not
move its registered head office from the address referred to in
Clause 17.4 (Jurisdiction of
Organisation) or change its jurisdiction of organisation from the
jurisdiction referred to in Clause 17.4 (Jurisdiction of
Organisation);
|
|
(d)
|
permit
representatives of the Agent, during normal business hours, to examine,
copy and make extracts from its books and records, to inspect any of its
Property or assets, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by the Agent; and
|
|
(e)
|
not
amend or permit the amendment of its memorandum and articles of
association without the prior written consent of the Security Trustee and
thereafter shall provide the Agent and the Security Trustee with copies of
all amendments to the memorandum and articles of association or other
organisational, constitutional or governing documents of the Borrower
within five (5) Business Days of the date of the subject
amendment.
|
19.11
|
No
establishment
|
The
Borrower shall not knowingly establish an "establishment" as that term is used
in Article 2(h) of the EU Insolvency Regulation outside of the Republic of
Ireland, except to the extent that entering into the Finance Documents and the
performance of their terms cause it to be resident and which may result in the
Borrower creating an "establishment" as that term is used in Article 2(h) of the
EU Insolvency Regulation.
-54-
19.12
|
Notices
|
The
Borrower shall give notice to the Agent and the Security Trustee:
|
(a)
|
promptly
upon receipt of notice or knowledge of the occurrence of any Default or
Event of Default;
|
|
(b)
|
with
respect to any Eligible Collateral granted by way of security to the
Security Trustee under the Debenture or the other Finance Documents
hereunder, immediately upon receipt of any principal pre-payment (in full
or partial) of such Eligible Collateral including, but not limited to, the
receipt of any condemnation and casualty
proceeds;
|
|
(c)
|
with
respect to any Eligible Collateral granted by way of security to the
Security Trustee under the Debenture or the other Finance Documents,
immediately upon receipt of notice or knowledge that the underlying
Encumbered Property has been materially damaged by waste, fire, earthquake
or earth movement, windstorm, flood, tornado or other casualty, or
otherwise damaged so as to affect adversely the Asset Value of such
Eligible Collateral; and
|
|
(d)
|
promptly
upon receipt of notice or knowledge of (i) any default related to any
Collateral; (ii) any security interest (other than the security interests
created by the Debenture or by the other Finance Documents) on, or claim
asserted against, any of the Collateral; or (iii) any event or change in
circumstances which could reasonably be expected to have a Material
Adverse Effect.
|
|
(e)
|
promptly
upon any material change in the market value of any or all of the
Borrower’s assets;
|
Each
notice pursuant to this Clause shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken or proposes
to take with respect thereto.
19.13
|
Collateral
|
The
Borrower shall not acquire any Collateral or other assets save in the manner
contemplated by this Agreement and with the prior written consent of the Agent,
and, in particular and for the avoidance of doubt, following acquisition by the
Borrower of the Xxxxxxxxx Xxxxx, shall not acquire any further interest in the
Charlotte Credit Facility whether by operation of the provisions of any
intercreditor deed related to the Charlotte Asset or otherwise without the prior
written consent of the Agent. Upon acquiring any such Collateral, the Borrower
shall not amend or permit the amendment of any documents or agreements
pertaining to such Collateral without the prior written consent of the Agent and
the Security Trustee.
19.14
|
Reports
|
The
Borrower shall provide the Agent with a quarterly report, which report shall
include, among other items, a summary of the Borrower’s delinquency and loss
experience with respect to the Collateral, plus any such additional
reports relating to the Property underlying the Collateral as the Borrower may
have received or is otherwise entitled to receive from the Servicer or the
Collateral Obligor and as reasonably requested by the Agent.
-55-
19.15
|
Limitation
on security
|
The
Borrower will defend the Collateral against, and will take such other action as
is necessary to remove, any security, security interest or claim on or to the
Collateral, other than the security interests created under this Agreement, and
the Borrower will defend the right, title and interest of the Security Trustee
in and to any of the Collateral against the claims and demands of all persons
whomsoever.
19.16
|
Lender
Exposure
|
The
Lenders' Net Aggregate Exposure shall not be greater than 80% and the Lenders'
Net Exposure shall not be greater than 85%.
19.17
|
Servicer;
Servicing Tape
|
The
Borrower shall provide to the Agent promptly within ten (10) Business Days after
the end of each month a computer readable file in the form reasonably requested
by the Agent from time to time, on a loan-by-loan basis and in the aggregate,
with respect to the Collateral serviced hereunder by the Borrower or any
Servicer. The Borrower shall not cause the Collateral to be serviced
by any servicer other than a servicer mutually agreed to by the Agent and the
Borrower.
19.18
|
No
Adverse Selection
|
The
Borrower shall not select the Collateral in a manner so as to adversely affect
the Lenders' interests.
19.19
|
Remittance
of Pre-payments
|
The
Borrower shall remit or cause to be remitted, with sufficient detail to enable
the Lender to appropriately identify the Eligible Collateral to which any amount
remitted applies, to the Agent on each Business Day all principal pre-payments
(whether full or partial) that the Borrower or the Servicer has received during
the previous Business Day, in an amount equal to the sum of the Asset-Specific
Loan Balances being prepaid.
19.20
|
Specific
Covenants of the Borrower
|
During
the term of this Agreement and for so long as any amount is outstanding under
any Finance Documents, the Borrower, unless permitted by the Finance Documents
shall not:
|
(a)
|
pay
dividends or make other distributions to its members out of profits
available for distribution and then only in the manner permitted by the
Finance Documents, its memorandum and articles of association and by
applicable laws;
|
|
(b)
|
incur
or permit to subsist any Indebtedness whatsoever other than the
Indebtedness of the Borrower pursuant to the Subordinated Loan Agreement
and, with the prior written consent of the Agent, to hedge its exposure
under the Subordinated Loan Agreement with a third
party;
|
|
(c)
|
make
any loans, grant any credit or give any guarantee or indemnity to or for
the benefit of any person or otherwise voluntarily assume any liability,
whether actual or contingent, in respect of any obligation of any other
person;
|
|
(d)
|
be
a member of a VAT Group;
|
-56-
|
(e)
|
surrender
any losses to any other company;
|
|
(f)
|
have
any employees or premises or have any subsidiary undertaking within the
meaning of Regulation 4 of the European Communities (Companies Group
Accounts) Regulation 1992, as amended, of the Republic of Ireland or
become a director of any company;
|
|
(g)
|
have
an interest in any bank account other than the Borrower Bank Accounts
unless such account or interest is permitted or contemplated by the
Finance Documents;
|
|
(h)
|
permit
the validity or effectiveness of any of the Security Trustee's security to
be impaired or to be amended, hypothecated, subordinated, terminated or
discharged;
|
|
(i)
|
acquire
any interest in real property.
|
|
(j)
|
engage
in any business or agreements other
than:
|
|
(i)
|
acquiring,
holding, managing and disposing of the assets of the Borrower comprised in
the Eligible Collateral;
|
|
(ii)
|
entering
into, exercising its rights and performing its obligations under or
enforcing its rights under the Finance Documents and the other agreements
ancillary thereto or contemplated thereby;
or
|
|
(iii)
|
performing
any act incidental to or necessary in connection with any of the
above;
|
|
(k)
|
not
permit or consent to any of the following
occurring:
|
|
(i)
|
its
books and records being maintained with or co-mingled with those of any
other person or entity;
|
|
(ii)
|
its
bank accounts and the debts represented thereby being co-mingled with
those of any other person or
entity;
|
|
(iii)
|
its
assets or revenues being co-mingled with those of any other person or
entity; or
|
|
(iv)
|
its
business being conducted other than in its own
name.
|
|
(l)
|
procure
that, with respect to itself:
|
|
(i)
|
separate
financial statements in relation to its financial affairs are
maintained;
|
|
(ii)
|
all
corporate formalities with respect to its affairs are
observed;
|
|
(iii)
|
separate
stationery, invoices and cheques are
used;
|
|
(iv)
|
it
always holds itself out as a separate entity;
and
|
|
(v)
|
any
known misunderstandings regarding its separate identity are corrected as
soon as possible.
|
-57-
19.21
|
Borrower
Irish Tax Requirements
|
The
Borrower shall fulfil the Borrower Irish Tax Requirements.
19.22
|
Borrower
Bank Accounts
|
During
the term of this Agreement and for so long as any amount is outstanding under
any Finance Documents, the Borrower shall use best endeavours to ensure that all
Principal Receipts and Revenue Receipts are paid directly into the relevant
Borrower Bank Account.
20.
|
EVENTS
OF DEFAULT
|
Each of
the events or circumstances set out in this Clause 20 is an Event of
Default.
20.1
|
Non-payment
|
|
(a)
|
The
Borrower shall default in the payment of any principal of or interest on
any Loan when due (whether at stated maturity, upon acceleration or at
mandatory or optional pre-payment or repayment);
and
|
|
(b)
|
The
Borrower shall default in the payment of any other amount payable by it
hereunder or under any Finance Document or Finance Document after
notification by the Agent of such default, and such default shall have
continued unremedied for five (5) Business
Days.
|
20.2
|
Breach
under Guarantee
|
Any of
the covenants and/or other obligations of the Guarantor contained in the
Guarantee has been breached.
20.3
|
Other
obligations
|
An
Obligor does not comply with any provision of the Finance Documents (other than
those referred to in Clause 20.1 (Non-payment) and
Clause 20.2 (Breach under
Guarantee); or shall fail to observe or perform any other covenant or
agreement contained in this Agreement or any other Finance Documents and such
failure to observe or perform shall continue for a period of thirty (30) days
(following notice of such default) unless a shorter cure period is established
in any Finance Document, in which event the shorter cure period shall be
applicable; or shall fail to fulfil the Conditions Subsequent to the
satisfaction of the Agent by 5:00 p.m. (New York time) on the Cut Off Date (or,
in the case the Condition Subsequent to provide evidence that all Borrower Bank
Accounts are subject to the Bank Agreement set out at paragraph (l) of Part B of
Part VI of Schedule 2 (Conditions Precedent), by no
later than fifteen (15) days after the Cut Off Date).
20.4
|
Misrepresentation
|
Any
representation or statement made or deemed to be made by an Obligor in any
Finance Documents or any other document delivered by or on behalf of any Obligor
under or in connection with any Finance Document (including in particular, and
notwithstanding the following provisions in this Clause 20.4, the representation
and statement made in Schedule 11, under the heading "Anthracite Notes' Representations
and Warranties" numbered 12) is or proves to have been incorrect or
misleading in any material respect when made or deemed to be made or furnished
(other than, save as provided above, the representations and warranties set
forth in Schedule 11 (Representations and Warranties Re:
Eligible Collateral), which shall
-58-
be
considered solely for the purpose of determining the Asset Value of the
Collateral; unless (i) the Borrower shall have made any such representations and
warranties with knowledge that they were materially false or misleading at the
same time; or (ii) any such representations and warranties have been determined
by the Agent in its sole discretion to be materially false or misleading on a
regular basis).
20.5
|
Cross
default
|
|
(a)
|
Any
Indebtedness of any Obligor is not paid when due nor within any originally
applicable grace period.
|
|
(b)
|
Any
Indebtedness of any Obligor is declared to be or otherwise becomes due and
payable prior to its specified maturity as a result of an event of default
(however described).
|
|
(c)
|
Any
commitment for any Indebtedness of any Obligor is cancelled or suspended
by a creditor of such Obligor as a result of an event of default (however
described).
|
|
(d)
|
Notwithstanding
anything contained in this Clause 20.5, other than Indebtedness that is MS
Indebtedness, no Event of Default will occur under this Clause 20.5
if the aggregate amount of such Indebtedness falling within paragraphs (a)
to (c) above is less than $5,000,000 (or its equivalent in any other
currency or currencies).
|
20.6
|
Insolvency
|
|
(a)
|
An
Obligor is unable or is deemed to be unable or admits inability to pay its
debts as they fall due or suspends making payments on any of its
debts.
|
|
(b)
|
The
value of the assets of any Obligor is less than its liabilities (taking
into account contingent and prospective
liabilities).
|
|
(c)
|
A
moratorium is declared in respect of any indebtedness of any
Obligor.
|
|
(d)
|
The
Borrower is unable to pay its debts within the meaning of section 214 of
the Companies Act, 1963, as amended, of the Republic of
Ireland.
|
|
(e)
|
Any
corporate action is taken by the Borrower for the suspension of its debts
generally (or any class of them) or for a declaration of a moratorium of
its debt (or any class of it).
|
20.7
|
Insolvency
proceedings
|
Any
corporate action, legal proceedings or other such procedure or step is taken in
relation to:
|
(a)
|
the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration, Examinership or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of any Obligor
other than a solvent liquidation or reorganisation of any
Obligor;
|
|
(b)
|
a
composition, compromise, assignment or arrangement with any creditor of
any Obligor;
|
-59-
|
(c)
|
the
appointment of a liquidator, receiver, administrative receiver,
administrator, Examiner, compulsory manager, trustee in bankruptcy or
other similar officer in respect of any Obligor or any of its assets;
or
|
|
(d)
|
enforcement
of any security interest over any assets of any
Obligor,
|
or any
analogous procedure or step is taken in any jurisdiction.
20.8
|
Creditors'
process
|
Any
expropriation, attachment, sequestration, distress or execution affects any
asset or assets and is not discharged within five (5) days in respect of the
Borrower and twenty-one (21) days in respect of the Guarantor.
20.9
|
Unlawfulness
|
It is or
becomes unlawful for an Obligor to perform any of its obligations under the
Finance Documents.
20.10
|
Repudiation
|
An
Obligor repudiates a Finance Document or evidences an intention to repudiate a
Finance Document.
20.11
|
Borrowing
Base Deficiency
|
A
Borrowing Base Deficiency shall have occurred and the Borrower shall have failed
to timely cure the same in accordance with the provisions of Clause 8.3
(Mandatory
Pre-Payment).
If the Agent determines that there is a Borrowing Base Deficiency
at any time after 5:00 p.m. (New York time) on the Cut Off Date, such event
shall constitute an Event of Default and the Agent and the Majority Lenders may
exercise their rights and remedies under the Finance Documents with respect
thereto.
20.12
|
Other
Events of Default
|
Each of
the following events shall constitute an Event of Default
hereunder:
|
(a)
|
final
judgment or judgments for the payment of money in excess of $5,000,000 (or
its equivalent in the currency in which such judgment is rendered) in the
aggregate shall be rendered against any Obligor by one or more courts,
administrative tribunals or other bodies having jurisdiction and the same
shall not be satisfied, discharged (or provision shall not be made for
such discharge) or bonded, or a stay of execution thereof shall not be
procured, within thirty (30) days from the date of entry thereof, and such
Obligor shall not, within said period of thirty (30) days, or such longer
period during which execution of the same shall have been stayed or
bonded, appeal there from and cause the execution thereof to be stayed
during such appeal;
|
|
(b)
|
any
Finance Document shall for whatever reason be terminated or cease to be in
full force and effect, or the enforceability thereof shall be contested by
any Obligor unless replacements are entered into by the Finance Parties
prior to such events;
|
|
(c)
|
the
Borrower shall grant, or suffer to exist, any security on any Collateral
except the security contemplated hereby; or the security contemplated
hereby shall cease to be first priority perfected security on the
Collateral in favour of the Security Trustee or shall be security in
favour of any person other than the Security
Trustee;
|
|
(d)
|
the
discovery by the Agent of a condition or event which existed at or prior
to the execution hereof and which the Agent, in its sole discretion,
determines materially
|
-60-
and
adversely effects: (i) the condition (financial or otherwise) of any
Obligor; or (ii) the ability of either any Obligor or the Finance Parties to
fulfil its respective obligations under the Finance Documents.
|
(e)
|
any
materially adverse change in the Property, business, financial condition
or prospects of any of the Obligors shall occur, as determined by the
Agent in its sole discretion, or any other condition shall exist which, in
the Agent's sole discretion, constitutes a material impairment of any
Obligor's ability to perform its obligations under any of the Finance
Documents.
|
20.13
|
Acceleration
|
On and at
any time after the occurrence of an Event of Default, which is continuing the
Agent may, and shall if so directed by the Majority Lenders, by notice to the
Borrower:
|
(a)
|
cancel
the Total Maximum Credit;
|
|
(b)
|
declare
that all or part of the Loans, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon they shall become immediately due
and payable; and/or
|
|
(c)
|
declare
that all or part of the Loans be payable on demand, whereupon they shall
immediately become payable on demand by the Agent on the instructions of
the Majority Lenders.
|
20.14
|
Other
Remedies on Event of Default
|
|
(a)
|
On
and any time after an Event of Default which is continuing, the Security
Trustee may, and shall if so directed by the Majority Lenders, by notice
to the Custodian obtain physical possession of the Servicing Records and
other files of the Custodian relating to the Collateral and all documents
relating to the Collateral which are then or may thereafter come in to the
possession of the Agent or any third party acting for the
Borrower.
|
|
(b)
|
If
an Event of Default shall occur and be continuing, the Agent may, at its
option, enter into one or more Interest Rate Protection Agreements
covering all or a portion of the Eligible Collateral granted by way of
security to the Security Trustee under the Debenture or the other Finance
Documents, and the Borrower shall be responsible for all damages,
judgments, costs and expenses of any kind which may be imposed on,
incurred by or asserted against the Agent relating to or arising out of
such Interest Rate Protection Agreements, including without limitation any
losses resulting from such Interest Rate Protection
Agreements.
|
20.15
|
Proceeds
|
If an
Event of Default shall occur and be continuing, (a) all proceeds of Collateral
received by the Borrower consisting of cash, cheques and other near-cash items
shall be held by the Borrower on trust for the Security Trustee, segregated from
other funds of the Borrower, and shall forthwith upon receipt by the Borrower be
turned over to the Security Trustee or as the Security Trustee may otherwise
direct in the exact form received by the Borrower (duly endorsed by the Borrower
to the Agent, if required). For purposes hereof, proceeds shall
-61-
include,
but not be limited to, all principal and interest payments, all prepayments and
payoffs, insurance claims, condemnation awards, sale proceeds, real estate owned
rents and any other income and all other amounts received with respect to the
Collateral.
20.16
|
No
Duty of the Security Trustee
|
The
powers conferred on the Security Trustee hereunder are solely to protect the
Security Trustee’s interests in the Collateral and shall not impose any duty
upon it to exercise any such powers. The Security Trustee shall be
accountable only for amounts that it actually receives as a result of the
exercise of such powers, and neither it nor any of its officers, directors,
employees or agents shall be responsible to the Borrower for any act or failure
to act hereunder, except for its or their own gross negligence or wilful
misconduct.
-62-
SECTION
8
CHANGES
TO PARTIES
21.
|
CHANGES
TO THE LENDERS
|
21.1
|
Assignments
and transfers by the Lender
|
A Lender
(the "Existing Lender")
may not, except as noted in paragraphs (a) and (b) of this Clause 21.1, and
subject to the consent of the Borrower, assign any of its rights; or transfer by
novation any of its rights and obligations under this Agreement to any other
person (the "New
Lender"). Notwithstanding the aforementioned a Lender may
without the consent of the Borrower:
|
(a)
|
sell
participations to one or more persons in or to all or a portion of its
rights and obligations under this Agreement provided, however, that (i)
the Lender's obligations under this Agreement shall remain unchanged; (ii)
the Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations; and (iii) Borrower shall continue to
deal solely and directly with the Agent in connection with lender's rights
and obligations under and in respect of this Agreement and Finance
Documents. Each participant or New Lender shall be entitled to the
additional compensation and other rights and protections afforded the
Lender under this Agreement to the same extent as the Lender would have
been entitled to receive them with respect to the participation sold to
such participant; and
|
|
(b)
|
assign,
transfer or otherwise convey its rights under this Agreement to an
Affiliate (meeting the definition of Institutional Investor and
Institutional Owner), an Institutional Owner or Institutional Investor any
of which is in the business of making loans similar to the Loans, provided that such
Affiliate, Institutional Investor or Institutional Owner shall execute and
deliver the document required under Clause 21.2 (Conditions of Assignment or
Transfer).
|
21.2
|
Conditions
of assignment or transfer
|
|
(a)
|
The
consent of the Borrower required under paragraph (a) of Clause 21.1
(Assignments and
Transfers by the Lender) to an assignment or transfer must not be
unreasonably withheld or delayed.
|
|
(b)
|
An
assignment will only be effective
on:
|
|
(i)
|
receipt
by the Agent of written confirmation from the New Lender (in form and
substance satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Finance Parties as it would have been under
if it was an Initial Lender; and
|
|
(ii)
|
performance
by the Agent of all necessary "know your customer" or other similar checks
under all applicable laws and regulations in relation to such assignment
to a New Lender, the completion of which the Agent shall promptly notify
to the Existing Lender and the New
Lender.
|
-63-
|
(c)
|
A
transfer will only be effective if the procedure set out in Clause 21.4
(Procedure for
transfer) is complied with.
|
|
(d)
|
If:
|
|
(i)
|
a
Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office;
and
|
|
(ii)
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, the Borrower would be obliged to make a payment to the New
Lender or a Lender acting through its new Facility Office under
Clause 12 (Tax
gross-up and indemnities) or Clause 13 (Increased
costs),
|
then the
New Lender or a Lender acting through its new Facility Office is only entitled
to receive payment under those Clauses to the same extent as the Existing Lender
or a Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
21.3
|
Limitation
of responsibility of Existing
Lenders
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to the Lender
for:
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other
documents;
|
|
(ii)
|
the
financial condition of any Obligor;
|
|
(iii)
|
the
performance and observance by any Obligor of its obligations under the
Finance Documents or any other documents;
or
|
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document,
|
and any
representations or warranties implied by law are excluded.
|
(b)
|
The
Lender confirms to the Existing Lender and the other Finance Parties that
it:
|
|
(i)
|
has
made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it by the
Existing Lender in connection with any Finance Document;
and
|
|
(ii)
|
will
continue to make its own independent appraisal of the creditworthiness of
each Obligor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Loan is in
force.
|
-64-
|
(c)
|
Nothing
in any Finance Document obliges an Existing Lender
to:
|
|
(i)
|
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause 21;
or
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
|
21.4
|
Procedure
for transfer
|
|
(a)
|
Subject
to the conditions set out in Clause 21.2 (Conditions of assignment or
transfer) a transfer is effected in accordance with paragraph (c)
below when the Agent executes an otherwise duly completed Transfer
Certificate delivered to it by the Existing Lender and the New
Lender. The Transfer Certificate shall be substantially in the
form set out at Schedule 5 to this Agreement and shall (i) indicate the
category of Qualifying Lender that the person beneficially entitled to
interest payable to the New Lender in respect of an advance under a
Finance Document is (the "Beneficial Owner"); and
(ii) in the case of a Beneficial Owner that is a Qualifying Lender within
the meaning of paragraph (d) of the definition of Qualifying Lender set
out in Clause 12.1 above, be accompanied by a copy of the
notification it is required to make under Section 246(5)(a) of the Irish
Taxes Act to the Irish Revenue Commissioners and the notification it is
required to make under Section 246(5)(a) of the Irish Taxes Act to the
relevant Obligor. The Agent shall, subject to paragraph (b)
below, as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the
terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer
Certificate.
|
|
(b)
|
The
Agent shall only be obliged to execute a Transfer Certificate delivered to
it by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary "know your customer" or other similar checks
under all applicable laws and regulations in relation to the transfer to
such New Lender.
|
|
(c)
|
On
the Transfer Date:
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance
Documents the Borrower and the Existing Lender shall be released from
further obligations towards one another under the Finance Documents and
their respective rights against one another under the Finance Documents
shall be cancelled (being the "Discharged Rights and
Obligations");
|
|
(ii)
|
the
Borrower and the New Lender shall assume obligations towards one another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as the Borrower and the New Lender
have assumed and/or acquired the same in place of the Borrower and the
Existing Lender;
|
-65-
|
(iii)
|
the
Agent, the New Lender and other Lenders shall acquire the same rights and
assume the same obligations between themselves as they would have acquired
and assumed had the New Lender been an Original the Lender with the rights
and/or obligations acquired or assumed by it as a result of the transfer
and to that extent the Agent, and the Existing Lender shall each be
released from further obligations to each other under the Finance
Documents; and
|
|
(iv)
|
the
New Lender shall become a Party as "the
Lender".
|
21.5
|
Copy
of Transfer Certificate to the
Borrower
|
The Agent
shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Borrower a copy of that Transfer
Certificate.
21.6
|
Disclosure
of information
|
Any
Lender may disclose to any of its Affiliates and any other person:
|
(a)
|
to
(or through) whom that the Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under this
Agreement;
|
|
(b)
|
with
(or through) whom that the Lender enters into (or may potentially enter
into) any sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, this Agreement or any
Obligor; or
|
|
(c)
|
to
whom, and to the extent that, information is required to be disclosed by
any applicable law or regulation,
|
any
information about any Obligor, and the Finance Documents as that the Lender
shall consider appropriate if, in relation to paragraphs (a) and (b) above, the
person to whom the information is to be given has entered into a Confidentiality
Undertaking.
21.7
|
Use
of the Collateral
|
Notwithstanding
anything to the contrary contained herein or in any Finance Documents, the
Security Trustee shall have free and unrestricted use of all Collateral (subject
to the provisions of the Finance Documents) and, except as provided below,
nothing in this Agreement shall preclude the Security Trustee from engaging in
repurchase transactions with the Collateral or otherwise pledging, repledging,
transferring, hypothecating, or rehypothecating the Collateral, on terms, and
subject to conditions, within the Security Trustee's absolute
discretion. Nothing contained in this Agreement shall oblige the
Security Trustee to segregate any Collateral delivered to the Security Trustee
by the Borrower; provided however, the documents evidencing such repurchase
transaction or pledge or hypothecation shall be consistent with the terms of
this Agreement and the other Finance Documents including, but not limited to,
the rights of the Borrower to have the Collateral delivered to the Borrower upon
repayment of all of the Loans.
22.
|
CHANGES
TO THE OBLIGORS
|
The
Borrower may not assign or otherwise transfer any of its rights or transfer any
of its rights or obligations under the Finance Documents.
-66-
SECTION
9
THE
FINANCE PARTIES
23.
|
ROLE
OF THE AGENT
|
23.1
|
Appointment
of the Agent and the Security
Trustee
|
|
(a)
|
Each
other Finance Party appoints the Agent to act as its agent under and in
connection with the Finance
Documents.
|
|
(b)
|
Each
other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and
discretions.
|
23.2
|
Duties
of the Agent
|
|
(a)
|
The
Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other
Party.
|
|
(b)
|
Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another
Party.
|
|
(c)
|
If
the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the other Finance
Parties.
|
|
(d)
|
If
the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the
Agent) under this Agreement it shall promptly notify the other Finance
Parties.
|
|
(e)
|
The
Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
|
23.3
|
No
fiduciary duties
|
|
(a)
|
Except
as provided in Clause 23.16 (Deduction from amounts payable
by the Agent) nothing in this Agreement constitutes the Agent as a
trustee or fiduciary of any other
person.
|
|
(b)
|
The
Agent shall not be bound to account to any Lender for any sum or the
profit element of any sum received by it for its own
account.
|
23.4
|
Business
with Affiliates
|
The Agent
may accept deposits from, lend money to and generally engage in any kind of
banking or other business with any Obligor or any Affiliate
thereof.
23.5
|
Rights
and discretions of the Agent
|
|
(a)
|
The
Agent may rely on:
|
|
(i)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and
|
-67-
|
(ii)
|
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify.
|
|
(b)
|
The
Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the Lenders)
that:
|
|
(i)
|
no
Default has occurred (unless it has actual knowledge of a Default arising
under Clause 20.1 (Non-payment));
|
|
(ii)
|
any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and
|
|
(iii)
|
any
notice or request made by the Borrower (other than a Request for
Borrowing) is made on behalf of and with the consent and knowledge of the
Guarantor.
|
|
(c)
|
The
Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
|
(d)
|
The
Agent may act in relation to the Finance Documents through its personnel
and agents.
|
|
(e)
|
The
Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this
Agreement.
|
|
(f)
|
Notwithstanding
any other provision of any Finance Document to the contrary, the Agent is
not obliged to do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law or regulation or a
breach of a fiduciary duty or duty of
confidentiality.
|
23.6
|
Majority
Lenders' instructions
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, the Agent shall (i)
exercise any right, power, authority or discretion vested in it as the
Agent in accordance with any instructions given to it by the Majority
Lenders (or, if so instructed by the Majority Lenders, refrain from
exercising any right, power, authority or discretion vested in it as the
Agent) and (ii) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with an instruction of the
Majority Lenders.
|
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
|
(c)
|
The
Agent may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require for any cost, loss or liability (together
with any associated VAT) which it may incur in complying with the
instructions.
|
-68-
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the
Lenders.
|
|
(e)
|
The
Agent is not authorised to act on behalf of a Lender (without first
obtaining that Xxxxxx's consent) in any legal or arbitration proceedings
relating to any Finance Document.
|
23.7
|
Responsibility
for documentation
|
The Agent
is not:
|
(a)
|
responsible
for the adequacy, accuracy and/or completeness of any information (whether
oral or written) supplied by the Agent, an Obligor or any other person
given in or in connection with any Finance Document or the Information
Memorandum; or
|
|
(b)
|
responsible
for the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document or any other agreement, arrangement or document
entered into, made or executed in anticipation of or in connection with
any Finance Document.
|
23.8
|
Exclusion
of liability
|
|
(a)
|
Without
limiting paragraph (b) below (and without prejudice to the provisions of
paragraph (e) of Clause 26.9 (Disruption to Payment Systems
etc.), the Agent will not be liable (including without limitation,
for negligence or any other category of liability whatsoever) for any
action taken by it under or in connection with any Finance Document,
unless directly caused by its gross negligence or wilful
misconduct.
|
|
(b)
|
No
Party (other than the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any
officer, employee or agent of the Agent may rely on this Clause subject to
Clause 1.3 (Third
Party Rights) and the provisions of the Third Parties
Act.
|
|
(c)
|
The
Agent will not be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents
to be paid by the Agent if the Agent has taken all necessary steps as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by the
Agent for that purpose.
|
|
(d)
|
Nothing
in this Agreement shall oblige the Agent to carry out any "know your
customer" or other checks in relation to any person on behalf of any
Lender and each Lender confirms to the Agent that it is solely responsible
for any such checks it is required to carry out and that it may not rely
on any statement in relation to such checks made by the
Agent.
|
-69-
23.9
|
Lenders'
indemnity to the Agent
|
Each
Lender shall (in proportion to its share of the Total Maximum Credit or, if the
Total Maximum Credit is then zero, to its share of the Total Maximum Credit
immediately prior to their reduction to zero) indemnify the Agent, within three
Business Days of demand, against any cost, loss or liability (including, without
limitation, for negligence or any other category of liability whatsoever)
incurred by the Agent (otherwise than by reason of the Agent's gross negligence
or wilful misconduct) (or, in the case of any cost, loss or liability pursuant
to Clause 26.9 (Disruption to Payment Systems
etc.) notwithstanding the Agent's negligence, gross negligence, or any
other category of liability whatsoever but not including any claim based on the
fraud of the Agent) in acting as the Agent under the Finance Documents (unless
the Agent has been reimbursed by an Obligor pursuant to a Finance
Document).
23.10
|
Resignation
of the Agent
|
|
(a)
|
The
Agent may resign and appoint one of its Affiliates acting through an
office in the United Kingdom as successor by giving notice to the other
Finance Parties and the Borrower.
|
|
(b)
|
Alternatively
the Agent may resign by giving notice to the other Finance Parties and the
Borrower, in which case the Majority Lenders (after consultation with the
Borrower) may appoint a successor
agent.
|
|
(c)
|
If
the Majority Lenders have not appointed a successor agent in accordance
with paragraph (b) above within thirty (30) days after notice of
resignation was given, the Agent (after consultation with the Borrower)
may appoint a successor agent (acting through an office in the United
Kingdom).
|
|
(d)
|
The
Agent shall, at its own cost, make available to the successor agent such
documents and records and provide such assistance as the successor agent
may reasonably request for the purposes of performing its functions as the
Agent under the Finance Documents.
|
|
(e)
|
The
Agent's resignation notice shall only take effect upon the appointment of
a successor.
|
|
(f)
|
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of this Clause 23. Its successor
and each of the other Parties shall have the same rights and obligations
amongst themselves as they would have had if such successor had been an
original Party.
|
|
(g)
|
After
consultation with the Borrower, the Majority Lenders may, by notice to the
Agent, require it to resign in accordance with paragraph (b)
above. In this event, the Agent shall resign in accordance with
paragraph (b) above.
|
23.11
|
Confidentiality
|
|
(a)
|
In
acting as agent for the Finance Parties, the Agent shall be regarded as
acting through its agency division which shall be treated as a separate
entity from any other of its divisions or
departments.
|
-70-
|
(b)
|
If
information is received by another division or department of the Agent, it
may be treated as confidential to that division or department and the
Agent shall not be deemed to have notice of
it.
|
23.12
|
Relationship
with the Lenders
|
|
(a)
|
The
Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received
not less than five (5) Business Days prior notice from that Lender to the
contrary in accordance with the terms of this
Agreement.
|
|
(b)
|
Each
Lender shall supply the Agent with any information required by the Agent
in order to calculate the Mandatory Cost in accordance with Schedule 4
(Mandatory Cost
formulae).
|
23.13
|
Credit
appraisal by the Lenders
|
Without
affecting the responsibility of any Obligor for information supplied by it or on
its behalf in connection with any Finance Document, each Lender confirms to the
Agent that it has been, and will continue to be, solely responsible for making
its own independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:
|
(a)
|
the
financial condition, status and nature of each
Obligor;
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document;
|
|
(c)
|
whether
that Xxxxxx has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any
Finance Document; and
|
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Memorandum and
any other information provided by the Agent, any Party or by any other
person under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in
connection with any Finance
Document.
|
23.14
|
Reference
Banks
|
If a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it
is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with
the Borrower) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
23.15
|
The
Agent's Management Time
|
Except
for any amount to be paid to the Agent in respect of any proposed or actual
syndication of a Loan (which amount shall be paid by the Lenders) any amount
payable to the Agent under
-71-
Clause 15
(Costs and expenses)
and Clause 15 (Lenders'
indemnity to the Agent) shall include the cost of utilising the Agent's
management time or other resources and will be calculated on the basis of such
reasonable daily or hourly rates as the Agent may agree with the Borrower and
the Lenders, and is in addition to any fee paid or payable to the Agent under
Clause 15 (Fees).
23.16
|
Deduction
from amounts payable by the Agent
|
If any
Party owes an amount to the Agent under the Finance Documents the Agent may,
after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged to
make under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so
deducted.
23.17
|
The
Security Trustee as trustee
|
|
(a)
|
The
Security Trustee declares that it holds all rights, title and interests
in, to and under those Finance Documents to which it is a party and
expressed to be a trustee (acting as trustee for the Finance Parties), and
all proceeds of the enforcement of such Finance Documents, on trust for
the Finance Parties from time to time. This trust shall remain
in force even if the Security Trustee (in whatever capacity) is at any
time the sole Finance Party.
|
|
(b)
|
The
Security Trustee, in its capacity as trustee or otherwise under any
Finance Document is not liable for any
failure:
|
|
(i)
|
to
require the deposit with it of any title deed, any Finance Document; or
any other documents in connection with any Finance
Document;
|
|
(ii)
|
in
it (or its solicitors) holding any title deed, any Finance Document or any
other documents in connection with any Finance Document in its own
possession or to take any steps to protect or preserve the same including
permitting the Borrower to retain any such title deeds, any Finance
Documents or any other documents;
|
|
(iii)
|
to
obtain any licence, consent or other authority for the execution,
delivery, validity, legality, adequacy, performance, enforceability or
admissibility in evidence of any such Finance
Document;
|
|
(iv)
|
to
effect or ensure registration of or otherwise protect any of the security
created by any such Finance Document by registering the same under the
Land Registration Act 2002 or any other applicable registration laws in
any jurisdiction or otherwise by registering any notice, caution or other
entry prescribed by or pursuant to the provisions of the said Act or
laws;
|
|
(v)
|
to
take or require the Borrower to take any step to render the security
created or purported to be created by or pursuant to any such Finance
Document effective or to secure the creation of any ancillary security
under the laws of any jurisdiction;
|
-72-
|
(vi)
|
to
require any further assurances in relation to any such Finance Document;
or
|
|
(vii)
|
to
insure any asset or require any other person to maintain any such
insurance or be responsible for any loss which may be suffered by any
person as a result of the lack, or inadequacy or insufficiency, of any
such insurance.
|
|
(c)
|
The
Security Trustee may accept, without enquiry, any right or title that the
Borrower may (or may purport to) have to any asset which is the subject of
any such Finance Document and shall not be bound or concerned to
investigate or make any enquiry into the right or title of the Borrower to
any such asset or to require the Borrower to remedy any defect in its
right or title to the same.
|
|
(d)
|
Save
as otherwise provided in the Finance Documents, all moneys, which under
the trusts contained in any Finance Document are received by the Security
Trustee in its capacity as trustee or otherwise, may be invested in the
name of, or under the control of, the Security Trustee in any investment
for the time being authorised by English law for the investment by a
trustee of trust money or in any other investments which may be selected
by the Security Trustee. Additionally, the same may be placed
on deposit in the name of, or under the control of, the Security Trustee
at such bank or institution (including the Security Trustee) and upon such
terms as the Agent may think fit.
|
|
(e)
|
Section
1 of the Trustee Act 2000 shall not apply to the duties of the Security
Trustee in relation to the trusts constituted by any Finance
Document. Where there are any inconsistencies between that Act
and the provisions of that Finance Document, the provisions of that
Finance Document shall, to the extent allowed by law, prevail and, in the
case of any inconsistency with that Act, the provisions of that Finance
Document shall constitute a restriction or exclusion for the purposes of
that Act.
|
|
(f)
|
The
perpetuity period for the trusts in this Agreement is 80
years.
|
24.
|
Conduct
of business by the Finance Parties
|
No
provision of this Agreement will:
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
(b)
|
oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim;
or
|
|
(c)
|
oblige
any Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of
Tax.
|
25.
|
SHARING
AMONG THE FINANCE PARTIES
|
25.1
|
Payments
to Finance Parties
|
If a
Finance Party (a "Recovering
Finance Party") receives or recovers any amount from an Obligor other
than in accordance with Clause 26 (Payment mechanics) and
applies that amount to a payment due under the Finance Documents
then:
-73-
|
(a)
|
the
Recovering Finance Party shall, within three (3) Business Days, notify
details of the receipt or recovery, to the
Agent;
|
|
(b)
|
the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Finance Party would have been paid had the receipt
or recovery been received or made by the Agent and distributed in
accordance with Clause 26 (Payment mechanics),
without taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution;
and
|
|
(c)
|
the
Recovering Finance Party shall, within three (3) Business Days of demand
by the Agent, pay to the Agent an amount (the "Sharing Payment") equal
to such receipt or recovery less any amount which the Agent determines may
be retained by the Recovering Finance Party as its share of any payment to
be made, in accordance with the
Debenture.
|
25.2
|
Redistribution
of payments
|
The Agent
shall treat the Sharing Payment as if it had been paid by the relevant Obligor
and distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with the Debenture.
25.3
|
Recovering
Finance Party's rights
|
|
(a)
|
On
a distribution by the Agent under Clause 25.2 (Redistribution of
payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
|
|
(b)
|
If
and to the extent that the Recovering Finance Party is not able to rely on
its rights under paragraph (a) above, the relevant Obligor shall be liable
to the Recovering Finance Party for a debt equal to the Sharing Payment
which is immediately due and
payable.
|
25.4
|
Reversal
of redistribution
|
If any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
|
(a)
|
each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 25.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
the account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together with an
amount as is necessary to reimburse that Recovering Finance Party for its
proportion of any interest on the Sharing Payment which that Recovering
Finance Party is required to pay);
and
|
|
(b)
|
that
Recovering Finance Party's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable
to the reimbursing Finance Party for the amount so
reimbursed.
|
-74-
25.5
|
Exceptions
|
|
(a)
|
This
Clause 25 shall not apply to the extent that the Recovering Finance Party
would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant
Obligor.
|
|
(b)
|
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings,
if:
|
|
(i)
|
it
notified that other Finance Party of the legal or arbitration proceedings;
and
|
|
(ii)
|
that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.
|
-75-
SECTION
10
ADMINISTRATION
26.
|
PAYMENT
MECHANICS
|
26.1
|
Payments
to the Agent
|
|
(a)
|
On
each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or the Lender shall make the same
available to the Agent (unless a contrary indication appears in a Finance
Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of
payment.
|
|
(b)
|
Payment
shall be made to such account in the principal financial centre of the
country of that currency (or, in relation to euro, in a principal
financial centre in a Participating Member State or London) with such bank
as the Agent specifies.
|
26.2
|
Distributions
by the Agent
|
Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 26.3 (Distributions to an Obligor),
Clause 26.4 (Clawback)
and Clause 23.16 (Deduction from amounts payable by
the Agent) be made available by the Agent as soon as practicable after
receipt to the Party entitled to receive payment in accordance with this
Agreement (in the case of a Lender, for the account of its Facility Office), to
such account as that Party may notify to the Agent by not less than five (5)
Business Days' notice with a bank in the principal financial centre of the
country of that currency (or, in relation to euro, in the principal financial
centre of a Participating Member State or London).
26.3
|
Distributions
to an Obligor
|
The Agent
may (with the consent of the Obligor or in accordance with Clause 27 (Set-off)) apply any amount
received by it for that Obligor in or towards payment (on the date and in the
currency and funds of receipt) of any amount due from that Obligor under the
Finance Documents or in or towards purchase of any amount of any currency to be
so applied.
26.4
|
Clawback
|
|
(a)
|
Where
a sum is to be paid to the Agent under the Finance Documents for another
Party, the Agent is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been
able to establish to its satisfaction that it has actually received that
sum.
|
|
(b)
|
If
the Agent pays an amount to another Party and it proves to be the case
that the Agent had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was
paid by the Agent shall on demand refund the same to the Agent together
with interest on that amount from the date of payment to the date of
receipt by the Agent, calculated by the Agent to reflect its cost of
funds.
|
-76-
26.5
|
No
set-off by Obligors
|
All
payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
26.6
|
Business
Days
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day shall
be made on the next Business Day.
|
|
(b)
|
During
any extension of the due date for payment of any principal or Unpaid Sum
under this Agreement interest is payable on the principal or Unpaid Sum at
the rate payable on the original due
date.
|
26.7
|
Currency
of account
|
|
(a)
|
Subject
to paragraphs (b) to (e) below, the Base Currency is the currency of
account and payment for any sum due from an Obligor under any Finance
Document.
|
|
(b)
|
A
repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall
be made in the currency in which such Loan or Unpaid Sum is denominated on
the due date.
|
|
(c)
|
Each
payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
|
|
(d)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
|
(e)
|
Any
amount expressed to be payable in a currency other than the Base Currency
shall be paid in that other
currency.
|
26.8
|
Change
of currency
|
|
(a)
|
Unless
otherwise prohibited by law, if more than one currency or currency unit
are at the same time recognised by the central bank of any country as the
lawful currency of that country,
then:
|
|
(i)
|
any
reference in the Finance Documents to, and any obligations arising under
the Finance Documents in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country designated
by the Agent (after consultation with the Borrower);
and
|
|
(ii)
|
any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded up or
down by the Agent (acting
reasonably).
|
|
(b)
|
If
a change in any currency of a country occurs, this Agreement will, to the
extent the Agent (acting reasonably and after consultation with the
Borrower) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in
currency.
|
-77-
26.9
|
Disruption
to Payment Systems etc.
|
If either
the Agent determines (in its discretion) that a Disruption Event has occurred or
the Agent is notified by the Borrower that a Disruption Event has
occurred:
|
(a)
|
the
Agent may, and shall if requested to do so by the Borrower, consult with
the Borrower with a view to agreeing with the Borrower such changes to the
operation or administration of the Facility as the Agent may deem
necessary in the circumstances;
|
|
(b)
|
the
Agent shall not be obliged to consult with the Borrower in relation to any
changes mentioned in paragraph (a) if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such
changes;
|
|
(c)
|
the
Agent may consult with the Finance Parties in relation to any changes
mentioned in paragraph (a) but shall not be obliged to do so if, in its
opinion, it is not practicable to do so in the
circumstances;
|
|
(d)
|
any
such changes agreed upon by the Agent and the Borrower shall (whether or
not it is finally determined that a Disruption Event has occurred) be
binding upon the Parties as an amendment to (or, as the case may be,
waiver of) the terms of the Finance Documents notwithstanding the
provisions of Clause 32 (Amendments and
Waivers);
|
|
(e)
|
the
Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross
negligence or any other category of liability whatsoever but not including
any claim based on the fraud of the Agent) arising as a result of its
taking, or failing to take, any actions pursuant to or in connection with
this Clause 26.9; and
|
|
(f)
|
the
Agent shall notify the Finance Parties of all changes agreed pursuant to
paragraph (d) above.
|
27.
|
SET-OFF
|
In
addition to any rights and remedies of the Lender provided by this Agreement and
by law, the Lender shall have the right, without prior notice to the Borrower,
and such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits of
the Borrower (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Lender or any Affiliate thereof to
or for the credit or the account of the Borrower. The Lender agrees
promptly to notify the Borrower after any such set-off and application made by
the Lender provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
-78-
28.
|
NOTICES
|
28.1
|
Communications
in writing
|
Any
communication to be made under or in connection with the Finance Documents shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
28.2
|
Addresses
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:
|
(a)
|
in
the case of the Borrower, that identified with its name
below;
|
|
(b)
|
in
the case of each Lender, that notified in writing to the Agent on or prior
to the date on which it becomes a
Party;
|
|
(c)
|
in
the case of the Initial Lender, that identified with its name below;
and
|
|
(d)
|
in
the case of the Agent, that identified with its name
below,
|
or any
substitute address or fax number or department or officer as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a change
is made by the Agent) by not less than five (5) Business Days'
notice.
28.3
|
Delivery
|
|
(a)
|
Any
communication or document made or delivered by one person to another under
or in connection with the Finance Documents will only be
effective:
|
|
(i)
|
if
by way of fax, when received in legible form;
or
|
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or five
(5) Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that
address,
|
and, if a
particular department or officer is specified as part of its address details
provided under Clause 28.2 (Addresses), if addressed to
that department or officer.
|
(b)
|
Any
communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified
with the Agent's signature below (or any substitute department or officer
as the Agent shall specify for this
purpose).
|
|
(c)
|
All
notices from or to an Obligor shall be sent through the
Agent.
|
|
(d)
|
Any
communication or document made or delivered to the Borrower in accordance
with this Clause will be deemed to have been made or delivered to the
Guarantor.
|
-79-
28.4
|
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 0 (Addresses) or changing its
own address or fax number, the Agent shall notify the other
Parties.
28.5
|
Electronic
communication
|
|
(a)
|
Any
communication to be made between the Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail or
other electronic means, if the Agent and the relevant
Lender:
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an accepted
form of communication;
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means; and
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
(b)
|
Any
electronic communication made between the Agent and a Lender will be
effective only when actually received in readable form and in the case of
any electronic communication made by a Lender to the Agent only if it is
addressed in such a manner as the Agent shall specify for this
purpose.
|
28.6
|
English
language
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must be in
English.
|
|
(b)
|
All
other documents provided under or in connection with any Finance Document
must be:
|
|
(i)
|
in
English; or
|
|
(ii)
|
if
not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other
official document.
|
29.
|
CALCULATIONS
AND CERTIFICATES
|
29.1
|
Accounts
|
In any
litigation or arbitration proceedings arising out of or in connection with a
Finance Document, the entries made in the accounts maintained by a Finance Party
are prima facie
evidence of the matters to which they relate.
29.2
|
Certificates
and Determinations
|
Any
certification or determination by a Finance Party of a rate or amount under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.
-80-
29.3
|
Day
count convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.
30.
|
PARTIAL
INVALIDITY
|
If, at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
31.
|
REMEDIES
AND WAIVERS
|
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or
remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by
law.
32.
|
AMENDMENTS
AND WAIVERS
|
32.1
|
Required
consents
|
|
(a)
|
Subject
to Clause 32.2 (Exceptions) any term of
the Finance Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors and any such amendment or waiver
will be binding on all Parties.
|
|
(b)
|
The
Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause.
|
32.2
|
Exceptions
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
(i)
|
the
definition of "Majority Lenders" in Clause 0
(Definitions);
|
|
(ii)
|
an
extension to the date of payment of any amount under the Finance
Documents;
|
|
(iii)
|
a
reduction in the amount of any payment of principal, interest, fees or
commission payable;
|
|
(iv)
|
an
increase in or an extension of any
Loan;
|
|
(v)
|
a
change to the Borrower or the
Guarantor;
|
|
(vi)
|
any
provision which expressly requires the consent of all Lenders;
or
|
|
(vii)
|
Clause
24 (Conduct of Business
by the Finance Parties), Clause 21 (Changes to the Lenders)
or this Clause 32.
|
-81-
shall not
be made without the prior consent of all the Lenders.
|
(b)
|
An
amendment or waiver which relates to the rights or obligations of the
Agent may not be effected without the consent of the
Agent.
|
33.
|
COUNTERPARTS
|
Each
Finance Document may be executed in any number of counterparts, and this has the
same effect as if the signatures on the counterparts were on a single copy of
the Finance Document.
33.1
|
Servicing
|
|
(a)
|
The
Borrower covenants to maintain or cause the servicing of the Collateral to
be maintained in conformity with accepted and prudent servicing practices
in the industry for the same type of collateral as the Collateral and in a
manner at least equal in quality to the servicing the Borrower provides
for mortgage loans, mezzanine loans and equity interests which it
owns. In the event that the preceding language is interpreted
as constituting one or more servicing contracts, each such servicing
contract shall terminate automatically upon the earliest of (i) an Event
of Default; or (ii) the transfer of servicing approved by the
Borrower.
|
|
(b)
|
If
the Collateral is serviced by the Borrower, (i) the Borrower agrees and
acknowledges that the Security Trustee is the assignee by way of security
of all servicing records, including but not limited to any and all
servicing agreements, files, documents, records, data bases, computer
tapes, copies of computer tapes, proof of insurance coverage, insurance
policies, appraisals, other closing documentation, payment history
records, and any other records relating to or evidencing the servicing of
Collateral (the "Servicing Records"). The
Borrower covenants to safeguard such Servicing Records and to deliver them
promptly to the Lender or its designee (including the Custodian) at the
Security Trustee's request.
|
|
(c)
|
If
the Collateral is serviced by a third party servicer (such third party
servicer, "the
Servicer"), the Borrower (i) shall provide a copy of the servicing
agreement to the Security Trustee and the Agent, which shall be in form
and substance acceptable to the Agent, together with all addendums thereto
(collectively, the "Servicing Agreement");
and (ii) shall provide a Servicer Notice to the Servicer substantially in
the form of Schedule 16 (Servicer Notice) (a
"Servicer Notice")
and shall cause the Servicer to acknowledge and agree to the
same. Any successor or assignee of a Servicer shall be approved
in writing by the Agent and shall acknowledge and agree to a Servicer
Notice prior to such successor’s assumption of servicing obligations with
respect to any or all of the
Collateral.
|
|
(d)
|
If
the servicer of the Collateral is the Borrower or the Servicer is an
Affiliate of the Borrower, the Borrower shall provide to the Agent and the
Security Trustee a letter from the Borrower or the Servicer, as the case
may be, to the effect that upon the occurrence and during the continuance
of an Event of Default, the Security Trustee may terminate any Servicing
Agreement and in any event transfer servicing to the Security Trustee's
designee, at no cost or expense to the Security Trustee, it being agreed
that the Borrower will pay any and all fees required to terminate the
Servicing
|
-82-
Agreement
and to effectuate the transfer of servicing to the designee of the Security
Trustee.
|
(e)
|
In
the event the Borrower or its Affiliate is servicing the Collateral, the
Borrower shall permit the Security Trustee and the Agent, upon advance
written notice to the Borrower (unless a Default or Event of Default shall
have occurred and be continuing, in which case no notice shall be
required), from time to time to inspect the Borrower’s or its Affiliate’s
servicing facilities, as the case may be, for the purpose of satisfying
the Security Trustee and the Agent that the Borrower or its Affiliate, as
the case may be, has the ability to service the Collateral as provided in
this Agreement.
|
|
(f)
|
Irrespective
of whether the Servicer is the Borrower or a third party servicer, the
Borrower undertakes to procure that any monies received in respect of or
derived from the Collateral will be paid forthwith into a Borrower Bank
Account.
|
33.2
|
Periodic
Due Diligence Review
|
The
Borrower acknowledges that the Agent and the Security Trustee has the right to
perform continuing due diligence reviews (a "Due Diligence Review") with
respect to the Collateral and the manner in which they were originated, for the
purposes of verifying compliance with the representations, warranties and
specifications made hereunder, or otherwise, and the Borrower agrees that upon
reasonable (but no less than five (5) Business Days) prior notice to the
Borrower (unless a Default or Event of Default shall have occurred and be
continuing, in which case no notice shall be required), the Agent and the
Security Trustee or its authorised representatives will be permitted during
normal business hours to examine, inspect, and make copies and extracts of, the
Collateral Files and any and all documents, records, agreements, instruments or
information relating to such Collateral in the possession or under the control
of the Borrower and/or the Custodian. The Borrower also shall make
available to the Agent and the Security Trustee a knowledgeable financial or
accounting officer for the purpose of answering questions respecting the
Collateral Files and the Collateral. Without limiting the generality
of the foregoing, the Borrower acknowledges that the Lenders may make the Loans
to the Borrower based solely upon the information provided by the Borrower to
the Agent and the representations, warranties and covenants contained herein,
and that the Agent, at its option, has the right at any time to conduct a
partial or complete due diligence review on some or all of the Collateral Files
securing the Secured Obligations, including without limitation ordering new
credit reports and new Appraisals from a valuer and in a form each reasonably
acceptable to the Borrower on the related Encumbered Properties and otherwise
re-generating the information used to originate such Eligible
Collateral. The Agent may underwrite the Eligible Collateral itself
or engage a mutually agreed upon third party underwriter to perform such
underwriting. The Borrower agrees to cooperate with the Agent and any
third party underwriter in connection with such underwriting, including, but not
limited to, providing the Agent and any third party underwriter with access to
any and all documents, records, agreements, instruments or information relating
to the Eligible Collateral in the possession, or under the control, of the
Borrower. The Borrower further agrees that the Borrower shall
reimburse the Agent and the Security Trustee for any and all out-of-pocket costs
and expenses incurred by the Agent and the Security Trustee in connection with
the their respective activities pursuant to this Clause 33.2. Provided that the Borrower
shall not reimburse the Agent in
-83-
respect
of any Due Diligence Review carried out in respect of the origination of any
item of Collateral, sourced or provided by MS & Co.
33.3
|
Disclaimers
|
Each
determination by the Agent of the Asset Value of one or more items of Eligible
Collateral or the communication to the Borrower of any other information
pertaining to Asset Value under this Agreement shall be subject to the following
disclaimers:
|
(a)
|
the
Agent has assumed and relied upon, with the Borrower’s consent and without
independent verification, the accuracy and completeness of the information
provided by the Borrower and reviewed by the Agent. The Agent
has not made any independent inquiry of any aspect of the subject items of
Eligible Collateral or collateral underlying such item of Eligible
Collateral or of the other assets or liabilities or creditworthiness of
any Collateral Obligor. The Agent's view is based on economic,
market and other conditions as in effect on, and the information made
available to the Agent as at, the date of any such determination or
communication of information, and such view may change at any time without
prior notice to the Borrower.
|
|
(b)
|
Asset
Value determinations and other information provided to the Borrower
constitute a statement of the Agent’s view of the value of one or more
assets at a particular point in time and neither (i) constitute a bid for
a particular trade, (ii) indicate a willingness on the part of the Agent
or any Affiliate thereof to make such a bid, nor (iii) reflect a valuation
for substantially similar assets at the same or another point in time, or
for the same assets at another point in
time.
|
|
(c)
|
Asset
Value determinations and other information provided to the Borrower do not
necessarily reflect the Agent’s internal bookkeeping or theoretical
model-based valuations of the subject items of Eligible Collateral or
substantially similar assets.
|
|
(d)
|
Asset
Value determinations and other information provided to the Borrower may
vary significantly from valuation determinations and other information
which may be obtained from other
sources.
|
|
(e)
|
Asset
Value determinations and other information provided to the Borrower are
provided for information purposes only in furtherance of the provisions of
this Agreement, and are not an offer to enter into, transfer and assign,
or terminate any transaction.
|
|
(f)
|
Asset
Value determinations and other information provided to the Borrower are
communicated to the Borrower solely for its use and may not be relied upon
by any other person and may not be disclosed or referred to publicly or to
any third party without the prior written consent of the Agent, which
consent the Agent may withhold or delay in its sole and absolute
discretion.
|
|
(g)
|
the
Agent makes no representations or warranties with respect to any Asset
Value determinations or other information provided to the Borrower, the
Agent nor the Lender shall be liable for any incidental or consequential
damages arising out of any
|
-84-
inaccuracy
in such valuation determinations and other information provided to the Borrower,
including as a result of any act of gross negligence or breach of any
warranty.
|
(h)
|
Valuation
indications and other information provided to the Borrower in connection
with Clause 5 (Procedure
for Loans) are only indicative of the Asset Value of the subject
item of Eligible Collateral submitted to the Agent for consideration
thereunder, and may change without notice to the Borrower prior to, or
subsequent to, the pledge by the Borrower of such item of Eligible
Collateral pursuant to Clause 5 (Procedure for
Loans). No indication is provided as to the Agent’s
expectation of the future value of such item of Eligible
Collateral.
|
|
(i)
|
Valuation
indications and other information provided to the Borrower in connection
Clause 5 (Procedure for
Loans) are to be used by the Borrower for the sole purpose of
determining whether to proceed in accordance with Clause 5 (Procedure for Loans)
and for no other purpose.
|
34.
|
ENTIRE
AGREEMENT
|
This
Agreement and any document referred to in this Agreement constitute the entire
agreement and understanding between the parties relating to the subject matter
of this Agreement and supersede any previous agreements between the Parties
relating to the subject matter of this Agreement.
-85-
SECTION
11
GOVERNING
LAW AND ENFORCEMENT
35.
|
GOVERNING
LAW
|
This
Agreement is governed by English law.
36.
|
ENFORCEMENT
|
36.1
|
Limited
Recourse
|
|
(a)
|
Neither
the Security Trustee or any Secured Party or any of the other parties
hereto (nor any person acting on their behalf) shall be entitled at any
time to institute against the Borrower, or join in any institution against
the Borrower, of any bankruptcy, administration, monitoring,
reorganisation, controlled management, arrangement, insolvency,
examinership, winding up or liquidation proceedings or similar insolvency
proceedings under any applicable bankruptcy or similar law in connection
with any obligation of the Borrower under any Finance Document, save for
lodging claims and exercising voting and all other rights available to
creditors in the liquidation, winding-up, examinership or other insolvency
or reorganisation proceedings of the Borrower which is initiated by
another party or taking proceedings to obtain a declaration or judgment as
to the obligation of the Borrower and provided that the
Security Trustee or any Secured Party or any of the other parties hereto
may appoint a receiver pursuant to the Law of Property Act, 1925 or the
Conveyancing and Law of Property Act, 1881 of Ireland (as applicable) over
any of the Borrower's assets if entitled to do so in accordance with and
pursuant to this Debenture.
|
|
(b)
|
The
Security Trustee each of the Secured Parties and the other parties hereto
hereby agree that they shall have recourse in respect of any claim against
the Borrower only to the assets of the Borrower (provided always that this
clause 36.1(b) shall in no way restrict or diminish the rights of a
Finance Party under the Guarantee which shall remain in full force and
effect notwithstanding that the recourse against the Borrower hereunder is
so limited). In furtherance of the foregoing sentence, no recourse shall
be had for the payment or performance of any obligation or liability
hereunder or under any Finance Document or any claim based thereon against
any director, officer or independent contractor of the Borrower except in
the case of gross negligence or fraud on the part of such a person or in
the event of statutory liability arising as a result of breach of law by
that person.
|
36.2
|
Jurisdiction
|
|
(a)
|
The
courts of England have non-exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a
"Dispute").
|
|
(b)
|
The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue
to the contrary.
|
|
(c)
|
This
Clause 36.12 is for the benefit of the Finance Parties only. As
a result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any
|
-86-
other
courts with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
36.3
|
Service
of process
|
Without
prejudice to any other mode of service allowed under any relevant law, each
Obligor (other than an Obligor incorporated in England and Wales):
|
(a)
|
irrevocably
appoints Blackrock Group Limited of 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx XX0X
0XX as its agent for service of process in relation to any proceedings
before the English courts in connection with any Finance Document;
and
|
|
(b)
|
agrees
that failure by an agent for service of process to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
-87-
SCHEDULE
1
The
Parties
Part
I
The
Obligors
Name
of Borrower
|
Registration
number (or equivalent, if any)
|
AHR
CAPITAL MS LIMITED
|
411989
(IRELAND)
|
Name
of Guarantor
|
Registration
number (or equivalent, if any)
|
ANTHRACITE
CAPITAL, INC.
|
N/A
|
-88-
Part
II
The
Lenders
Maximum
Credit
|
|
XXXXXX
XXXXXXX PRINCIPAL FUNDING INC.
|
$300,000,000
|
-89-
SCHEDULE
2
[Conditions
Precedent]
-90-
SCHEDULE
3
[Request
for Borrowing]
-103-
SCHEDULE
4
[Mandatory
Cost Formulae]
-105-
SCHEDULE
5
[Form
of Transfer Certificate]
-108-
SCHEDULE
6
[Reserved]
-110-
SCHEDULE
7
[Reserved]
-111-
SCHEDULE
8
[LMA
Form of Confidentiality Undertaking ]
-112-
SCHEDULE
9
[Reserved]
-113-
SCHEDULE
10
[Pricing
Matrix]
-114-
SCHEDULE 11
[Representations
And Warranties Re: Eligible Collateral]
-115-
SCHEDULE
12
[Form
of Custodial Agreement]
-116-
SCHEDULE
13
[Form
of Opinions Counsel to Borrower]
-117-
SCHEDULE
14
[Reserved]
-118-
SCHEDULE
15
[reserved]
-119-
SCHEDULE
16
Servicer
Notice
[FORM
OF SERVICER NOTICE]
-120-