Exhibit 10.10
Final Draft February 14, 2006
$200,000,000
FACILITY AGREEMENT
dated February 14 2006
for
AHR CAPITAL MS LIMITED
as the Borrower
arranged by
MORGAN STANLEY MORTGAGE SERVICING INC.
acting as the Security Trustee
and
MORGAN STANLEY BANK
as the Initial Lender and Agent
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MULTICURRENCY REVOLVING FACILITY AGREEMENT
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CONTENTS
CLAUSE Page
1. Definitions And Interpretation..........................................1
2. The Facility...........................................................19
3. Purpose................................................................19
4. Conditions Of Loans....................................................20
5. Procedure For Loans....................................................20
6. Optional Currencies....................................................26
7. Repayment..............................................................27
8. Repayment, Pre-Payment And Cancellation................................27
9. Interest...............................................................31
10. Changes To The Calculation Of Interest.................................32
11. Fees...................................................................33
12. Tax Gross Up And Indemnities...........................................34
13. Increased Costs........................................................38
14. Other Indemnities......................................................39
15. Costs And Expenses.....................................................40
16. Mitigation By The Lenders..............................................41
17. Representations........................................................43
18. Information Undertakings...............................................47
19. General Undertakings...................................................48
20. Events Of Default......................................................53
21. Changes To The Lenders.................................................58
22. Changes To The Obligors................................................61
23. Role Of The Agent......................................................61
24. Conduct Of Business By The Finance Parties.............................68
25. Sharing Among The Finance Parties......................................68
26. Payment Mechanics......................................................70
27. Set-Off................................................................72
28. Notices................................................................72
29. Calculations And Certificates..........................................74
30. Partial Invalidity.....................................................74
31. Remedies And Waivers...................................................74
32. Amendments And Waivers.................................................75
33. Counterparts...........................................................75
34. Governing Law..........................................................79
35. Enforcement............................................................79
SCHEDULE 1 THE ORIGINAL PARTIES...............................................
Part I The Obligors....................................................
Part II The Initial Lender.............................................
SCHEDULE 2 CONDITIONS PRECEDENT...............................................
Part I Conditions Precedent To First Loan Under This Agreement.........
Part II Conditions Precedent To All Loans..............................
Part III Additional Requirements.......................................
SCHEDULE 3 REQUEST FOR BORROWING..............................................
SCHEDULE 4 MANDATORY COST FORMULAE............................................
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE.......................................
SCHEDULE 6 [RESERVED].........................................................
SCHEDULE 7 [RESERVED].........................................................
SCHEDULE 8 LMA FORM OF CONFIDENTIALITY UNDERTAKING............................
SCHEDULE 9 [RESERVED].........................................................
SCHEDULE 10 PRICING MATRIX....................................................
SCHEDULE 11 REPRESENTATIONS AND WARRANTIES RE: ELIGIBLE COLLATERAL............
SCHEDULE 12 FORM OF CUSTODIAL AGREEMENT.......................................
SCHEDULE 13 FORM OF OPINIONS COUNSEL TO BORROWER..............................
SCHEDULE 14 [RESERVED]........................................................
SCHEDULE 15 [RESERVED]........................................................
SCHEDULE 16 SERVICER NOTICE...................................................
THIS AGREEMENT is dated February 14, 2006 and made between:
(1) AHR CAPITAL MS LIMITED (the "Borrower");
(2) MORGAN STANLEY MORTGAGE SERVICING LTD. ("the Security Trustee"); and
(3) MORGAN STANLEY BANK (the "Initial Lender" and "the Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"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.
"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, with respect to each item of Collateral
the Applicable Margin applicable to such item of Collateral as set
forth in Schedule 10 (Pricing Matrix) or such other Applicable Margin
as may be mutually agreed to by the Borrower and the Agent.
"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 (such principal repayments being first converted into the
Base Currency suing the Agent's Spot Rate of Exchange on the day which
was one (1) Business Day before the relevant Funding Date of such
Loan).
"Asset Value" shall mean, as of any date in respect of any item of
Eligible Collateral, the price 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:
(1) 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;
(2) 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);
(3) 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 period in excess of fourteen (14) days unless the Agent
and Custodian have approved such release for a longer period
of time; and
(4) 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.
Notwithstanding anything to the contrary contained in this definition,
whenever an Asset Value determination is required under this Agreement:
(a) 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
(b) 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).
"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 Termination Date.
"Available Credit" shall mean, with respect to any Lender, such
Lender's Maximum Credit minus:
(a) the Base Currency Amount of its participation in any
outstanding Loans; and
(b) the Base Currency Amount of its proportional participation in
any Loans that are due to be made on or before the proposed
Funding Date,
other than such Lender's participation in any Loans that are due to be
repaid or prepaid on or before the proposed Funding Date.
"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).
"Bank Agreement" shall mean the Collection Account Control Agreement
between inter alios the Borrower and the Security Trustee of even date
herewith.
"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 or,
if later, on the date the Agent receives a Request for Borrowing)
adjusted to reflect any repayment, pre-payment, consolidation or
division of the Loans.
"Borrower Bank Accounts" or "Accounts" means the Borrower Sterling
Account and the Borrower Euro Account or either of them as the context
may require (and any renewal or redesignation of such accounts)
maintained with the Account Bank, the Irish Bank Account 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 40183181,
account name AHR Capital MS Limited Euro Account (and any redesignation
of such account).
"Borrower Irish Tax Requirements" shall mean the following:
(a) the Borrower is and shall continue to be resident in the
Republic of Ireland for the purposes of the Irish Taxes Act;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(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 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;
(g) 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;
(h) any material expenses 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
(i) any transaction entered into by the Borrower is not or will
not be entered into by such Borrower for tax avoidance
reasons.
"Borrower Sterling Account" means the sterling denominated Borrower
Bank Account maintained by the Account Bank with account number
40183203, account name AHR Capital MS Limited Sterling 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.
"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 or 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.
"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.
"Corporate Services Agreement" shall mean the Management Agreement
dated January 27th, 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
the date hereof, 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.
"Debenture" shall mean the Debenture to be entered into by, inter
alios, the Borrower in favour of the Security Trustee.
"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 14, 2006.
"Eligible Collateral" shall mean collectively: Mortgage Loans,
Mezzanine Loans, B Notes, Preferred Equity Interests and CMBS 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.
"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.
"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 revolving 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 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 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.
"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 Parent Guaranty and Indemnity executed by
the Guarantor in favour of the Security Trustee of even date herewith.
"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.
"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.
"Intangible Assets" shall mean the excess of the cost over book value
of assets acquired, patents, trademarks, trade names, copyrights,
franchises and other intangible assets (excluding, in any event, the
value of any residual securities and the value of any owned or
purchased mortgage servicing rights).
"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 January 27th, 2006 between the Borrower and BlackRock
Financial Management, Inc.
"Irish Bank Account" means such account in the name of the Borrower
with the Governor and Company of the Bank of Ireland the account number
of which shall be notified by the Borrower to the Security Trustee.
"Irish Taxes Act" has the meaning given to it in Clause 12.1
(Definitions).
"the Lender" shall mean:
(a) Morgan Stanley Bank, a Utah Corporation; and
(b) 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, with respect to all
Loans, a fraction:
(a) the numerator of which shall be the sum of (i) the aggregate
Loans plus (ii) the 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 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) such Loan plus (ii)
the amount of any and all 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 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 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 (other than a Loan in
euros):
(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.
"Loan" shall mean a loan made or to be made under the Facility (and in
the Base Currency) or the principal amount outstanding for the time
being of that loan (and in the Base Currency).
"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 66(2)/3% of the
Total Maximum Credit (or, if the Total Maximum Credit have
been reduced to zero, aggregated more than 66(2)/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 66(2)/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 Original 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
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 Moody's 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 Morgan Stanley & Co. Incorporated, a registered
broker-dealer.
"MS Indebtedness" means any Indebtedness of any Obligor owed to the
Initial 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.
"Optional Currency" shall mean either sterling or euros or any other
currency mutually agreed to by the Borrower and the Agent.
"Optional Currency Amount" means, in relation to a Loan, the amount and
type of Optional Currency specified in a Request for Borrowing for that
Loan (converted from the Base Currency at the Agent's Spot Rate of
Exchange on the date which is three (3) Business Days before the
Funding Date or, if later, on the date the Agent receives the Request
for Borrowing) adjusted to reflect any repayment, pre-payment,
consolidation or division of the Loans.
"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.
"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.
"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 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:
(a) (if the currency is sterling) the first date of that period;
(b) (if the currency is euro) two TARGET Days before the first
date of that period;
(c) (for any other currency) two (2) Business Days before the
first day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"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.
"Reference Banks" shall mean, in relation to LIBOR 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 and, in relation to any other currency, the London interbank
market.
"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).
"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.
"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
McGraw-Hill Companies, Inc. or any successor to its rating business.
"Screen Rate" means in relation to LIBOR, the British Bankers'
Association Interest Settlement Rate for the relevant currency and
period, and displayed on the appropriate page of the Telerate 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.
"the Security Trustee" has the meaning provided in the heading to this
Agreement.
"the Servicer" shall have the meaning provided in Clause 33.1
(Servicing) hereof.
"Servicer Notice" shall have the meaning provided in Clause 33.1
(Servicing) hereof.
"Servicing Agreement" shall have the meaning provided in Clause 33.1
(Servicing) hereof.
"Servicing Records" shall have the meaning provided in Clause 33.1
(Servicing) hereof.
"sterling" or "(pound)" 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 736 of the
Companies Act 1985 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
(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.
"Tangible Net Worth" shall mean, as of a particular date:
(a) all amounts which would be included under equity on the
balance sheet of the Guarantor at such date, determined in
accordance with GAAP, less
(b)
(i) all amounts owing to the Guarantor from Affiliates;
and
(ii) Intangible Assets.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"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).
"Taxes Act" shall mean the Income and Corporation Taxes Act 1988.
"Termination Date" shall mean February 14, 2008 or such earlier date on
which this Agreement may terminate in accordance with its terms or by
operation of law.
"Total Maximum Credit" shall mean the aggregate of the Maximum Credit
being $200,000,000 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.
"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.
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
(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.
1.3 Third party rights
A person who is not a Party has no right under the Contracts (Rights of
Third Parties) Act 1999 to enforce or to enjoy the benefit of any term
of this Agreement.
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 revolving 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, repay and
reborrow 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.
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 on the Effective Date the representations and warranties made by
each Obligor under each Finance Document are true in all material
respects and 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.
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 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,
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.
(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, 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 Error! Reference source not found.
and Error! Reference source not found. 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 Borrower'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.
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.
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, (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 fund 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 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
(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, sterling or euros as the relevant Lender may select in an
amount equal to that Lender'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, 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).
SECTION 5
REPAYMENT, PRE-PAYMENT AND CANCELLATION,
MANDATORY REPAYMENT OR PLEDGE
7. REPAYMENT
The Borrower shall repay the Base Currency Amount of the aggregate
outstanding principal amount of the Loans and all accrued and unpaid
interest thereon on the Termination Date and in the Base Currency.
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 Lender'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). Any such repayment shall be in the Base
Currency and is an amount calculated by the Agent by
converting the amount of the relevant Lender's participation
in such Loan into the Base Currency at the Agent's Spot Rate
of Exchange as at the date which is one (1) Business Day
before the relevant Funding Date of such Loan.
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 the Base
Currency Amount of the aggregate outstanding principal amount
of the Loans will not exceed the Borrowing Base.
(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 17.16 (True and Complete Disclosure) was
true to the Borrower's actual knowledge.
(c) Pre-payment, Amortisation
The Borrower shall utilise all Principal Receipts in
pre-paying the relevant Loan or Loans related to the Eligible
Collateral from which such Principal Receipts have arisen and
in any event shall strictly comply with the provisions of
Clause 19.19 (Remittance of Pre-payments).
(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 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 Lender'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,
the Borrower shall repay that Lender'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) Unless a contrary indication appears in this Agreement, any
part of the Facility which is prepaid may be re-borrowed in
accordance with the terms of this Agreement.
(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.
(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.
(h) For the avoidance of doubt in order to prepay the whole of a
Loan, such Loan will be required to be prepaid in the Base
Currency and in an amount as calculated by the Agent by
converting the aggregate principal amount outstanding of the
relevant Loan into the Base Currency at the Agent's Spot Rate
of Exchange as at the date which was one (1) Business Day
before the relevant Funding Date of such Loan.
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.
SECTION 6
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, 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 in the Base Currency (calculated by converting all such
accrued and unpaid interest into the Base Currency using the Agent's
Spot Rate of Exchange).
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 and in the Base
Currency (calculated by converting all such accrued and unpaid
interest into the Base Currency using the Agent's Spot Rate of
Exchange) on the day of such demand.
(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 is to be
determined by reference to the Reference Banks but a Reference Bank
does not supply a quotation on or about 11am London time on the
Quotation Day, LIBOR 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 practicable 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
Lender'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 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
the relevant 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.
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:
(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
On the date hereof, the Borrower shall pay to the Agent (for the
account of the Lenders) a fee in the Base Currency computed at the rate
of 0.35 per cent. of the Total Maximum Credit.
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 in the Base
Currency on the next succeeding Interest Payment Date.
SECTION 7
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;
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.
(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.
(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.
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.
(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).
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);
(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 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.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
17. REPRESENTATIONS
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) On the Effective Date 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
(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 (euro)630 and each counterpart thereof
and each collateral security document with (euro)12.50, within thirty
(30) days of its execution.
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 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 under the Debenture or any other Finance Document was
acquired (by purchase or otherwise) by the Borrower or 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 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 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 Securities
Exchange Act of 1934 (US) 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).
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
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.
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).
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 17.14 (Jurisdiction of Organisation) or change
its jurisdiction of organisation from the jurisdiction
referred to in Clause 17.14 (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 (except to the extent that
entering into the Finance Documents and the performance of their terms
cause it to be resident) which may result in the Borrower creating an
"establishment" as that term is used in Article 2(h) of the EU
Insolvency Regulation, outside of the Republic of Ireland.
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 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.
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;
(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.
19.21 Borrower Irish Tax Requirements
The Borrower shall fulfil the Borrower Irish Tax Requirements.
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 Financial covenants
Any of the covenants of the Guarantor contained in the Guarantee
relating to the maintenance of its Tangible Net Worth and the
maintenance of the Ratio of Total Indebtedness to Net Worth 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 (Financial covenants); 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.
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
is or proves to have been incorrect or misleading in any material
respect when made or deemed to be made or furnished (other than the
representations and warranties set forth in Schedule 11
(Representations and Warranties Re: Eligible Collateral), which shall
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;
(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).
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 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 Borrower in trust for the
Security Trustee, segregated from other funds of Borrower, and shall
forthwith upon receipt by Borrower be turned over to the Security
Trustee or as the Security Trustee may otherwise direct in the exact
form received by Borrower (duly endorsed by Borrower to the Agent, if
required). For purposes hereof, proceeds shall 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.
SECTION 10
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.
(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.
(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;
(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.
SECTION 11
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
(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.
(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 Lender'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.
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.
(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 Lender 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 Clause 15 (Costs and
expenses) and Clause 23.9 (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 11 (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;
(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:
(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.
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.
SECTION 12
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.
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 (d) and (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 Base Currency amount of such
Loan or Unpaid Sum.
(c) Each payment of interest shall be made in the Base Currency.
(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.
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.
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.
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 28.2 (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.
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 1.1
(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.
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 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 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 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.
SECTION 13
GOVERNING LAW AND ENFORCEMENT
34. GOVERNING LAW
This Agreement is governed by English law.
35. ENFORCEMENT
35.1 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 35.1(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.
35.2 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 35.12 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 other courts
with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
35.3 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 Dechert LLP, (Attention: Andrew Petersen)
counsel to the Borrower and Guarantor 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.