BERMUDA | 98-0501001 |
(State or other jurisdiction of | (I.R.S. Employer |
incorporation or organization) | Identification No.) |
Item 1.01 | Entry into a Material Definitive Agreement |
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
Item 9.01. | Financial Statements and Exhibits. |
(d) | Exhibits. The following exhibits are filed herewith: |
Exhibit No. | Description | |||||
10.1 | Amendment and Restatement Agreement dated November 19, 2013 relating to a $25 million Standby Letter of Credit Facility dated as of 28 November 2007 as amended, among Talbot Holdings Ltd., as Borrower, Validus Holdings, Ltd., as Guarantor, Lloyds Bank plc, as joint Mandated Lead Arranger, Agent, and Security Trustee, and ING Bank N.V., London Branch, as joint Mandated Lead Arranger. |
VALIDUS HOLDINGS, LTD. (Registrant) | ||||
By: | /s/ Robert F. Kuzloski | |||
Name: | Robert F. Kuzloski | |||
Title: | Executive Vice President and General Counsel |
Clause | Page | ||
1. Definitions and interpretation | 1 | ||
2. Restatement | 2 | ||
3. Representations | 3 | ||
4. Continuity and further assurance | 3 | ||
5. Fees, costs and expenses | 3 | ||
6. Miscellaneous | 4 | ||
7. Governing Law | 4 | ||
Schedule 1 Conditions precedent | 5 | ||
Schedule 2 Restated agreement | 8 |
(1) | THE BORROWER (as defined in the Original Facility Agreement); |
(2) | THE GUARANTOR (as defined in the Original Facility Agreement); |
(3) | VALIDUS REINSURANCE, LTD (the "Security Provider"); |
(4) | ING BANK N.V., LONDON BRANCH and LLOYDS BANK PLC as lenders (the "Lenders"); |
(5) | ING BANK N.V., LONDON BRANCH and LLOYDS BANK PLC as mandated lead arrangers and bookrunners (whether acting individually or together, the "Arranger"); |
(6) | LLOYDS BANK PLC as agent of the other Finance Parties other than the Security Trustee (the "Agent"); and |
(7) | LLOYDS BANK PLC as security trustee for the Secured Parties (the "Security Trustee") |
(a) | the Original Facility Agreement is to be amended and restated by way of this Amendment and Restatement Agreement; and |
(b) | the Security Agreement and Account Control Agreement shall be separately re-stated and amended at or around the date of this Agreement. |
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
1.2 | Incorporation of defined terms |
(a) | Unless a contrary indication appears, a term defined in the Original Facility Agreement has the same meaning in this Agreement. |
(b) | The principles of construction set out in the Original Facility Agreement shall have effect as if set out in this Agreement. |
1.3 | Clauses |
1.4 | Third party rights |
1.5 | Designation |
2. | RESTATEMENT |
3. | REPRESENTATIONS |
4. | CONTINUITY AND FURTHER ASSURANCE |
4.1 | Continuing obligations |
4.2 | Confirmation of guarantee obligations |
(a) | remain in full force and effect notwithstanding the amendments referred to in Clause 2 (Restatement); and |
(b) | extend to any new obligations assumed by any Obligor under the Finance Documents as a result of this Agreement (including, but not limited to, under the Restated Agreement). |
4.3 | Further Assurance |
5. | FEES, COSTS AND EXPENSES |
5.1 | Structuring Fee |
5.2 | Arrangement Fee |
5.3 | Agency Fee |
5.4 | Transaction expenses |
6. | MISCELLANEOUS |
6.1 | Incorporation of terms |
6.2 | Counterparts |
7. | GOVERNING LAW |
1. | Corporate Documents |
(a) | A copy of the constitutional documents of each Obligor and each other member of the Group that is party to the 2013 Finance Documents or a certificate from a director or officer of the Guarantor confirming that its constitutional documents and those of the other Obligors delivered to the Agent in connection with the Original Facility Agreement have not been amended and remain correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
(b) | A copy of a resolution of the board of directors of each Obligor and each other member of the Group that is party to the 2013 Finance Documents: |
(i) | approving the terms of, and the transactions contemplated by the 2013 Finance Documents to which it is a party, and resolving that it execute the 2013 Finance Documents to which it is a party; |
(ii) | authorising a specified person or persons to execute the 2013 Finance Documents to which it is a party on its behalf; and |
(iii) | authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the 2013 Finance Documents to which it is a party. |
(c) | A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above. |
(d) | A certificate of the Guarantor (signed by a director or officer of the Guarantor) confirming that neither the execution, delivery and performance by the Guarantor or any of its Significant Subsidiaries that is party to any of the 2013 Finance Documents of any of the 2013 Finance Documents nor compliance with the terms and provisions thereof, nor the consummation of the transactions contemplated therein: |
(i) | will contravene any applicable provision of any law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality; |
(ii) | will conflict or be inconsistent with any existing agreement entered into by the Guarantor or any of its Significant Subsidiaries; |
(iii) | will conflict or be inconsistent with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (other than Liens in favour of the Security Trustee pursuant to the Security Documents) upon any of its property or assets or those of any of its Significant Subsidiaries pursuant to the terms of any material indenture, mortgage, deed of trust, |
(iv) | will violate any provision of its certificate of incorporation, by-laws or other organisational documents, nor those of its Significant Subsidiaries. |
(e) | A certificate of the Guarantor (signed by a director or officer of the Guarantor) certifying that each copy document delivered to the Agent pursuant to paragraphs 1(a), 1(b), 1(d), and 4(c) of this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
(f) | A solvency certificate in respect of the Guarantor and the Security Provider. |
2. | Security Documents |
(a) | The executed amended and restated Security Agreement and Account Control Agreement; |
(b) | All documents and instruments, including UCC financing statements registered or recorded to create and perfect the Liens; |
(c) | The results of a search dated 20 November 2013 of the UCC (or equivalent) filings made in respect to each Obligor in the relevant jurisdictions. |
3. | Legal opinions |
(a) | A legal opinion of Clifford Chance LLP, legal advisers to the Arranger and the Agent in England, substantially in the form distributed to the Lenders prior to signing this Agreement. |
(b) | A legal opinion of Clifford Chance US LLP, legal advisers to the Arranger and the Agent in New York, substantially in the form distributed to the Lenders prior to signing this Agreement. |
(c) | A legal opinion of Conyers, Dill & Pearman, legal advisers to the Arranger and the Agent in Bermuda, substantially in the form distributed to the Lenders prior to signing this Agreement. |
4. | Other documents and evidence |
(a) | A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document. |
(b) | Evidence that each Letter of Credit issued under the Original Facility Agreement has been amended or extended as necessary to give effect to the transaction contemplated under this Agreement. |
(c) | The unaudited consolidated financial statements of the Borrower for its financial year ended 31 December 2012. |
(d) | The audited consolidated financial statements of the Guarantor for its financial year ended 31 December 2012. |
(e) | The executed Fee Letters and evidence that all fees, costs and expenses payable pursuant to those letters and pursuant to Clause 5 (Fees, costs and expenses) have been or will be paid. |
(f) | A statement provided by the Bank of New York in relation to the value of the collateral in the Collateral Accounts as of the date of this Agreement. |
(g) | Evidence that the Security Provider has an A.M. Best financial strength rating of at least "A-". |
(h) | The Letter of Comfort. |
(i) | The Business Plan. |
(j) | A certificate of compliance issued no more than three days prior to the date of this Agreement by the Bermuda Registrar of Companies in respect of each Obligor and each other member of the Group that is party to the 2013 Finance Documents. |
Clause | Page | ||
1. | Definitions and Interpretation | 1 | |
2. | The Facility | 31 | |
3. | Utilisation of the Facility | 33 | |
4. | Letter of Credit Commission | 37 | |
5. | Market Disruption and Alternative Interest Rates | 37 | |
6. | Notification | 38 | |
7. | Borrower's Indemnity to the Lenders | 39 | |
8. | Prepayment and Cancellation | 41 | |
9. | Collateralisation of Letters of Credit | 42 | |
10. | Commitment Increase Request | 43 | |
11. | Tax Gross Up and Indemnities | 46 | |
12. | Increased Costs | 49 | |
13. | Illegality | 52 | |
14. | Other Indemnities | 52 | |
15. | Mitigation | 55 | |
16. | Commitment Commission and Fees | 56 | |
17. | Costs and Expenses | 57 | |
18. | Default Interest and Break Costs | 58 | |
19. | Guarantee and Indemnity | 61 | |
20. | Representations | 65 | |
21. | Information Undertakings | 74 | |
22. | Financial Condition | 80 | |
23. | General Undertakings | 83 | |
24. | Events of Default | 98 | |
25. | Changes to the Lenders | 103 | |
26. | Changes to the Obligors | 107 | |
27. | Role of the Agent and the Arranger | 111 | |
28. | Role of Security Trustee | 120 | |
29. | Conduct of business by the Finance Parties | 130 | |
30. | Sharing among the Finance Parties | 130 | |
31. | Payment Mechanics | 133 | |
32. | Set-Off | 137 | |
33. | Application of Proceeds | 137 | |
34. | Notices | 139 |
35. | Calculations and Certificates | 142 | |
36. | Partial Invalidity | 142 | |
37. | Remedies and Waivers | 142 | |
38. | Counterparts | 142 | |
39. | Amendments and Waivers | 143 | |
40. | Counterparts | 144 | |
41. | USA Patriot Act | 144 | |
42. | Governing Law | 145 | |
43. | Enforcement | 145 | |
44. | Waiver of Jury Trial | 145 | |
45. | Confidentiality | 146 | |
Schedule 1 The Original Lenders | 151 | ||
Schedule 2 Conditions Precedent | 152 | ||
Part I Conditions Precedent to Initial Utilisation | 152 | ||
Part II Conditions Precedent required to be delivered by an Additional Obligor | 155 | ||
Schedule 3 Form of Utilisation Request | 157 | ||
Schedule 4 Form of Transfer Certificate | 158 | ||
Schedule 5 Form of Credit Institution Confirmation | 161 | ||
Schedule 6 Form of Letter of Credit | 162 | ||
Schedule 7 Letter of Comfort | 167 | ||
Schedule 8 Eligible Collateral Table | 168 | ||
Schedule 9 Form of Borrowing Base Certificate | 170 | ||
Schedule 10 Existing Liens | 172 | ||
Schedule 11 Existing Intercompany Arrangements and Agreements | 173 | ||
Schedule 12 Permitted Subsidiary Indebtedness | 174 | ||
Schedule 13 Subsidiaries | 175 | ||
Schedule 14 Existing Affiliate Transactions | 180 | ||
Schedule 15 Additional Lender Accession Letter | 181 | ||
Schedule 16 Form of Obligor Accession Letter | 183 | ||
Schedule 17 Form of Obligor Resignation Letter | 185 |
(8) | TALBOT HOLDINGS LTD. as original borrower (the "Original Borrower"); |
(9) | VALIDUS HOLDINGS, LTD. as original guarantor (the "Original Guarantor"); |
(10) | ING BANK N.V., LONDON BRANCH and LLOYDS BANK PLC as mandated lead arranger(s) (whether acting individually or together, the "Arranger"); |
(11) | LLOYDS BANK PLC as structuring agent (the "Structuring Agent"); |
(12) | LLOYDS BANK PLC as agent of the other Finance Parties other than the Security Trustee (the "Agent"); |
(13) | LLOYDS BANK PLC as Security Trustee for the Secured Parties (the "Security Trustee"); and |
(14) | THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders (the "Original Lenders"). |
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
(a) | a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or A3 or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or |
(b) | any other bank or financial institution approved by the Agent. |
(a) | the insurance department or similar administrative authority or agency located in each state or jurisdiction (foreign or domestic) in which such Regulated Insurance Company is domiciled; or |
(b) | to the extent asserting regulatory jurisdiction over such Regulated Insurance Company, the insurance department, authority or agency in each state or jurisdiction (foreign or domestic) in which such Regulated Insurance Company is licensed, |
(a) | any reduction in the Commitment of a Lender pursuant to the terms hereof; |
(b) | the Base Currency Amount of any Letter of Credit which pursuant to any other utilisation, is to be issued; and |
(c) | the Base Currency Amount of any Letter of Credit which is due to expire or returned as cancelled, |
(a) | any structured insurance product, catastrophe bond, rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, commodity hedge, equity or equity index swap, equity or equity index option, bond option, interest rate option or hedge, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or swap transaction, credit protection transaction, credit swap, credit default swap (including single default, single-name, basket and first-to-default swaps), credit default option, equity default swap, total return swap, credit-linked notes, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sellback transaction, securities lending transaction, weather index transaction, emissions allowance transaction, or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions); |
(b) | any transaction which is a type of transaction that is similar to any transaction referred to in paragraph (a) above that is currently, or in the future becomes, recurrently entered into in the financial markets; |
(c) | any combination of the transactions referred to in paragraphs (a) and (b) above; and |
(d) | any master agreement relating to any of the transactions referred to in paragraphs (a), (b) or (c) above. |
(a) | securities issued or directly and fully guaranteed or insured by the US or any agency or instrumentality thereof (provided that the full faith and credit of the US is pledged in support thereof) having maturities of not more than one year from the date of acquisition; |
(b) | time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company organised under the laws of the US, any state thereof, the District of Columbia or any foreign jurisdiction having, capital, surplus and undivided profits aggregating in excess of $200,000,000, with maturities of not more than one year from the date of acquisition by such person; |
(c) | repurchase obligations with a term of not more than 90 days for underlying securities of the types described in paragraph (a) above entered into with any bank meeting the qualifications specified in paragraph (b) above; |
(d) | commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's and in each case maturing not more than one year after the date of acquisition by such person; |
(e) | obligations of obligors organised outside the US (including sovereign nations), which obligations are correlative in type, maturity and rating as those set forth in paragraphs (a) through (d) above; and |
(f) | investments in "money market funds" within the meaning of Rule 2a-7 of the Investment Company Act of 1940 of the US, as amended, substantially all of whose assets are comprised of securities of the types described in paragraphs (a) through (e) above. |
(a) | the Original Borrower or Validus Reinsurance, Ltd. cease to be a Wholly-Owned Subsidiary of the Original Guarantor; |
(b) | any person, including any syndicate or group deemed to be a person under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, acquires beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of capital stock of the Original Guarantor entitling such person to exercise 50% or more of the total voting power of all shares of capital stock of the Original Guarantor that is entitled to vote generally in elections of directors, other than an acquisition by the Original Guarantor, any of its subsidiaries or any employee benefit plans of the Original Guarantor; or |
(c) | a majority of the members of the Original Guarantor's board of directors are persons who are then serving on the board of directors without having been nominated or otherwise approved in writing by at least a majority of the individuals who constituted the board of directors of the Original Guarantor as of the date hereof (or their replacements as herein required) |
(a) | in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Commitment" in Schedule 1 (The Original Lenders); and |
(b) | in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement, |
(a) | any member of the Group or any of its advisers; or |
(b) | another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers, |
(i) | is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 44 (Confidentiality); or |
(ii) | is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or |
(iii) | is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. |
(a) | to vote 10% or more of the voting power of the securities having ordinary voting power for the election of directors of such person; or |
(b) | to direct or cause the direction of the management or policies of a person, whether through the ability to exercise voting power, by contract or otherwise, |
(a) | failed to fund any portion of its participations in Letters of Credit within three (3) Business Days of the date required to be funded by it hereunder; |
(b) | notified the Original Borrower or the Agent in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements generally in which it commits to extend credit; or |
(c) | (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganisation or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganisation or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment. |
(a) | a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or |
(b) | the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party: |
(i) | from performing its payment obligations under the Finance Documents; or |
(ii) | from communicating with other Parties in accordance with the terms of the Finance Documents, |
(a) | Investment Grade Municipal Bonds; and |
(b) | Investment Grade Non-Convertible U.S. Corporate Bonds. |
(a) | its violation of any Environmental Law; |
(b) | its generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials; |
(c) | its exposure to any Hazardous Materials; |
(d) | its release or threatened release of any Hazardous Materials into the environment; or |
(e) | any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing, |
(a) | sections 1471 to 1474 of the Code or any associated regulations or other official guidance; |
(b) | any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or |
(c) | any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. |
(a) | it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment; |
(b) | the Agent otherwise rescinds or repudiates a Finance Document; |
(c) | (if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a), (b) or (c) of the definition of "Defaulting Lender"; or |
(d) | an Insolvency Event has occurred and is continuing with respect to the Agent; |
(i) | its failure to pay is caused by: |
(A) | administrative or technical error; or |
(B) | a Disruption Event; and |
(ii) | the Agent is disputing in good faith whether it is contractually obliged to make the payment in question. |
(a) | all obligations of such person for borrowed money or with respect to deposits or advances of any kind; |
(b) | all obligations of such person evidenced by bonds, debentures, notes or similar instruments; |
(c) | all obligations of such person upon which interest charges are customarily paid and treated as interest expense under GAAP; |
(d) | all obligations of such person under conditional sale or other title retention agreements relating to property acquired by such person; |
(e) | all obligations of such person in respect of the deferred purchase price of property or services (excluding current ordinary course trade accounts payable); |
(f) | all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such person, whether or not the Indebtedness secured thereby has been assumed, provided that the amount of Indebtedness of such person shall be the lesser of (i) the fair market value of such property at such date of determination (determined in good faith by the Original Guarantor) and (ii) the amount of such Indebtedness of such other person; |
(g) | all Guarantees by such person of Indebtedness of others; |
(h) | all Capital Lease Obligations of such person; |
(i) | all obligations (or to the extent netting is permitted under the applicable agreement governing such Capital Markets Products and such netting is limited with respect to the counterparty or counterparties of such agreement, all net termination obligations) of such person under transactions in Capital Markets Products; and |
(j) | all reimbursement obligations of such person in respect of letters of credit, letters of guaranty, bankers' acceptances and similar credit transactions; provided that, Indebtedness shall not include any preferred (including without limitation trust preferred) or preference securities or Hybrid Capital to the extent such preferred or preference securities or Hybrid Capital would be treated as equity under the applicable procedures and guidelines of S&P as of the date of this Agreement. |
(a) | is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
(b) | becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; |
(c) | makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
(d) | institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official; |
(e) | has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and: |
(i) | results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or |
(ii) | is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; |
(f) | has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); |
(g) | seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above); |
(h) | has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; |
(i) | causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or |
(j) | takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. |
(a) | the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Unpaid Sum; and |
(b) | the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Unpaid Sum, |
(a) | for any period in which all or any part of Borrowing Base consists of Eligible Investment Grade Securities, 0.35 per cent. per annum; and |
(b) | at any other time, 0.30 per cent. per annum. |
(a) | the principle that equitable remedies may be granted or refused at the discretion of a court and the limitations imposed by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors or (as the case may be) secured creditors; |
(b) | the time barring of claims, the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim; |
(c) | similar principles, rights and defences under the laws of any other jurisdiction; and |
(d) | any other matters which are set out as qualifications or reservations as to matters of law of general application in the legal opinions delivered to any of the Finance Parties in connection with the Finance Documents. |
(a) | named in Schedule 1 (The Original Lenders); or |
(b) | which has become a party hereto in accordance with Clause 25 (Changes to the Lenders), |
(a) | the applicable Screen Rate; |
(b) | (if no Screen Rate is available for the Interest Period of that Unpaid Sum) the Interpolated Screen Rate for that Unpaid Sum; or |
(c) | if: |
(i) | no Screen Rate is available for the currency of that Unpaid Sum; or |
(ii) | no Screen Rate is available for the Interest Period of that Unpaid Sum and it is not possible to calculated an Interpolated Screen Rate for that Unpaid Sum, |
(a) | any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset; |
(b) | the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; and |
(c) | in the case of securities, any purchase option, call or similar right of a third party with respect to such securities. |
(a) | so long as a Lender is a Defaulting Lender, the Commitments of such Lender shall not be included in determining whether the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Clause 39 (Amendments and Waivers)); and |
(b) | any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender. |
(a) | the business, operations, assets, liabilities or financial condition of the Group taken as a whole; |
(b) | the ability of the Obligors or any other member of the Group that is party to any Finance Document to perform their material or payment obligations under the Finance Documents; or |
(c) | the validity or enforceability of the Finance Documents or the rights or remedies of any Finance Party under the Finance Documents. |
(a) | any treasury stock; and |
(b) | the amount of the effects of Financial Accounting Statement No. 115 (which amount is shown on the Original Guarantor's 31 December 2006 balance sheet under the caption "Accumulated other comprehensive income" and which, after adoption of Financial Accounting Statements Nos. 157 and 159 will be measured as the difference between investments carried at estimated fair value and investments carried at amortised cost). |
(a) | in relation to the Original Borrower, its audited consolidated financial statements for its financial year ended 31 December 2012; and |
(b) | in relation to the Original Guarantor, its audited consolidated financial statements for its financial year ended 31 December 2012. |
(a) | Indebtedness of any subsidiary of the Original Guarantor under the Finance Documents or existing on the date hereof and listed on Schedule 12 (Permitted Subsidiary Indebtedness) and extensions, renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness: |
(i) | shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced; |
(ii) | shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon and reasonable refinancing or renewal expenses); |
(iii) | shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced; and |
(iv) | shall be subordinated to the obligations of the Guarantors in respect of this Agreement on the same terms (if any) as the Indebtedness being extended, renewed or replaced; |
(b) | Indebtedness of any subsidiary of the Original Guarantor incurred in the ordinary course of business in connection with any Capital Markets Product that are not entered into for speculative purposes; |
(c) | Indebtedness owed by subsidiaries of the Original Guarantor to the Original Guarantor or any of its subsidiaries; |
(d) | Indebtedness of any subsidiary of the Original Guarantor incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by any subsidiary of the Original Guarantor in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that: |
(i) | such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement; and |
(ii) | the aggregate principal amount of Indebtedness permitted by this paragraph (d) shall not exceed $10,000,000 at any time outstanding; |
(e) | Indebtedness of any subsidiary of the Original Guarantor in respect of letters of credit issued to reinsurance cedents, or to lessors of real property in lieu of security deposits in connection with leases of any subsidiary of the Original Guarantor, in each case in the ordinary course of business; |
(f) | Indebtedness of any subsidiary of the Original Guarantor incurred in the ordinary course of business in connection with workers' compensation claims, self-insurance obligations, unemployment insurance or other forms of governmental insurance or benefits and pursuant to letters of credit or other security arrangements entered into in connection with such insurance or benefit; |
(g) | Indebtedness under the Four-Year Secured Letter of Credit Facility, Indebtedness under the Four-Year Unsecured Letter of Credit Facility, Indebtedness under the Citi Facility, Indebtedness under the IPC Facility, Indebtedness under the Flagstone Facility and Indebtedness under the Pac Re Facility; |
(h) | Indebtedness arising under any Syndicate Arrangement; |
(i) | without duplication, additional Indebtedness of subsidiaries of the Original Guarantor not otherwise permitted under paragraphs (a) through (h), (j) or (k) of this definition which, when added to the aggregate amount of all Liens (other than with respect to Indebtedness incurred pursuant to this paragraph (i)) incurred by the Original Guarantor pursuant to sub-clause 23.15.26 of Clause 23.15 (Liens), shall not exceed at any time outstanding 5 per cent. of Consolidated Net Worth at the time of incurrence of any new Indebtedness under this paragraph (i); provided that immediately after giving effect (including pro forma effect) to the incurrence of any Indebtedness pursuant to this paragraph (i), no Event of Default shall have occurred and be continuing; |
(a) | the proportion borne by its Commitment to the Total Commitments (or, if the Total Commitments are then zero, by its Commitment to the Total Commitments immediately prior to their reduction to zero); and |
(b) | in respect of any Letter of Credit and save as otherwise provided herein, the proportion (expressed as a percentage) borne by such Lender's Available Commitment to the Available Facility immediately prior to the issue of such Letter of Credit. |
(a) | (if the currency is domestic sterling) the first day of that period; or |
(b) | (for dollars or any other currency) two Business Days before the first day of that period, |
(a) | the fair value of its assets exceeds the amount of its liabilities (in each case, as would be reflected on a balance sheet prepared in accordance with GAAP); and |
(b) | such person does not intend to incur debts beyond their ability to pay such debts as they mature (taking into account the timing and amounts of cash to be received by such person, and of amounts to be payable on or in respect of debt of such person). |
(a) | so long as a Lender is a Defaulting Lender, the Commitments of such Lender shall not be included in determining whether the Super-Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Clause 39 (Amendments and Waivers)); and |
(b) | any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender. |
(a) | the proposed Transfer Date specified in the Transfer Certificate; and |
(b) | the date specified by the Agent to the Existing Lender and the New Lender upon execution by the Agent of the Transfer Certificate. |
1.2 | Interpretation |
1.2.1 | the "Agent", "Structuring Agent", the "Arranger", the "Security Trustee", any "Finance Party", any "Secured Party", any "Lender", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Security Trustee, any person for the time being appointed as Security Trustee or Security Trustees in accordance with this Agreement; |
1.2.2 | a document in "agreed form" is a document which is initialled by or on behalf of the Original Borrower and the Agent; |
1.2.3 | a default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been remedied or waived; |
1.2.4 | the "equivalent" on any date in one currency (the "first currency") of an amount denominated in another currency (the "second currency") is a reference to the amount of the first currency which could be purchased with the amount of the second currency at the Agent's Spot Rate of Exchange on such date for the purchase of the first currency with the second currency; |
1.2.5 | a "holding company" of a company or corporation shall be construed as a reference to any company or corporation of which the first-mentioned company or corporation is a subsidiary; |
1.2.6 | a "member" shall be construed (when the context so requires) as a reference to an underwriting member of Lloyd's; |
1.2.7 | a "month" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month save that, where any such period would otherwise end on a day which is not a Business Day, it shall end on the next succeeding Business Day, unless that day falls in the calendar month succeeding that in which it would otherwise have ended, in which case it shall end on the immediately preceding Business Day, provided that, if a period starts on the last Business Day in a calendar month or if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that later month (and references to "months" shall be construed accordingly); |
1.2.8 | a Lender's "participation", in relation to a Letter of Credit, shall be construed as a reference to the rights and obligations of such Lender in relation to such Letter of Credit as are expressly set out in this Agreement; |
1.2.9 | a "person" shall be construed as a reference to any natural person, firm, company, corporation, limited liability company, trust, joint venture, government, state or agency of a state (including any Governmental Authority), any association or partnership (whether or not having separate legal personality) of two or more of the foregoing or any other entity; |
1.2.10 | "subsidiary" means, with respect to any person (the "parent") at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent's consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent provided that neither 1384 Capital Limited nor the Talbot Employee Benefit Trust shall be a subsidiary of any parent for the purposes of this Agreement; |
1.2.11 | a "successor" shall be construed so as to include an assignee or successor in title of such party and any person who under the laws of its jurisdiction of incorporation or domicile has assumed the rights and obligations of such party under this Agreement or to which, under such laws, such rights and obligations have been transferred; |
1.2.12 | "VAT" shall be construed as a reference to value added tax including any similar tax which may be imposed in place thereof from time to time; and |
1.2.13 | the "winding-up", "dissolution" or "administration" of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors. |
1.3 | Syndicate |
1.4 | Currency Symbols |
1.5 | Agreements and Statutes |
1.5.1 | this Agreement or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document as the same may have been, or may from time to time be, amended, restated, varied, novated or supplemented; |
1.5.2 | a statute or treaty shall be construed, unless the context otherwise requires, as a reference to such statute or treaty as the same may have been, or may from time to time be, amended or, in the case of a statute, re-enacted; and |
1.5.3 | a byelaw shall be construed as a reference to a byelaw made under Lloyd's Acts 1871 to 1982 as the same may have been, or may from time to time be, amended or replaced. |
1.6 | Headings |
1.7 | Time |
1.8 | Third Party Rights |
2. | THE FACILITY |
2.1 | Grant of the Facility |
2.2 | Purpose and Application |
2.3 | Ranking of Funds at Lloyd's |
2.4 | Application of Own FAL |
2.5 | Initial Conditions Precedent |
2.6 | Further conditions precedent |
2.6.1 | no Default is continuing or would result from the issue of the proposed Letter of Credit; and |
2.6.2 | the Repeated Representations are true in all material respects with the same effect as though such Repeated Representations had been made on the date of the Utilisation Request and on the Utilisation Date (it being understood and agreed that any Repeated Representation which by its terms is made as of a specified date shall be required to be true in all material respects only as of such specified date). |
2.7 | Several Obligations |
2.8 | Several Rights |
3. | UTILISATION OF THE FACILITY |
3.1 | Utilisation Conditions for the Facility |
3.1.1 | no less than three Business Days before the proposed Utilisation Date, the Agent has received a completed Utilisation Request from such Borrower; |
3.1.2 | the proposed Utilisation Date is a Business Day falling within the Availability Period; |
3.1.3 | the first day of the Term of the Letter of Credit is a Business Day falling within the Availability Period; |
3.1.4 | the proposed Expiry Date of the Letter of Credit shall be: |
(a) | in the case of any Letter of Credit providing Funds at Lloyd's for the 2014 and prior open underwriting years of account of the Managed Syndicate only, 31 December 2017; and |
(b) | in the case of any Letter of Credit providing Funds at Lloyd's for the 2015 and prior open underwriting years of account of the Managed Syndicate only, 31 December 2018; |
3.1.5 | the Letter of Credit is substantially in the form set out in Schedule 6 (Form of Letter of Credit); |
3.1.6 | the beneficiary of such Letter of Credit is Lloyd's; and |
3.1.7 | the conditions set out in Clause 3.2 (Currency and amount) are satisfied, |
3.2 | Currency and amount |
3.2.1 | The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency. |
3.2.2 | The amount of the proposed Letter of Credit must be: |
(a) | if the currency selected is the Base Currency, a minimum of $1,000,000 or if less, the Available Facility; or |
(b) | if the currency selected is the Optional Currency, a minimum of £500,000 or if less, the Available Facility; and |
(c) | in any event such that its Base Currency Amount is less than or equal to the Available Facility. |
3.3 | Completion of Letters of Credit |
3.3.1 | completing the issue date, the proposed Expiry Date and the other details required in respect of such Letter of Credit, in accordance with the Utilisation Request for such Letter of Credit; |
3.3.2 | completing the schedule to such Letter of Credit with the percentage participation of each Lender as allocated pursuant to the terms hereof; and |
3.3.3 | executing such Letter of Credit on behalf of each Lender and following such execution delivering such Letter of Credit together with a Credit Institution Confirmation with respect to each Lender to Lloyd's on the Utilisation Date, |
3.4 | Each Lender's Participation in Letters of Credit |
3.5 | Lloyd's Approved Credit Institution |
3.5.1 | Each Lender acknowledges that the Agent must provide a Credit Institution Confirmation to Lloyd's with each Letter of Credit. |
3.5.2 | For the purposes of the Agent providing such Credit Institution Confirmation to Lloyd's, each Lender confirms, on the date of this Agreement and on the date of issue of any Letter of Credit, that, subject to compliance with the terms of this Agreement for the utilisation of a Letter of Credit: |
(a) | it hereby authorises the execution and delivery by the Agent of each Letter of Credit and each such Letter of Credit will be duly executed by the Agent on its behalf; and |
(b) | its obligations under any Letter of Credit constitute its legal, valid and binding obligations. |
3.5.3 | In the event that any Lender participating in the Facility ceases to be an Approved Credit Institution, following notification by Lloyd's to an Obligor, that Obligor shall notify the Arrangers thereof and the Arrangers, in consultation with the Original Borrower, will, subject to agreement relating to fees and expenses, use their reasonable endeavours to replace the participation of such Lender in the Facility and in any Letter of Credit issued hereunder with one or more of the other Lenders or with another Approved Credit Institution. In the event that any such Lender ceases to be so accredited it shall, at the request of the Agent, transfer (in accordance with Clause 25 (Changes to the Lenders)) its Commitment and participation in outstanding Letters of Credit to such financial institution which is accredited by Lloyd's and which has been agreed by the Arrangers and the Original Borrower. The Original Borrower agrees to reimburse the Agent and the Arrangers for all fees, costs and expenses (including legal fees) together with any VAT thereon incurred in connection with such replacement of a Lender's participation. |
3.5.4 | In the event that any Lender participating in the Facility is a Defaulting Lender, following a request by the Original Borrower, (i) the Agent, at the request of and in consultation with the Original Borrower, shall, subject to reaching prior agreement with the Original Borrower in relation to fees and expenses, use reasonable endeavours to replace the participation of such Lender in the Facility and in any Letter of Credit issued hereunder with one or more of the other Lenders (if any other such Lender is willing to accept all or part of such participation) or with another financial institution that is an Approved Credit Institution and (ii) such Lender shall (in accordance with the provisions of Clause 25 (Changes to the Lenders)) transfer its Commitment and participation in outstanding Letters of Credit to such financial institution which has been agreed between the Agent and the Original Borrower. The Original Borrower agrees to reimburse the Finance Parties for all fees, costs and expenses (including legal fees) together with any VAT thereon incurred in connection with such replacement of a Lender's participation. |
3.6 | Expiry of Availability Period |
3.7 | Notice of Non-Extension in respect of Letters of Credit |
3.7.1 | The Agent shall, no earlier than: |
(a) | in the case of any Letter of Credit providing Funds at Lloyd's for the 2014 and prior open underwriting years of account of the Managed Syndicate only, 1 December 2013 and no later than 31 December 2013, give a Notice of Non-Extension to Lloyd's in respect of such Letter of Credit issued hereunder (and the Lenders hereby authorise the Agent to serve such notice) so that each such Letter of Credit expires at any time after 31 December 2017; or |
(b) | in the case of any Letter of Credit providing Funds at Lloyd's for the 2015 and prior open underwriting years of account of the Managed Syndicate only, 1 December 2014 and no later than 31 December 2014, give a Notice of Non-Extension to Lloyd's in respect of such Letter of Credit issued hereunder (and the Lenders hereby authorise the Agent to serve such |
3.7.2 | In the event that any Letter of Credit is issued after a Notice of Non-Extension has been given under sub-clause 3.7.1 above the Agent shall give a Notice of Non-Extension in respect of such Letter of Credit at the time such Letter of Credit is issued. |
3.7.3 | Upon the expiry of a Letter of Credit in accordance with a Notice of Non-Extension, the maximum actual and contingent liabilities of each Lender under the Letter of Credit referred to in such Notice of Non-Extension will be reduced to zero. |
3.8 | Applied Letters of Credit |
3.8.1 | a supplementary Letter of Credit will be issued in an amount equal to the Overpayment having an Expiry Date which is the same as that of the Applied Letter of Credit; or |
3.8.2 | the Applied Letter of Credit will be amended by increasing the amount thereof by an amount equal to the Overpayment. |
4. | LETTER OF CREDIT COMMISSION |
4.1 | Letter of Credit Commission |
4.2 | Defaulting Lenders |
5. | MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES |
5.1 | Absence of quotations |
5.2 | Market Disruption |
5.2.1 | LIBOR is to be determined by reference to Reference Banks and at or about 11.00 a.m. on the Quotation Day for the relevant Interest Period none or only one of the Reference Banks supplies a rate for the purpose of determining LIBOR for the relevant Interest Period; or |
5.2.2 | before the close of business in London on the Quotation Day for such Unpaid Sum the Agent has been notified by a Lender or each of a group of Lenders to whom in aggregate fifty per cent. or more of such Unpaid Sum is owed that the LIBOR rate does not accurately reflect the cost of funding its participation in such Unpaid Sum, |
5.3 | Substitute Interest Period and Interest Rate |
5.4 | Alternative basis of interest or funding |
5.4.1 | If either of those events mentioned in sub-clauses 5.2.1 and 5.2.2 of Clause 5.2 (Market Disruption) occurs in relation to an Unpaid Sum and the Agent or the Original Borrower so requires, the Agent and the Original Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing on a substitute basis for determining the rate of interest. |
5.4.2 | Any alternative basis agreed pursuant to sub-clause 5.4.1 above shall, with the prior consent of all the Lenders and the Original Borrower, be binding on all Parties. |
5.5 | Interest Rate Determination |
5.6 | Changes to Interest Rates |
5.6.1 | the proposed length of an Interest Period; or |
5.6.2 | any interest rate occasioned by the operation of Clause 4.2 (Market Disruption and Alternative Interest Rates). |
6. | NOTIFICATION |
6.1 | Letters of Credit |
6.1.1 | the proposed length of the relevant Term; |
6.1.2 | the proposed currency; |
6.1.3 | the aggregate principal amount; and |
6.1.4 | the Utilisation Date. |
6.2 | Demands under Letters of Credit |
7. | BORROWER'S INDEMNITY TO THE LENDERS |
7.1 | Borrowers' Indemnity to Lenders |
7.1.1 | any sum paid or due and payable by such Finance Party under any Letter of Credit requested by it; and |
7.1.2 | all liabilities, costs (including, without limitation, any costs incurred in funding any amount which falls due from such Lender in connection with such Letter of Credit), claims, losses and expenses which such Finance Party may at any time reasonably incur or sustain in connection with any Letter of Credit (in each case, invoiced in reasonable detail), |
7.2 | Preservation of Rights |
7.2.1 | the winding-up, dissolution, administration or re-organisation of any Lender or any other person or any change in its status, function, control or ownership; |
7.2.2 | any of the obligations of any Lender or any other person hereunder or under any Letter of Credit or under any other security taken in respect of any Borrower's obligations hereunder or otherwise in connection with a Letter of Credit being or becoming illegal, invalid, unenforceable or ineffective in any respect; |
7.2.3 | time or other indulgence being granted or agreed to be granted to any Lender or any other person in respect of its obligations hereunder or under or in connection with a Letter of Credit or under any such other security; |
7.2.4 | any amendment to, or any variation, waiver or release of, any obligation of any Lender or any other person under a Letter of Credit or this Agreement; |
7.2.5 | any other act, event or omission which, but for this Clause 7, might operate to discharge, impair or otherwise affect any of the obligations of the relevant Borrower set out in this Clause 7 or any of the rights, powers or remedies conferred upon any Lender by this Agreement or by law. |
7.3 | Settlement Conditional |
7.4 | Right to make Payments under Letters of Credit |
8. | PREPAYMENT AND CANCELLATION |
8.1 | Automatic Cancellation of the Facility |
8.2 | Cancellation of the Facility |
8.3 | Notice of Cancellation |
8.4 | Notice of Removal of a Lender |
8.4.1 | any sum payable to any Lender by an Obligor is required to be increased pursuant to Clause 11 (Tax Gross-up and Indemnities); |
8.4.2 | any Lender claims indemnification from the Original Borrower under Clause 11.3 (Tax Indemnity) or Clause 12 (Increased Costs), |
8.5 | Removal of a Lender |
8.6 | No Further Availability |
8.7 | No Other Cancellation |
8.8 | No Reinstatement |
9. | COLLATERALISATION OF LETTERS OF CREDIT |
9.1 | Letters of Credit |
9.1.1 | Without prejudice to the remainder of this Clause 9, the Borrowers shall ensure that at all times, the Borrowing Base is equal to or greater than the Outstandings. |
9.1.2 | If at any time the Outstandings exceed the Borrowing Base, then the Obligors shall, within three Business Days of the earlier of any Obligor becoming aware of such shortfall or such shortfall being notified by the Agent to any Obligor, pay or deliver to the Custodian an amount of Cash or Eligible Securities (valued for this purpose based on the respective Advance Rate applicable thereto) as is necessary to satisfy the foregoing. |
9.1.3 | Failure by the Obligors to comply with their obligations under sub-clause 9.1.2 above within ten (10) Business Days of the earlier of any Obligor becoming aware or receiving notice that the Outstandings exceed the Borrowing Base shall constitute an immediate and automatic Event of Default under the terms and conditions of this Agreement. |
9.1.4 | Notwithstanding the frequency of the reporting obligations set forth in Clause 21.8 (Borrowing Base Certificate), this covenant shall apply at all times and shall be tested by reference to the Borrowing Base Certificate most recently supplied in accordance with that Clause. |
9.2 | Mandatory Cash Collateralisation |
10. | COMMITMENT INCREASE REQUEST |
10.1 | Commitment Increase Request |
10.1.1 | The Original Borrower may, on one occasion only and by written notice served on the Agent (such notice being, a "Commitment Increase Request"), indicate that it wishes to increase the Total Commitments (a "Requested Increase") by an amount of no less than $2,000,000 and thereafter in integral multiples of $500,000 up to a maximum of US$7,500,000. |
10.1.2 | Such Commitment Increase Request shall be binding on each of the Obligors and delivered to the Agent no later than the date falling 12 months after the date of the Amendment Agreement. |
10.2 | Commitment Increase Fee |
10.3 | Notification of Commitment Increase Request |
10.4 | Decline of Commitment Increase Request |
10.5 | Approval of Commitment Increase Request |
10.5.1 | the Commitment of each relevant Lender shall be increased by an amount equal to the portion of the Requested Increase it has indicated it is prepared to assume; and |
10.5.2 | in respect of an Additional Lender which is not a Lender, a Commitment shall be established for such amount, provided that such Additional Lender has acceded to this Agreement as a Lender in accordance with the terms of Clause 25.7 (Additional Lenders), |
10.6 | Partial approval of Commitment Increase Request |
10.6.1 | the Original Borrower and the Accepting Parties shall be entitled, by notice to the Agent no later than 30 Business Days following receipt by the Agent of the relevant Commitment Increase Request, to accept an increase in Commitment in such lower amount, whereupon with effect from the Increase Date: |
(a) | the Commitment of each relevant Lender shall be increased by an amount equal to the portion of the Requested Increase it has indicated it is prepared to assume; and |
(b) | in respect of an Additional Lender which is not a Lender, a Commitment shall be established for such amount of the Requested Increase it has indicated it is prepared to assume, provided that such Additional Lender has first acceded to this Agreement as a Lender in accordance with the terms of Clause 25.7 (Additional Lenders), |
10.6.2 | the Original Borrower shall be entitled, by notice to the Agent no later than 30 Business Days following receipt by the Agent of the relevant Commitment Increase Request, to cancel the Commitment Increase Request (without incurring any cost, premium or penalty). |
10.7 | Increase Date |
10.7.1 | the date on which the Agent confirms to the Original Borrower and the Lenders that the Agent, having contacted Lloyd's to advise that a re-apportionment of commitments will be required in respect of a Letter of Credit and requesting the return of the relevant Letter of Credit (the "Existing Letter of Credit"), is satisfied that arrangements are in place with Lloyd's for the exchange of the Existing Letter of Credit for a new Letter of Credit (the "New Letter of Credit") detailing the liability of each issuing lender thereunder and otherwise being: |
(a) | for the same amount of the Existing Letter of Credit (in the case of Clause 10.5 (Approval of Commitment Increase Request) above) or for a lesser amount (in the case of Clause 10.6 (Partial approval of Commitment Increase Request) above); and |
(b) | otherwise on the same terms as the Existing Letter of Credit for the remainder of the Term of such Existing Letter of Credit, |
10.7.2 | if, in connection with any Requested Increase, the Agent determines that no re-apportionment of commitments is required in respect of any Letter of Credit, the date falling 5 Business Days after the date on which the Agent notifies the Original Borrower in writing that it has received the relevant acceptances of the Requested Increase from the Lenders. |
11. | TAX GROSS UP AND INDEMNITIES |
11.1 | Definitions |
11.1.1 | In this Agreement: |
(a) | as being resident for tax purposes; or |
(b) | as having a place of business, place of management or permanent establishment, in a jurisdiction other than that in which that Borrower is resident. |
11.1.2 | Unless a contrary indication appears, in this Clause 11 a reference to "determines" or "determined" means a determination made in the discretion (reasonably exercised) of the person making the determination. |
11.2 | Tax gross-up |
11.2.1 | Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law. |
11.2.2 | The Original 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 the Original Borrower and the relevant Obligor. |
11.2.3 | 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 |
11.2.4 | 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. |
11.2.5 | Within thirty 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. |
11.3 | Tax indemnity |
11.3.1 | The Original Borrower shall (within three 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 payments received or receivable by the Protected Party under a Finance Document or the transactions occurring under such Finance Document. |
11.3.2 | Sub-clause 11.3.1 above shall not apply: |
(a) | with respect to any tax assessed on a Finance Party: |
(i) | 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 |
(ii) | 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, |
(b) | with respect to any tax assessed on a Finance Party which is imposed as a result of a present or former connection between that Finance Party and the jurisdiction imposing that tax (or any political subdivision thereof) (other than any such connection arising as a result of that Finance Party having executed, delivered, become a party to, enforced or performed its obligations or received payments under, this agreement or any other Finance Document); or |
(c) | to the extent a loss, liability or cost is compensated for by an increased payment under Clause 11.2 (Tax gross-up); or |
(d) | to the extent that the loss, liability or cost is a result of failure by the Protected Party to comply with Clause 11.4 (Status of Foreign Lender). |
11.3.3 | A Protected Party making, or intending to make a claim under sub-clause 11.3.1 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 Original Borrower. |
11.3.4 | A Protected Party shall, on receiving a payment from an Obligor under this Clause 11.3, notify the Agent. |
11.4 | Status of Foreign Lender |
11.5 | Tax Credit |
11.5.1 | a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and |
11.5.2 | that Finance Party has obtained, utilised and retained that Tax Credit, |
11.6 | Value added tax |
11.6.1 | 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 sub-clause 11.6.3 below, if VAT is chargeable on any supply made by any Finance Party to any Party under a Finance Document, 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). |
11.6.2 | 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): |
(a) | (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant 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. The Recipient must (where this paragraph (i) applies) 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; and |
(b) | (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT. |
11.6.3 | Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall reimburse or indemnify (as the case may be) the Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that the Finance Party reasonably determines that it is entitled to credit or repayment from the relevant tax authority in respect of the VAT from the relevant tax authority. |
11.6.4 | Any reference in this Clause 11.6 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994). |
11.6.5 | In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply. |
12. | INCREASED COSTS |
12.1 | Increased costs |
12.1.1 | Subject to Clause 12.3 (Exceptions) the Original Borrower shall, within three 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: |
(a) | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or |
(b) | compliance with any law or regulation made after the date of this Agreement, |
(a) | the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk management, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; |
(b) | the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement- Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and |
(c) | any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III". |
12.1.2 | In this Agreement "Increased Costs" means: |
(a) | a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital to a level below that which such Finance Party (or Affiliate) would have achieved but for such Change in Law (taking into consideration such Finance Party's (or Affiliates') policies with respect to capital adequacy as generally applied); |
(b) | an additional or increased cost; or |
(c) | a reduction of any amount due and payable under any Finance Document, |
12.2 | Increased cost claims |
12.2.1 | A Finance Party intending to make a claim pursuant to Clause 12.1 (Increased costs) shall notify the Agent, following which the Agent shall promptly notify the Original Borrower. |
12.2.2 | Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs and setting out: |
(a) | the basis, in reasonable detail, for the determination of such additional amount or amounts necessary to compensate such Lender as aforesaid; and |
(b) | the basis, in reasonable detail, for the computation of such amount or amounts, which shall be consistently applied. |
12.3 | Exceptions |
12.3.1 | Clause 12.1 (Increased costs) does not apply to the extent any Increased Cost is: |
(a) | attributable to a Tax Deduction required by law to be made by an Obligor; |
(b) | compensated for by Clause 11.3 (Tax indemnity) (or would have been compensated for under Clause 11.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in sub-clause 11.3.2 of Clause 11.3 (Tax indemnity) applied) or because of failure of such Finance Party to comply with Clause 11.3 (Tax indemnity); |
(c) | compensated for by Clause 14.2 (Indemnity in respect of Additional Cost); |
(d) | attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or |
(e) | attributable to an increase in the rate of corporation tax; |
12.3.2 | Additionally Clause 12.1 (Increased costs) shall not apply to Increased Costs with respect to taxes imposed on or measured by the net income or net profits of a Lender pursuant to the laws of the jurisdiction in or under the laws of which it is organised or the jurisdiction in which the principal office or applicable lending office of such Lender is located or in which it conducts a trade or business or has a permanent establishment, or has a present or former connection with such jurisdiction, or any subdivision thereof or therein. |
13. | ILLEGALITY |
13.1 | If, at any time, any Lender determines in good faith that it is or will become unlawful or prohibited pursuant to any request from or requirement of any central bank or other financial, monetary or other authority (being a request or requirement with which banks are accustomed to comply and the Lender so complies with respect to its clients generally) for such Lender to make, fund, issue, participate in or allow to remain outstanding all or part of its share of the Letters of Credit, then that Lender shall, promptly after becoming aware of the same, deliver to the Original Borrower through the Agent a notice to that effect. |
13.2 | Such Lender shall not thereafter be obliged to participate in any Letter of Credit or issue any Letter of Credit (whichever shall be so affected) and the amount of its Available Commitment shall be immediately reduced to zero and if the Agent on behalf of such Lender so requires, the Original Borrower shall on such date as the Agent shall have specified: |
13.2.1 | repay all amounts owing to such Lender hereunder; and |
13.2.2 | ensure that the liabilities of such Lender under or in respect of each affected Letter of Credit is reduced to zero. |
14. | OTHER INDEMNITIES |
14.1 | Currency Indemnity |
14.1.1 | If any sum (a "Sum") due from an Obligor under the Finance Documents or any order, judgment given or made in relation thereto has to be converted from the currency (the "First Currency") in which such Sum is payable into another currency (the "Second Currency") for the purpose of: |
(a) | making or filing a claim or proof against such Obligor; |
(b) | obtaining an order, judgment in any court or other tribunal; or |
(c) | enforcing any order, judgment given or made in relation thereto, |
14.1.2 | 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. |
14.2 | Indemnity in respect of Additional Cost |
14.3 | Other indemnities |
14.3.1 | the occurrence of any Event of Default; |
14.3.2 | 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 liability arising as a result of Clause 30 (Sharing among the Finance Parties); or |
14.3.3 | issuing or making arrangements to issue a Letter of Credit requested by a Borrower in a Utilisation Request but not issued 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). |
14.4 | Indemnity to the Agent |
14.4.1 | any cost, loss or liability incurred by the Agent (acting reasonably and invoiced in reasonable detail) as a result of: |
(a) | investigating any event which it reasonably believes is a Default; |
(b) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or |
(c) | instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and |
14.4.2 | 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 31.11 (Disruption to Payment Systems, etc.) in acting as the Agent under the Finance Documents. |
14.5 | Indemnity to the Security Trustee |
14.5.1 | Without duplication of any expense reimbursement obligations contained elsewhere in this Agreement or the other Finance Documents, each Obligor shall, within five Business Days of demand, jointly and severally and promptly indemnify the Security Trustee and every Receiver and Delegate against any cost, loss or liability incurred by any of them (and invoiced in reasonable detail) as a result of: |
(a) | any failure by an Obligor to comply with its obligations under Clause 17 (Costs and expenses); |
(b) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; |
(c) | the taking, holding, protection or enforcement of the Transaction Security; |
(d) | the exercise of any of the rights, powers, discretions and remedies vested in the Security Trustee and each Receiver and Delegate by the Finance Documents or by law; |
(e) | any default by any Obligor or any other member of the Group that is party to a Finance Document in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; |
(f) | instructing lawyers, accountants, tax advisers, surveyors, a financial adviser or other professional advisers or experts as permitted under this Agreement; or |
(g) | acting as Security Trustee, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Secured Obligations (otherwise, in each case, than by reason of the relevant Security Trustee's, Receiver's or Delegate's gross negligence or wilful misconduct). |
14.5.2 | The Security Trustee and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.5 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it. |
14.6 | Exceptions |
15. | MITIGATION |
15.1 | If, in respect of any Lender, circumstances arise which would or would upon the giving of notice result in: |
15.1.1 | an increase in any sum payable to it or for its account pursuant to Clause 11.2 (Tax Gross-up); |
15.1.2 | a claim for indemnification pursuant to Clause 11.3 (Tax Indemnity) or Clause 12 (Increased Costs); or |
15.1.3 | the reduction of its Available Commitment to zero or any repayment to be made pursuant to Clause 13 (Illegality), |
15.2 | In connection with the occurrence of any of the events set forth in sub-clauses 15.1.1 through 15.1.3, the Original Borrower, at its sole expense and effort, shall have the right, if no Default or Event of Default then exists, to replace such Lender (the "Replaced Lender"), with one or more person or persons (collectively, the "Replacement Lender") reasonably acceptable to the Agent at which time the Replaced Lender shall assign or transfer, without recourse (in accordance with and subject to the restrictions contained in Clause 25 (Changes to the Lenders)), all its interests, rights and obligations under this Agreement to the Replacement Lender provided that: |
15.2.1 | the Replacement Lender shall pay to the Replaced Lender in respect thereof an amount equal to the sum of: |
(a) | an amount equal to all Unpaid Sums that have been funded by (and not reimbursed to) such Replaced Lender, together with all then unpaid interest with respect thereto at such time; and |
(b) | an amount equal to all accrued, but theretofore unpaid, fees owing to the Replaced Lender pursuant to Clause 16 (Commitment Commission and fees); |
15.2.2 | all obligations of any Borrower under the Finance Documents owing to the Replaced Lender (other than those specifically described in sub-clause 15.2.1 |
15.2.3 | such assignment or transfer is likely to result in a reduction in such compensation or payments; and |
15.2.4 | no Lender shall be required to become a Replaced Lender if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Original Borrower to require such assignment or transfer cease to apply. |
16. | COMMITMENT COMMISSION AND FEES |
16.1 | Commitment Commission on the Facility |
16.1.1 | for any period in which all or any part of the Borrowing Base consists of Eligible Investment Grade Securities, 0.175 per cent. per annum; and |
16.1.2 | at all other times, 0.15 per cent. per annum, |
16.2 | Arrangement Fee |
16.3 | Structuring Fee |
16.4 | Agency Fees |
17. | COSTS AND EXPENSES |
17.1 | Transaction expenses |
17.1.1 | this Agreement and any other documents referred to in this Agreement and the Transaction Security; and |
17.1.2 | any other Finance Documents executed after the date of this Agreement. |
17.2 | Amendment costs |
17.3 | Security Trustee's ongoing costs |
17.3.1 | Any amount payable to the Security Trustee under Clause 14.5 (Indemnity to the Security Trustee) and this Clause 17 shall include the cost of utilising, on a reasonable basis, the Security Trustee's management time or other resources and will be calculated on the basis of such reasonably daily or hourly rates as the Security Trustee may notify to the Original Borrower and the Lenders, and is in addition to any other fee paid or payable to the Security Trustee. |
17.3.2 | Without prejudice to clause 17.3.1 above, in the event of (i) the occurrence of a Default or (ii) the Security Trustee considering it necessary or expedient or (iii) the Security Trustee being requested by an Obligor or any other member of the Group that is party to a Finance Document or the Majority Lenders to undertake |
17.3.3 | Without duplication of any expense reimbursement obligations or indemnities contained elsewhere in this Agreement or the other Finance Documents, if the Security Trustee and the Original Borrower fail to agree upon the nature of the duties or upon any additional remuneration, that dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Trustee and approved by the Original Borrower or, failing approval, nominated (on the application of the Security Trustee) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Original Borrower) and the determination of any investment bank shall be final and binding upon the parties to this Agreement. |
17.4 | Enforcement and preservation costs |
17.5 | Stamp taxes |
18. | DEFAULT INTEREST AND BREAK COSTS |
18.1 | Default Interest Periods |
18.1.1 | any amount payable by it pursuant to sub-clause 7.1.1 of Clause 7.1 (Borrowers' Indemnity to Lenders), the period beginning on the date on which the relevant Finance Party paid any sum due and payable under the relevant Letter of Credit |
(a) | the first three periods being periods of a duration of one day each, which (other than the first) shall start on the last day of the preceding such period; and |
(b) | thereafter, each such period shall start on the last day of the preceding period and the duration of each of which shall (except as otherwise provided in this Clause 18) be selected by the Agent; |
18.1.2 | any other amount payable by it under a Finance Document on its due date, or if any sum due and payable by an Obligor under any judgment of any court in connection herewith is not paid on the date of such judgment, the period beginning on such due date or, as the case may be, the date of such judgment and ending on the date upon which the obligation of such Obligor to pay such sum is discharged shall be divided into successive periods, each of which (other than the first) shall start on the last day of the preceding such period and the duration of each of which shall (except as otherwise provided in this Clause 18) be selected by the Agent. |
18.2 | Default Interest |
18.2.1 | which is a sum referred to in sub-clause 18.1.1 of Clause 18.1 (Default Interest Periods) above shall bear interest: |
(a) | during the first three Interest Periods in respect thereof at LIBOR at the overnight rate on the Quotation Day therefor; and |
(b) | during each Interest Period thereafter, at the rate per annum which is three per cent. per annum above LIBOR on the Quotation Day therefor; |
18.2.2 | which is a sum referred to in sub-clause 18.1.2 of Clause 18.1 (Default Interest Periods) above shall bear interest during each Interest Period in respect thereof at the rate per annum which is three per cent. per annum above LIBOR, on the Quotation Day therefor. |
18.3 | Payment of Default Interest |
18.4 | Break Costs |
19. | GUARANTEE AND INDEMNITY |
19.1 | Guarantee and indemnity |
19.1.1 | guarantees to each Finance Party punctual performance by each Borrower of all that Borrower's obligations under the Finance Documents; |
19.1.2 | undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, such Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and |
19.1.3 | indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance Party if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover. |
19.2 | Continuing guarantee |
19.3 | Reinstatement |
19.3.1 | the liability of that Borrower shall continue as if the payment, discharge, avoidance or reduction had not occurred; and |
19.3.2 | each Finance Party shall be entitled to recover the value or amount of that security or payment from that Borrower as if the payment, discharge, avoidance or reduction had not occurred. |
19.4 | Waiver of defences |
19.4.1 | any time, waiver or consent granted to, or composition with, a Borrower or other person; |
19.4.2 | the release of a Borrower or any other person under the terms of any composition or arrangement with any creditor of an Obligor; |
19.4.3 | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, a Borrower or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
19.4.4 | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Borrower or any other person; |
19.4.5 | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of a Finance Document or any other document or security; |
19.4.6 | any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or |
19.4.7 | any insolvency or similar proceedings. |
19.5 | Guarantor Intent |
19.5.1 | acquisitions of any nature; |
19.5.2 | increasing working capital; |
19.5.3 | enabling investor distributions to be made; |
19.5.4 | carrying out restructurings; |
19.5.5 | refinancing existing facilities; |
19.5.6 | refinancing any other indebtedness; |
19.5.7 | making facilities available to new borrowers; |
19.5.8 | any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and |
19.5.9 | any fees, costs and/or expenses associated with any of the foregoing. |
19.6 | Immediate recourse |
19.7 | Appropriations |
19.7.1 | refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and |
19.7.2 | hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of that Guarantor's liability under this Clause 19. |
19.8 | Deferral of Guarantor's rights |
19.8.1 | to be indemnified by a Borrower; |
19.8.2 | to claim any contribution from any other guarantor of any Borrower's obligations under the Finance Documents; |
19.8.3 | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party; |
19.8.4 | to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 19.1 (Guarantee and Indemnity); |
19.8.5 | to exercise any right of set-off against any Obligor; and/or |
19.8.6 | to claim or prove as a creditor of any Obligor in competition with any Finance Party. |
19.9 | Release of Guarantors' right of contribution |
19.9.1 | that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and |
19.9.2 | each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor. |
19.10 | Additional security |
20. | REPRESENTATIONS |
20.1 | Corporate Status |
20.1.1 | is a duly organised and validly existing corporation or business trust or other entity in good standing under the laws of the jurisdiction of its organisation and has the corporate or other organisational power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage; and |
20.1.2 | has been duly qualified and is authorised to do business and is in good standing in all jurisdictions where it is required to be so qualified, |
20.2 | Corporate Power and Authority |
20.2.1 | It and each of its subsidiaries that is party to any Finance Document has the corporate power and authority to execute, deliver and carry out the terms and provisions of the Finance Documents to which it is a party and has taken all necessary corporate action to authorise the execution, delivery and performance of such Finance Documents. |
20.2.2 | It and each of its subsidiaries that is party to any Finance Document has duly executed and delivered each Finance Document to which it is a party and, subject to the Legal Reservations, each such Finance Document constitutes the legal, valid and binding obligation of such Obligor or such subsidiary enforceable against it in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally and general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law. |
20.3 | No Contravention of Agreements or Organisational Documents |
20.3.1 | Neither the execution, delivery and performance, by it or any of its subsidiaries that is party to any Finance Document, of this Agreement or the other Finance Documents to which it is a party nor compliance with the terms and provisions thereof, nor the consummation of the transactions contemplated therein: |
20.3.2 | will contravene any applicable provision of any law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality; |
20.3.3 | will conflict or be inconsistent with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (other than Liens in favour of the Security Trustee pursuant to the Security Documents) upon any of its property or assets or those of any of its Significant Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, credit agreement or any other material instrument to which it or any of its Significant Subsidiaries is a party or by which it or any of its property or assets are bound or to which it may be subject; or |
20.3.4 | will violate any provision of its certificate of incorporation, by-laws or other organisational documents, nor those of its Significant Subsidiaries. |
20.4 | Litigation and Environmental Matters |
20.4.1 | has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law; |
20.4.2 | has become subject to any Environmental Liability; |
20.4.3 | has received notice of any claim with respect to any Environmental Liability; or |
20.4.4 | knows of any basis for any Environmental Liability. |
20.5 | Approvals |
20.5.1 | order, consent, approval, license, authorisation, or validation of, or filing, recording or registration with, or exemption by, any foreign or domestic |
20.5.2 | third party approval, permit or license required to be obtained by it or any of its Significant Subsidiaries, |
20.6 | Investment Company Act |
20.7 | Projections and Assumptions |
20.8 | Financial Condition |
20.8.1 | The Original Guarantor has heretofore furnished to the Agent (on behalf of the Lenders) its consolidated balance sheet and consolidated statements of operations and comprehensive income, (loss), shareholders' equity and cash flows as of and for the fiscal year ended 31 December 2012 reported on by PricewaterhouseCoopers, independent public accountants. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Original Guarantor and its consolidated Significant Subsidiaries as of such dates and for such periods in accordance with US GAAP. |
20.8.2 | As of the Closing Date, nothing has occurred since 31 December 2012 either individually or in the aggregate, which has resulted in, or would reasonably be expected to result in, any material adverse condition or any material adverse change which, in either case, has a Material Adverse Effect, in or affecting: |
(a) | the business, operations, assets, liabilities or financial condition of the Original Guarantor and its Significant Subsidiaries, taken as a whole; or |
(b) | the rights and remedies of any Finance Party or the ability of the Obligors, taken as a whole, to perform their respective obligations owed to any Finance Party under this Agreement or any other Finance Document. |
20.9 | Tax Returns and Payments |
20.9.1 | Except where the failure to do so would not reasonably be expected, individually or in aggregate, to have a Material Adverse Effect, the Original Guarantor and its Significant Subsidiaries: |
(a) | have timely filed or caused to be timely filed with the appropriate taxing authority (taking into account any applicable extension within which to file) all material income and other material tax returns (including any statements, forms and reports), domestic and foreign, required to be filed by the Original Guarantor and its Significant Subsidiaries; and |
(b) | have timely paid, collected or remitted or caused to have timely paid, collected or remitted all material Taxes payable by them which have become due and assessments which have become due, except for those contested in good faith and for which adequate reserves have been established in accordance with applicable GAAP. |
20.9.2 | To the best knowledge of the Original Guarantor, there is no action, suit, proceeding, investigation, audit or claim now pending or proposed or threatened by any authority regarding any Taxes relating to the Original Guarantor or any of its Significant Subsidiaries, which, either individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect. |
20.9.3 | To the best knowledge of the Original Guarantor, no Tax Liens have been filed and no claims are pending or proposed or threatened with respect to any Taxes for any taxable period, except for Liens permitted under Clause 23.15 (Liens) and claims which, either individually or in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect. |
20.10 | Compliance with ERISA |
20.10.1 | Except as, either individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect, the Original Guarantor and its ERISA Affiliates: |
(a) | have fulfilled their respective obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and are in compliance with the applicable provisions of ERISA and the Code; and |
(b) | have not incurred any liability to the PBGC or any Plan or Multiemployer Plan (other than to make contributions in the ordinary course of business). |
20.10.2 | Except as, either individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect: |
(a) | there has not been a determination that any Plan is, or is expected to be, in "at risk" status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); and |
(b) | there has not been a receipt by any Original Guarantor or any of its ERISA Affiliates of any notice of the imposition of withdrawal liability or of a determination that a Multiemployer Plan is, or is expected to be, in "endangered" or "critical" status, within the meaning of Section 305 of ERISA. |
20.10.3 | Except as, either individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect: |
(a) | each Foreign Pension Plan has been maintained in compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities; |
(b) | all contributions required to be made with respect to a Foreign Pension Plan have been timely made; |
(c) | neither the Original Guarantor nor any of its Significant Subsidiaries has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan; and |
(d) | the present value of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan that is required to be funded, determined as of the end of the Original Guarantor's most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities. |
20.11 | Subsidiaries |
20.11.1 | Listed in Schedule 13 (Subsidiaries) is a complete and correct list of all of the subsidiaries of the Original Guarantor as of the Closing Date, together with, for each such subsidiary: |
(a) | the jurisdiction of organisation of such subsidiary; |
(b) | each person holding direct ownership interests in such subsidiary; and |
(c) | the percentage ownership of such subsidiary represented by such ownership interests. |
20.11.2 | Except as disclosed in Schedule 13 (Subsidiaries), as of the Closing Date, each of the Original Guarantor and its Significant Subsidiaries owns, free and clear of Liens, and has the unencumbered right to vote, all outstanding ownership interests in each person shown to be held by it in Schedule 13 (Subsidiaries). |
20.11.3 | As of the Closing Date, there are no restrictions on the Original Guarantor or any of its Significant Subsidiaries which prohibit or otherwise restrict the transfer of cash or other assets from any Significant Subsidiary of the Original Guarantor to the Original Guarantor, other than: |
(a) | prohibitions or restrictions existing under or by reason of this Agreement or the other Finance Documents; |
(b) | prohibitions or restrictions existing under or by reason of Legal Requirements; |
(c) | prohibitions and restrictions permitted by Schedule 11 (Existing Intercompany Arrangements and Agreements) or Clause 23.22 (Limitation on Certain Restrictions on subsidiaries); and |
(d) | other prohibitions or restrictions which, either individually or in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect. |
20.11.4 | The Security Provider is a Significant Subsidiary. |
20.12 | Capitalisation |
20.12.1 | the Original Borrower consists of 500,000,000 shares, par value $0.0020 per share; |
20.12.2 | the Original Guarantor consists of 571,428,571.4 shares, par value $0.175 per share. |
20.13 | Indebtedness |
20.13.1 | as set forth on the Original Guarantor's consolidated balance sheet as of 30 September 2012; |
20.13.2 | borrowings since such date under the revolving credit facilities, letter of credit facilities and lines of credit of the Original Guarantor and/or its subsidiaries; and |
20.13.3 | Permitted Subsidiary Indebtedness. |
20.14 | Compliance with Statutes and Agreements |
20.14.1 | The Original Guarantor and each of its Significant Subsidiaries is in compliance with all applicable statutes, regulations, rules and orders of, and all applicable restrictions imposed by, and has filed or otherwise provided all material reports, data, registrations, filings, applications and other information required to be filed |
20.14.2 | All regulatory approvals required by the Original Guarantor and each of its Significant Subsidiaries are in full force and effect on the date hereof, except where the failure of such approvals to be in full force and effect, either individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect. |
20.14.3 | The Original Guarantor and each of its Significant Subsidiaries is in compliance with all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, either individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect. |
20.15 | Insurance Licenses |
20.15.1 | There is, in relation to itself and each of its Significant Subsidiaries: |
(a) | no Insurance License that is the subject of a proceeding for suspension, revocation or limitation or any similar proceedings; |
(b) | no sustainable basis for such a suspension, revocation or limitation; and |
(c) | no such suspension, revocation or limitation threatened by any Applicable Insurance Regulatory Authority, |
20.15.2 | As of the Closing Date, neither it nor any of its Significant Subsidiaries that is a Regulated Insurance Company transacts any Insurance Business, directly or indirectly, in any jurisdiction without all Insurance Licenses required by the Applicable Insurance Regulatory Authority in such jurisdiction, except where the failure to have such Insurance Licenses has not had, and would not reasonably be expected to have, a Material Adverse Effect. For the purposes of this sub-clause 20.15.2, "Insurance Licenses" means material licences (including licences or certificates of authority from Applicable Insurance Regulatory Authorities), permits or authorisations to transact insurance and reinsurance business. |
20.16 | Security Documents |
20.16.1 | The Security Documents create, as security for Secured Obligations, valid and enforceable security interests in and Liens on all of the Collateral, which, subject |
20.16.2 | No filings or recordings are required in order to ensure the enforceability, perfection or priority of the security interests created under the Security Documents, except for filings or recordings which shall have been previously made or which are otherwise made within the period prescribed by law for such filings or recordings. |
20.17 | Properties; Liens; and Insurance |
20.17.1 | The Original Guarantor and its Significant Subsidiaries have good title to, or valid leasehold interests in, all real and personal property material to the businesses of the Original Guarantor and its Significant Subsidiaries, taken as a whole except where not having such title, either individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect. |
20.17.2 | There exists no Lien (including any Lien arising out of any attachment, judgment or execution) of any kind, on, in or with respect to any of the property of the Original Guarantor or any of its Significant Subsidiaries, in each case except as expressly permitted by Clause 23.15 (Liens). |
20.17.3 | The Original Guarantor and its Significant Subsidiaries own, or are licensed to use, all trademarks, trade names, copyrights, patents and other intellectual property material to the businesses of the Original Guarantor and its Significant Subsidiaries, taken as a whole, and the use thereof by the Original Guarantor or such Significant Subsidiary does not infringe upon the rights of any other person, except for any such infringements that, either individually or in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect. |
20.17.4 | As of the Closing Date, all premiums due in respect of each material insurance policy maintained by the Original Guarantor and its Significant Subsidiaries have been paid. |
20.18 | Solvency |
20.18.1 | Each Obligor, taken individually; and |
20.18.2 | the Original Guarantor and its Significant Subsidiaries, taken as a whole, |
20.19 | No default |
20.20 | Deduction of Tax |
20.21 | No Filing or Stamp Taxes |
20.21.1 | filings in respect of any registerable security created under the Finance Documents and the payment of registration fees in connection therewith; and |
20.21.2 | any stock transfer taxes which may be payable upon the realisation or enforcement of all or any part of the Transaction Security. |
20.22 | Claims Pari Passu |
20.23 | No Winding-up |
20.24 | Repetition of Representations |
20.24.1 | each Utilisation Date and every six months after such date until the Expiry Date of such Letter of Credit; and |
20.24.2 | in the case of an Additional Obligor, the day on which it becomes (or it is proposed that it becomes) an Additional Obligor, |
21. | INFORMATION UNDERTAKINGS |
21.1 | Annual Financial Statements |
21.1.1 | as soon as available and in any event within 90 days after the close of each fiscal year of the Original Guarantor, the consolidated balance sheet of the Original Guarantor and its subsidiaries as at the end of such fiscal year and the related consolidated statements of income, changes in shareholders' equity and cash flows of the Original Guarantor and its subsidiaries for such fiscal year, setting forth in comparative form the consolidated figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of PricewaterhouseCoopers or another independent registered public accounting firm of recognised national standing selected by the Original Guarantor (without a "going concern" or like qualification and without any qualification or exception as to the scope of such audit), which report shall state that such consolidated financial statements present fairly in all material respects the consolidated financial position of the Original Guarantor and its subsidiaries as at the dates indicated and their consolidated results of operations and cash flows for the periods indicated in conformity with US GAAP and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. The Original Guarantor shall be deemed to have delivered the same to the Agent if the Original Guarantor files the same with the SEC via EDGAR and notifies the Agent of such filing; and |
21.1.2 | as soon as the same becomes available and in any event within 120 days after the close of each of its financial year, the audited financial statements of the Managed Syndicate for that financial year. |
21.2 | Quarterly Financial Statements |
21.3 | Officer's Certificates |
21.3.1 | certifying that no Default or Event of Default has occurred or, if any Default or Event of Default has occurred, specifying the nature and extent thereof and any action taken or proposed to be taken with respect thereto; |
21.3.2 | setting forth reasonably detailed calculations demonstrating compliance with the provisions of Clause 22 (Financial Condition), as at the end of such fiscal year or quarter, as the case may be; |
21.3.3 | certifying that the Regulated Insurance Companies have, in the opinion of such Financial Officer maintained adequate reserves; |
21.3.4 | stating whether any change in US GAAP or in the application thereof has occurred since 31 December 2012 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; and |
21.3.5 | it being agreed that a certificate in a form substantially similar to the Covenant Compliance Calculations delivered by the Original Guarantor under the Four-Year Secured Letter of Credit Facility with respect to the fiscal period ended 30 June 2013 (a copy of which has been provided to the Agent) is acceptable for purposes hereof. |
21.4 | Quarterly Monitoring Return |
21.5 | Accounting Firm Certificate |
21.6 | Notice of Event of Default or Litigation |
21.6.1 | promptly after any Obligor becomes aware of the occurrence of any Event of Default and/or any event or condition constituting, or which would reasonably be expected to have, a Material Adverse Effect, a certificate of an Authorised Officer of the Original Guarantor setting forth the details thereof and the actions which the Original Guarantor is taking or proposes to take with respect thereto; and |
21.6.2 | promptly after any Obligor knows of the commencement thereof, notice of any litigation, dispute or proceeding involving a claim against the Original Guarantor and/or any of its subsidiaries which claim has had, or would reasonably be expected to have, a Material Adverse Effect. |
21.7 | SEC Filings |
21.8 | Borrowing Base Certificate |
21.9 | Release Test Calculations |
21.10 | Ratings Information |
21.11 | FATCA Information |
21.11.1 | Subject to clause 21.11.3 below, each Party shall, within ten Business Days of a reasonable request by another Party: |
(a) | confirm to that other Party whether it is: |
(i) | FATCA Exempt Party; or |
(ii) | not a FATCA Exempt Party; and |
(b) | supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable "passthru payment percentage" or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA. |
21.11.2 | If a Party confirms to another Party pursuant to clause 21.11.1 above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. |
21.11.3 | Clause 21.11.1 above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of: |
(a) | any law or regulation; |
(b) | any fiduciary duty; or |
(c) | any duty of confidentiality. |
21.11.4 | If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with clause 21.11.1 above (including, for the avoidance of doubt, where clause 21.11.3 above applies), then: |
(a) | if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and |
(b) | if that Party failed to confirm its applicable "passthru payment percentage" then such Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable "passthru payment percentage" is 100%, |
21.12 | Other Information |
21.13 | Delivery of Information |
21.14 | Books, Records and Inspections |
21.14.1 | keep, and will cause each of its subsidiaries to keep, proper books of record and account in which full, true and correct entries in conformity with GAAP or SAP, as applicable, shall be made of all dealings and transactions in relation to its business and activities which GAAP or SAP, as applicable, requires to be entered therein; and |
21.14.2 | subject to binding contractual confidentiality obligations of the Obligors or their subsidiaries to third parties, and to Clause 44 (Confidentiality), permit, and will cause each of its subsidiaries to permit, representatives of the Agent or, following the occurrence of an Event of Default which is continuing, any Lender (at such Agent or Lender's expense prior to the occurrence of an Event of Default and at the Original Borrower's expense (to the extent invoiced and reasonable) after an Event of Default has occurred and is continuing) to visit and inspect any of their respective properties, to examine their respective books and records and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public accountants, in each case at such reasonable times (which shall be, unless an Event of Default has occurred and is continuing, during business hours, upon reasonable prior notice to the Agent, which notice shall be promptly conveyed to the Original Guarantor) and as often as may reasonably be desired provided that unless a Default or Event of Default has occurred which is continuing, such visits and inspections shall not occur more than once in any calendar year. Each Obligor agrees to (and the Original Guarantor shall ensure that each other member of the Group that is party to a Finance Document shall) cooperate and assist in such visits and inspections. With respect to any such discussions with any independent public accountants of the |
21.15 | "Know your customer" checks |
21.15.1 | If: |
(a) | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; |
(b) | any change in the status of an Obligor or any other member of the Group that is party to a Finance Document or the composition of the shareholders of an Obligor or any other member of the Group that is party to a Finance Document after the date of this Agreement; or |
(c) | a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer, |
21.15.2 | Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. |
21.15.3 | The Original Guarantor shall, by not less than 10 Business Days' prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 26 (Changes to the Obligors). |
21.15.4 | Following the giving of any notice pursuant to sub-clause 21.15.3 above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with "know your customer" or similar identification procedures in circumstances |
22. | FINANCIAL CONDITION |
22.1 | Financial Condition |
22.1.1 | the Leverage Ratio to be greater than 0.35:1.00; and |
22.1.2 | the Consolidated Net Worth to be less than the Minimum Consolidated Net Worth Amount in effect at such time. |
22.2 | Financial Definitions |
(a) | to purchase any such primary obligation or any property constituting direct or indirect security therefor; |
(b) | to advance or supply funds: |
(i) | for the purchase or payment of any such primary obligation; or |
(ii) | to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; |
(c) | to purchase or lease property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or |
(d) | otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof, |
(a) | immediately following the last day of each financial quarter (commencing with the financial quarter ending on 30 September 2013) by an amount (if positive) equal to 50% of the Net Income for such financial quarter; and |
(b) | by 50% of the aggregate increases in the consolidated Shareholders' Equity Interests of the Original Guarantor during such financial quarter, by reason of the issuance and sale of common Equity Interests of the Original Guarantor including upon any conversion of debt securities of the Original Guarantor into such Equity Interests. |
22.3 | Financial Testing |
22.4 | Accounting Terms |
23. | GENERAL UNDERTAKINGS |
23.1 | Insurance |
23.2 | Payment of Taxes and other Obligations |
23.2.1 | all material income taxes and all other material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it; and |
23.2.2 | all other material lawful claims, in each case, on a timely basis prior to the date on which penalties attach thereto; provided that neither the Original Guarantor nor any of its subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with applicable GAAP. |
23.3 | Maintenance of Existence; Conduct of Business |
23.3.1 | The Original Guarantor shall maintain, and shall cause each of its subsidiaries to maintain, its existence and the rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business, provided that the Original Guarantor shall not be required to maintain the existence of any of its subsidiaries or any such rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names: |
(a) | if the Original Guarantor shall determine in good faith that the preservation thereof is no longer desirable in the conduct of the business of the Original Guarantor and its subsidiaries, taken as a whole; or |
(b) | in connection with a Disposition permitted by Clause 23.14 (Consolidations, Mergers and Sales of Assets). |
23.3.2 | The Original Guarantor will qualify and remain qualified, and cause each of its subsidiaries to qualify and remain qualified, as a foreign corporation in each jurisdiction where the Original Guarantor or such subsidiary, as the case may be, is required to be qualified, except in those jurisdictions in which the failure to receive or retain such qualifications, either individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect. |
23.4 | Compliance with Statutes, etc. |
23.5 | ERISA |
23.5.1 | any reportable event, as defined in subsections (c)(1), (2), (5) and (6), and subsection (d)(2) of Section 4043 of ERISA and the regulations issued thereunder, with respect to a Plan; |
23.5.2 | the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan under a distress termination or the distress termination of any Plan; |
23.5.3 | the institution by the PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Original Guarantor or any of its ERISA Affiliates of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan which would reasonably be expected to result in a liability to the Original Guarantor or any of its subsidiaries in excess of $15,000,000; |
23.5.4 | the receipt by the Original Guarantor or any of its ERISA Affiliates of notice from a Multiemployer Plan that the Original Guarantor or any of its ERISA Affiliates has incurred withdrawal liability under Section 4201 of ERISA in excess of $15,000,000 or that such Multiemployer Plan is in reorganisation or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA whereby a deficiency or additional assessment is levied or threatened to be levied in excess of $15,000,000 against the Original Guarantor or any of its ERISA Affiliates; |
23.5.5 | the institution of a proceeding by a fiduciary of any Plan or Multiemployer Plan against the Original Guarantor or any of its ERISA Affiliates to enforce Section 515 or 4219(c)(5) of ERISA asserting liability in excess of $15,000,000, which proceeding is not dismissed within 30 days; and |
23.5.6 | that any contribution in excess of $15,000,000 required to be made with respect to a Foreign Pension Plan has not been timely made, or that the Original Guarantor or any of its subsidiaries may incur any liability in excess of $15,000,000 pursuant to any Foreign Pension Plan (other than to make contributions in the ordinary course of business). |
23.6 | Maintenance of Property |
23.7 | Maintenance of Licenses and Permits |
23.8 | Compliance with US regulations |
23.9 | Collateral; Further Assurances |
23.10 | Substitution of Letters of Credit |
23.11 | Application of Funds at Lloyd's and Cash Calls |
23.12 | Funds at Lloyd's compliance |
23.12.1 | ensure the Own FAL of the Account Party shall consist of acceptable assets (as such phrase is defined in paragraph 8 of the Membership and Underwriting Conditions and requirements (Funds at Lloyd's)); |
23.12.2 | ensure that its Own FAL shall be revalued by Lloyd's in accordance with Lloyd's usual practice on 31 December in each year and on each of the Publication Dates referred to in Clause 21.9 (Release Test Calculations); and |
23.12.3 | ensure that, subject to any claims or losses of the Account Party arising on or after the date of this Agreement in the ordinary course of its insurance business, Own FAL of the Account Party shall not at any time be less than $300,000,000. |
23.13 | Changes in Business or Organisational Documents |
23.13.1 | businesses in which they are engaged (or proposed to be engaged) as of the date of this Agreement and reasonable extensions thereof; |
23.13.2 | other specialty insurance and structured risk insurance and reinsurance product lines; and |
23.13.3 | any other businesses that are complementary or reasonably related thereto and the conduct of business incidental thereto. |
23.14 | Consolidations, Mergers and Sales of Assets |
23.14.1 | The Original Guarantor shall not, and shall ensure that none of its subsidiaries will, consolidate or merge with or into any other person, or permit any other person to merge into or consolidate with it; provided that: |
(a) | the Original Guarantor may merge with another person, if: |
(i) | the Original Guarantor is the entity surviving such merger; and |
(ii) | immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing; |
(b) | any subsidiary of the Original Guarantor may merge with another person, if: |
(i) | such subsidiary is the entity surviving (or, in the case of an amalgamation, continues immediately following) such merger; and |
(ii) | immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing; and |
(c) | Wholly-Owned Subsidiaries of the Original Guarantor may merge with one another, |
23.14.2 | In addition, the Original Guarantor shall not, and shall ensure that none of its subsidiaries will, sell, convey, assign, lease, abandon or otherwise transfer or |
(a) | Dispositions in the ordinary course of its business; |
(b) | such Dispositions by: |
(i) | the Original Guarantor or any of its subsidiaries of any of their respective properties or assets to the Original Guarantor or any Wholly-Owned Subsidiary of the Original Guarantor; |
(ii) | IPC or any of its subsidiaries of any of their respective properties or assets to IPC or any of its other subsidiaries; or |
(iii) | Flagstone or any of its subsidiaries or any of their respective properties or assets to Flagstone or any of its other subsidiaries, |
(c) | subject to Clause 23.3 (Maintenance of Existence; Conduct of Business), the dissolution or winding up of any subsidiary other than an Obligor or the Account Party; |
(d) | Dispositions of used, worn out, obsolete or surplus property of the Original Guarantor or any subsidiary in the ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Original Guarantor, no longer economically practicable to maintain or useful in the conduct of the business of the Original Guarantor and its subsidiaries, taken as a whole; |
(e) | licenses (as licensor) of intellectual property so long as such licenses do not materially interfere with the business of the Original Guarantor or any of its subsidiaries; |
(f) | Dispositions of Cash, Cash Equivalents and investment securities (including pursuant to any securities lending arrangements permitted by sub-clause 23.15.21 of Clause 23.15 (Liens) and including in connection with the posting of collateral in connection with this Agreement or in connection with the Four-Year Secured Letter of Credit Facility, the Four-Year Unsecured Letter of Credit Facility, the Citi Facility, the IPC Facility, the Flagstone Facility and the Pac Re Facility); |
(g) | releases, surrenders or waivers of contracts, torts or other claims of any kind as a result of the settlement of any litigation or threatened litigation; |
(h) | the granting or existence of Liens permitted under this Agreement; |
(i) | leases or subleases of real property so long as such leases or subleases do not materially interfere with the business of the Original Guarantor or any of its subsidiaries; |
(j) | Dividends permitted under Clause 23.20 (Restricted Payments); |
(k) | ceding of insurance or reinsurance in the ordinary course of business; and |
(l) | other Dispositions of assets with a fair market value which in the aggregate do not exceed 10 per cent. of the lesser of the book or fair market value of the property and assets of the Original Guarantor determined on a consolidated basis as of the last day of the previous financial year of the Original Guarantor provided that immediately after giving effect (including pro forma effect) to any Disposition made pursuant to this sub-paragraph (l), no Event of Default shall have occurred and be continuing, |
23.14.3 | The Security Provider shall at all times remain a Significant Subsidiary. |
23.15 | Liens |
23.15.1 | Liens existing on the date of this Agreement and listed in Schedule 10 (Existing Liens) hereto, including any amendment or variation thereof (except to the extent that such amendment or variation results in an increase of the principal amount secured by such Lien); |
23.15.2 | Liens securing repurchase agreements constituting a borrowing of funds by the Original Guarantor or any subsidiary of the Original Guarantor in the ordinary course of business for liquidity purposes and in no event for a period exceeding 90 days in each case; |
23.15.3 | Liens arising pursuant to purchase money mortgages, capital leases or security interests securing Indebtedness representing the purchase price (or financing of the purchase price within 90 days after the respective purchase) of assets acquired by any Obligor or any of its subsidiaries; |
23.15.4 | Liens on any asset of any person existing at the time such person is merged or consolidated with or into, or otherwise acquired by, the Original Guarantor or any of its subsidiaries or becomes a member of the Group or at the time of acquisition of such asset by the Original Guarantor or any of its subsidiaries and not created in contemplation of such event; |
23.15.5 | Liens securing obligations owed by the Original Guarantor to any of its subsidiaries or owed by any subsidiary of the Original Guarantor to the Original |
23.15.6 | Liens securing insurance or reinsurance obligations of subsidiaries of the Original Guarantor owed by such subsidiary to the Original Guarantor or any other subsidiary of the Original Guarantor, in each case solely to the extent that such Liens are required or requested by rating agencies, regulatory agencies, clients or brokers for such person to maintain such insurance and reinsurance obligations; |
23.15.7 | Liens on investments and cash balances of any Regulated Insurance Company securing obligations of such Regulated Insurance Company in respect of trust or similar arrangements formed, letters of credit issued or funds withheld balances established, in each case, in the ordinary course of business for the benefit of policyholders or cedents to secure insurance or reinsurance recoverables owed to them by such Regulated Insurance Company; |
23.15.8 | inchoate Liens for taxes, assessments or governmental charges or levies not yet due or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with applicable GAAP; |
23.15.9 | Liens in respect of property or assets of the Original Guarantor or any of its subsidiaries imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers', warehousemen's, materialmen's and mechanics' liens and other similar Liens arising in the ordinary course of business, and: |
(a) | which do not in the aggregate materially detract from the value of the Original Guarantor or such subsidiary's property or assets or materially impair the use thereof in the operation of the business of the Original Guarantor or such subsidiary; or |
(b) | which are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien; |
23.15.10 | licenses, sublicenses, leases, or subleases granted to other persons not materially interfering with the conduct of the business of the Original Guarantor or any of its subsidiaries; |
23.15.11 | easements, rights-of-way, restrictions, encroachments and other similar charges or encumbrances, and minor title deficiencies, in each case not securing Indebtedness and not materially interfering with the conduct of the business of the Original Guarantor or any of its subsidiaries; |
23.15.12 | Liens arising out of the existence of judgments or awards not constituting an Event of Default under Clause 24.7 (Judgments); |
23.15.13 | Liens (other than Liens imposed under ERISA) incurred in the ordinary course of business in connection with workers compensation claims, unemployment insurance and social security benefits and Liens securing the performance of bids, reinsurance obligations, tenders, leases and contracts in the ordinary course of business, statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business and consistent with past practice (exclusive of obligations in respect of payment for borrowed money); |
23.15.14 | bankers' Liens, rights of setoff and other similar Liens existing solely with respect to Cash and Cash Equivalents on deposit in one or more accounts maintained by the Original Guarantor or any of its subsidiaries, in each case granted in the ordinary course of business in favour of the bank or banks with which such accounts are maintained; |
23.15.15 | Liens arising out of the refinancing, extension, renewal or refunding of any Indebtedness secured by any Lien permitted by any of the sub-clauses of this Clause 23.15 (Liens), provided that such Indebtedness is not increased and is not secured by any additional assets; |
23.15.16 | Liens created pursuant to the Finance Documents, Liens created pursuant to the Four-Year Secured Letter of Credit Facility or the Four-Year Unsecured Letter of Credit Facility, Liens created pursuant to the Citi Facility, Liens created pursuant to the IPC Facility, Liens created pursuant to the Flagstone Facility and Liens created pursuant to the Pac Re Facility; |
23.15.17 | Liens in respect of property or assets of any subsidiary of the Original Guarantor securing Indebtedness of the type described in paragraph (e) of the definition of "Permitted Subsidiary Indebtedness"; |
23.15.18 | Liens in respect of property or assets of any subsidiary of the Original Guarantor securing Indebtedness of the type described in paragraph (i) of the definition of "Permitted Subsidiary Indebtedness" provided that: |
(a) | the aggregate amount of such Liens (measured, as to each such Lien permitted under this sub-clause 23.15.18, as the greater of the amount secured by such Lien and the fair market value at such time of the assets subject to such Lien) shall not, when added to the aggregate amount of all Liens (measured as set forth in this sub-clause 23.15.18) incurred pursuant to sub-clause 23.15.26 below and the aggregate amount of outstanding unsecured Indebtedness of subsidiaries incurred pursuant to paragraph (i) of the definition of "Permitted Subsidiary Indebtedness", exceed at any time 5 per cent. of Consolidated Net Worth at the time of incurrence of any new Liens under this sub-clause 23.15.18; and |
(b) | immediately after giving effect to the incurrence of any Lien pursuant to this sub-clause 23.15.18, no Event of Default shall have occurred and be continuing; |
23.15.19 | Liens on assets received by or of the Original Guarantor or its subsidiaries and held in trust in respect of, or deposited or segregated to secure, liabilities assumed in the course of the reinsurance business or under any Insurance Contracts, Reinsurance Agreements, Fronting Arrangements or other indemnity arrangements entered in the ordinary course of business, Liens on assets held in any Lloyd's Trust Fund and/or Liens on assets held in any insurance brokering account; |
23.15.20 | Liens not securing indebtedness for borrowed money on Cash and securities arising in the ordinary course of business in connection with the structured risk insurance and reinsurance product lines of the Original Guarantor or its subsidiaries; |
23.15.21 | Liens arising in connection with securities lending arrangements entered into by the Original Guarantor or any of its subsidiaries with financial institutions in the ordinary course of business so long as any securities subject to any such securities lending arrangement do not constitute Collateral; |
23.15.22 | any title transfer or retention of title arrangement entered into by any member of the Group in the normal course of its trading activities on the counterparty's standard or usual terms; |
23.15.23 | any Lien over or affecting any asset forming part of a trust fund (or whose proceeds will form part of a trust fund) which is held subject to the provisions of any deed or agreement of the kind referred to in sub-clause 23.15.24 below, where such Lien is created to secure obligations arising under a Syndicate Arrangement; |
23.15.24 | any Lien granted or subsisting under any deed or agreement required by Lloyd's to be executed or entered into by or on behalf of a member of the Group in connection with its insurance business at Lloyd's; |
23.15.25 | Liens pursuant to any agreement entered into from time to time between the Managing Agent and any custodian and any investment manager of or in respect of the syndicate's assets; and |
23.15.26 | without duplication of the Liens described in sub-clauses 23.15.1 through 23.15.25 above, additional Liens securing obligations of the Original Guarantor or its subsidiaries provided that: |
(a) | the aggregate amount of such Liens (measured, as to each such Lien permitted under this sub-clause 23.15.26, as the greater of the amount secured by such Lien and the fair market value at such time of the assets subject to such Lien) shall not, when added to the aggregate amount of all Liens (measured as set forth in this sub-clause 23.15.26, above) incurred pursuant to sub-clause 23.15.18 above and the aggregate amount of outstanding unsecured Indebtedness of subsidiaries of the Original Guarantor incurred pursuant to paragraph (i) of the definition of "Permitted Subsidiary Indebtedness", exceed at any time 5 per cent. of |
(b) | immediately after giving effect to the incurrence of any Lien pursuant to this sub-clause 23.15.26, no Event of Default shall have occurred and be continuing. |
23.16 | Indebtedness |
23.16.1 | The Original Guarantor shall not create, incur, assume or permit to exist any Indebtedness, or agree, become or remain liable (contingent or otherwise) to do any of the foregoing, except for the Indebtedness under the Finance Documents, Indebtedness under the Four-Year Secured Letter of Credit Facility, Indebtedness under the Four-Year Unsecured Letter of Credit Facility, Indebtedness under the Citi Facility, Indebtedness under the IPC Facility, Indebtedness under the Flagstone Facility, Indebtedness under the Pac Re Facility and other Indebtedness which either ranks pari passu with, or subordinate in right of payment to, any such Indebtedness (it being understood that unsecured Indebtedness is not subordinate to secured Indebtedness solely because it is unsecured, and Indebtedness that is not guaranteed by a particular person is not deemed to be subordinate to Indebtedness that is so guaranteed solely because it is not so guaranteed). |
23.16.2 | The Original Guarantor shall ensure that none of its subsidiaries will create, incur, assume or permit to exist any Indebtedness, or agree, become or remain liable (contingent or otherwise) to do any of the foregoing, except for Permitted Subsidiary Indebtedness. |
23.17 | Sale and Lease-Back Transactions |
23.18 | Issuance of Stock |
23.18.1 | either: |
(a) | no part of such preferred or preference equity securities or Hybrid Capital is mandatorily redeemable (whether on a scheduled basis or as a result of the occurrence of any event or circumstance) prior to the date occurring six months after 31 December 2016; or |
(b) | all such preferred or preference equity securities or Hybrid Capital or options therefor are issued to and held by the Original Guarantor or its Wholly-Owned Subsidiaries; and |
23.18.2 | such preferred or preference equity securities or Hybrid Capital do not contain any financial performance related covenants or incurrence covenants which restrict the operations of the issuer thereof, |
23.19 | Dissolution |
23.20 | Restricted Payments |
23.20.1 | The Original Guarantor shall not declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its stockholders, partners or members (or the equivalent persons thereof) as such, make any distribution of assets, Equity Interests, obligations or securities to its stockholders, partners or members (or the equivalent persons thereof) as such, or permit any of its subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any Equity Interests in the Original Guarantor or to sell any Equity Interests therein (each of the foregoing a "Dividend" and, collectively, "Dividends") provided that this Clause 23.20 shall not prohibit Dividends so long as before and after giving effect (including pro forma effect) thereto, no Default or Event of Default shall have occurred and be continuing. |
23.20.2 | Notwithstanding sub-clause 23.20.1 above, the Original Guarantor may declare and pay cash dividends or distributions in respect of: |
(a) | any trust preferred security, deferrable interest subordinated debt security, mandatory convertible debt or other hybrid security (including Hybrid |
(b) | any Preferred Security, |
23.21 | Transactions with Affiliates |
23.21.1 | transactions with Affiliates on terms not materially less favourable to the Original Guarantor or such subsidiary than those that could have been obtained in a comparable transaction on an arm's length basis from an unrelated person; |
23.21.2 | Dividends not prohibited by Clause 23.20 (Restricted Payments); |
23.21.3 | fees and compensation paid to and indemnities provided on behalf of officers and directors of the Original Guarantor or any of its subsidiaries as reasonably determined in good faith by the board of directors, the audit committee or senior management of the Original Guarantor; and |
23.21.4 | the issuance of common stock of the Original Guarantor; |
23.21.5 | loans and advances to officers and directors made in the ordinary course of business; |
23.21.6 | transactions permitted by Clause 23.13 (Changes in Business or Organisational Documents) or Clause 23.15 (Liens); |
23.21.7 | transactions and payments pursuant to agreements and arrangements disclosed in, or listed as an exhibit to, the Original Guarantor’s annual report on Form 10-K filed with the SEC on 15 February 2013 or any subsequent other filing with the SEC through the Closing Date or any such agreement or arrangement as thereafter amended, extended or replaced on terms that are, in the aggregate, no less favourable to the Original Guarantor and its subsidiaries than the terms of such agreement on the Closing Date, as the case may be; and |
23.21.8 | any Existing Affiliate Transaction and amendments thereto that are not materially adverse to the Lenders, as reasonably determined by the board of directors of the Original Guarantor, a duly authorised committee thereof or an authorised officer of the Original Guarantor. |
23.22 | Limitation on Certain Restrictions on subsidiaries |
23.22.1 | pay dividends or make any other distributions on its capital stock or any other interest or participation in its profits owned by the Original Guarantor or any of its subsidiaries, or pay any Indebtedness owed to the Original Guarantor or any of its subsidiaries; |
23.22.2 | make loans or advances to the Original Guarantor or any of its subsidiaries; or |
23.22.3 | transfer any of its properties or assets to the Original Guarantor or any of its subsidiaries, |
(a) | applicable Legal Requirements, including any Applicable Insurance Regulatory Authority; |
(b) | this Agreement and the other Finance Documents; |
(c) | customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Original Guarantor or any of its subsidiaries; |
(d) | customary provisions restricting assignment of any licensing agreement (in which the Original Guarantor or any of its subsidiaries is the licensee) or other contract (including leases) entered into by the Original Guarantor or any of its subsidiaries in the ordinary course of business; |
(e) | restrictions on the transfer of any asset pending the close of the sale of such asset; |
(f) | restrictions on the transfer of any asset as a result of a Lien permitted by Clause 23.15 (Liens); |
(g) | agreements entered into by a Regulated Insurance Company with an Applicable Insurance Regulatory Authority or ratings agency in the ordinary course of business; |
(h) | customary provisions in partnership agreements, limited liability company organisational governance documents, joint venture agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company, joint venture or similar person; |
(i) | restrictions on Cash or other deposits or net worth imposed by customers under contracts (including Insurance Contracts, Fronting Arrangements and Reinsurance Agreements) entered into in the ordinary course of |
(j) | any encumbrances or restrictions imposed by any amendments or refinancings of the contracts, instruments or obligations referred to in paragraph (i) above provided that such amendments or refinancings are no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing; |
(k) | restrictions placed in accordance with the Segregated Account Companies Act 2000 of Bermuda on the transfer of any asset held, carried or deposited in a segregated account of a Protected Cell Company; |
(l) | restrictions contained in the Four-Year Secured Letter of Credit Facility, restrictions contained in the Four-Year Unsecured Letter of Credit Facility, restrictions contained in the Citi Facility, restrictions contained in the IPC Facility, restrictions contained in the Flagstone Facility, restrictions contained in the Pac Re Facility, restrictions contained in any Merger Financing and restrictions contained in any other indebtedness permitted to be incurred by subsidiaries of the Original Guarantor hereunder so long as such restrictions are no more restrictive, taken as a whole, than the comparable restrictions and conditions set forth in this Agreement, as determined in the good faith judgment of the board of directors of the Original Guarantor; |
(m) | agreements and arrangements listed in Schedule 11 (Existing Intercompany Agreements and Arrangements); |
(n) | an agreement or instrument relating to any Permitted Subsidiary Indebtedness so long as the encumbrances and restrictions in such agreement or instrument are customary for such Indebtedness and are no more restrictive, taken as a whole than the comparable encumbrances and restrictions set forth in the Finance Documents; |
(o) | any instrument governing Indebtedness acquired pursuant to an acquisition not prohibited under this Agreement (or Indebtedness assumed at the time of such acquisition of an asset securing such Indebtedness) provided that such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such acquisition; and |
(p) | agreements or arrangements in respect of: |
(i) | assets held in trust in any Lloyd's Trust Fund; |
(ii) | assets held in any insurance brokering account; and/or |
(iii) | assets held in trust for the benefit of an insured party pursuant to an insurance or reinsurance arrangement entered into in the ordinary course of business. |
23.23 | Private Act |
23.24 | End of Financial Years; Financial Quarters |
23.24.1 | each of its, and each of its material subsidiaries', financial years to end on December 31 of each year; and |
23.24.2 | each of its, and each of its material subsidiaries', financial quarters to end on dates which are consistent with a financial year end as described above. |
23.25 | Condition subsequent |
24. | EVENTS OF DEFAULT |
24.1 | Failure to Pay |
24.1.1 | default in the payment when due of any Unpaid Sum payable pursuant to sub-clause 7.1.1 of Clause 7.1 (Borrower's Indemnity to Lenders), unless such default is caused by a Disruption Event and payment is subsequently made within three Business Days of its due date; |
24.1.2 | default, and such default shall continue for three more Business Days, in the payment when due of any interest on any Unpaid Sum payable pursuant to sub-clause 7.1.1 of Clause 7.1 (Borrower's Indemnity to Lenders); or |
24.1.3 | default, and such default shall continue for five or more Business Days, in the payment when due of any fees or any other amounts payable hereunder or pursuant to any other Finance Documents. |
24.2 | Representations, etc. |
24.3 | Covenants |
24.3.1 | default in the due performance or observance by it of any term, covenant or agreement contained in Clause 21.6 (Notice of Default or Litigation), sub-clause 21.14.2 of Clause 21.14 (Books, Records and Inspections), sub-clause 23.3.1 of Clause 23.3 (Maintenance of Existence; Conduct of Business) or Clause 9.1 (Letters of Credit); or |
24.3.2 | default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Clause 24.1 (Failure to pay), Clause 24.2 (Representations, etc.) and sub-clause 24.3.1 of this Clause 24.3) contained in this Agreement or any other Finance Document and such default shall continue unremedied for a period of 30 days after written notice to the Original Borrower from the Agent or the Majority Lenders. |
24.4 | Default under other Agreements |
24.4.1 | default in any payment of principal or interest with respect to Indebtedness (other than any Indebtedness hereunder) in excess of $50,000,000 individually or in the aggregate (such Indebtedness being "Material Indebtedness"); or |
24.4.2 | default in the observance or performance of any agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (with or without the giving of notice, the lapse of time or both), any such Material Indebtedness to become due prior to its stated maturity. |
24.5 | Bankruptcy, etc. |
24.5.1 | Any Obligor, any Regulated Insurance Company or any material subsidiary of Validus Reinsurance, Ltd. shall commence a voluntary case concerning itself under Title 11 of the US Code entitled "Bankruptcy", as now or hereafter in effect, or any successor thereto (the "Bankruptcy Code"); |
24.5.2 | an involuntary case is commenced against any such person and the petition is not dismissed within 60 days, after commencement of the case; |
24.5.3 | a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of any such person or any such person commences (including by way of applying for or consenting to the appointment of, or the taking of possession by, a rehabilitator, receiver, custodian, bankruptcy trustee, conservator or liquidator (collectively, a "conservator") of itself or all or any substantial portion of its property) any other proceeding under any reorganisation, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, liquidation, rehabilitation, supervision, conservatorship or similar law of any jurisdiction or the Bermuda Companies Law whether now or hereafter in effect relating to any such person; |
24.5.4 | any such proceeding is commenced against any such person and such proceeding is not dismissed within 60 days; |
24.5.5 | any such person is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; |
24.5.6 | any such person suffers any appointment of any conservator or the like for it or any substantial part of its property which continues undischarged or unstayed for a period of 60 days; or |
24.5.7 | any such person makes a general assignment for the benefit of creditors; or any corporate action is taken by any such person for the purpose of effecting any of the foregoing. |
24.6 | ERISA |
24.6.1 | An event or condition specified in sub-clauses 23.5.1 to 23.5.6 Clause 23.5 (ERISA) shall occur or exist with respect to any Plan or Multiemployer Plan or Foreign Pension Plan; |
24.6.2 | the Original Guarantor or any of its ERISA Affiliates shall fail to pay when due any amount which they shall have become liable to pay to the PBGC or to a Plan or a Multiemployer Plan under Title IV of ERISA; or |
24.6.3 | a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated, |
24.7 | Judgments |
24.8 | Insurance Licenses |
24.9 | Change of Control |
24.10 | Security Documents |
24.10.1 | Any Security Document shall cease to be in full force and effect, or shall cease to give the Security Trustee the Liens, rights, powers and privileges purported to be created thereby (including a first priority security interest in, and Lien on, all of the Collateral subject thereto, in favour of the Security Trustee, subject to the Legal Reservations and to Liens having priority by operation of law, superior to and prior to the rights of all third persons and subject to no other Liens), except to the extent resulting from the Security Trustee's failure to maintain possession of Collateral delivered to it by any Obligor, any of their respective subsidiaries or the Account Party; or |
24.10.2 | any other pledgor thereunder shall default in the due performance or observance of: |
(a) | any material term, covenant or agreement on its part to be performed or observed pursuant to any Security Document; or |
(b) | any other term, covenant or agreement on its part to be performed or observed pursuant to any Security Document and such default shall continue unremedied for a period of 30 days after written notice to the Original Borrower from the Agent or the Majority Lenders. |
24.11 | Validus Guarantee |
24.12 | Unlawfulness |
24.13 | Repudiation |
24.14 | Acceleration and Cancellation |
24.14.1 | require each Borrower to procure that the liabilities of the Lenders under each Letter of Credit are promptly reduced to zero (whereupon each Borrower shall do so); and/or |
24.14.2 | declare that any unutilised portion of the Facility shall be cancelled, whereupon the same shall be cancelled and the Available Commitment of each Lender shall be reduced to zero; and/or |
24.14.3 | require each Borrower to use all reasonable endeavours to procure that all Letters of Credit are cancelled and returned by Lloyd's to the Agent; and/or |
24.14.4 | direct the Security Trustee to enforce any or all of the Liens and security interests created pursuant to the Security Documents and/or exercise any of the rights and remedies provided therein; and/or |
24.14.5 | deliver a Notice of Non-Extension to Lloyd's in relation to each Letter of Credit then outstanding. |
25. | CHANGES TO THE LENDERS |
25.1 | Assignments and transfers by the Lenders |
25.1.1 | assign any of its rights; or |
25.1.2 | transfer by novation any of its rights and obligations, |
25.2 | Conditions of assignment or transfer |
25.2.1 | The consent of the Original Guarantor is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is: |
(a) | to another Lender or an Affiliate of a Lender; or |
(b) | made at a time when an Event of Default is continuing. |
25.2.2 | The consent of the Original Guarantor to an assignment or transfer must not be unreasonably withheld or delayed. The Original Guarantor will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Original Guarantor within that time. |
25.2.3 | An assignment will only be effective on: |
(a) | 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 and the other Secured Parties as it would have been under if it was an Original Lender; and |
(b) | 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. |
25.2.4 | A transfer will only be effective if the procedure set out in Clause 25.5 (Procedure for transfer) is complied with. |
25.2.5 | If: |
(a) | a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and |
(b) | as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 11 (Tax Gross-up and Indemnities) or Clause 12 (Increased Costs), |
25.2.6 | Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender. |
25.3 | Limitation of responsibility of Existing Lenders |
25.3.1 | Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
(a) | the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents; |
(b) | the financial condition of any Obligor or any other member of the Group that is party to a Finance Document; |
(c) | the performance and observance by any Obligor or any other member of the Group that is party to a Finance Document of its obligations under the Finance Documents or any other documents; or |
(d) | the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document, |
25.3.2 | Each New Lender confirms to the Existing Lender and the other Finance Parties that it: |
(a) | has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor, each other member of the Group that is party to a Finance Document and |
(b) | will continue to make its own independent appraisal of the creditworthiness of each Obligor, each other member of the Group that is party to a Finance Document and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force. |
25.3.3 | Nothing in any Finance Document obliges an Existing Lender to: |
(a) | accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 25; or |
(b) | support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor or any other member of the Group that is party to a Finance Document of its obligations under the Finance Documents or otherwise. |
25.4 | Transfer Fees |
25.5 | Procedure for transfer |
25.5.1 | Subject to the conditions set out in Clause 25.2 (Conditions of assignment or transfer) a transfer is effected in accordance with sub-clause 25.5.3 below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to sub-clause 25.5.2 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. |
25.5.2 | 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. Upon execution of the Transfer Certificate, the Agent may specify a Transfer Date to the Existing Lender and the New Lender provided that if no such date is specified by the Agent upon such execution, the Transfer Date shall be the proposed Transfer Date specified in the Transfer Certificate. The Agent will, upon receipt of a duly executed Transfer Certificate, (a) advise Lloyd's that a transfer will be made in respect of such Letter of Credit on the proposed Transfer Date, and (b) request that Lloyd's return the relevant Letter of Credit (the "Original Letter of Credit") to the Agent on or prior to such proposed Transfer Date. |
25.5.3 | On the Transfer Date: |
(a) | provided that the Agent shall have received the Original Letter of Credit from Lloyd's in accordance with sub-clause 25.5.2 above or shall have made arrangements with Lloyd's for the exchange of the Original Letter of Credit for a new Letter of Credit (the "Replacement Letter of Credit") immediately after the transfer has become effective, the Agent shall execute the Transfer Certificate. The Replacement Letter of Credit shall name the New Lender as an "Issuing Lender" thereunder and shall otherwise be for the same amount and on the same terms as the Original Letter of Credit for the remainder of the Term of such Original Letter of Credit; |
(b) | to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security each of the Obligors, each other member of the Group that is party to a Finance Document and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another shall be cancelled (being the "Discharged Rights and Obligations"); |
(c) | each of the Obligors, each other member of the Group that is party to a Finance Document 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 that Obligor, other member of the Group and the New Lender have assumed and/or acquired the same in place of that Obligor, other member of the Group and the Existing Lender; |
(d) | the Agent, the Arranger, the Security Trustee, the New Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger, the Security Trustee and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and |
(e) | the New Lender shall become a Party as a "Lender". |
25.6 | Copy of Transfer Certificate to Original Borrower |
25.7 | Security over Lenders' rights |
25.7.1 | any charge, assignment or other Liens to secure obligations to a federal reserve or central bank, governmental authorities, agencies or departments (including HM Treasury) or other authorised government bodies; and |
25.7.2 | in the case of any Lender which is a fund, any charge, assignment or other Liens granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, |
(a) | release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Liens for the Lender as a party to any of the Finance Documents; or |
(b) | require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents. |
25.8 | Additional Lenders |
26. | CHANGES TO THE OBLIGORS |
26.1 | Assignment and transfers by Obligors |
26.2 | Additional Borrowers |
26.2.1 | Subject to compliance with the provisions of sub-clauses 21.15.3 and 21.15.4 of Clause 21.15 ("Know your customer" checks), the Original Guarantor may request that any of its wholly owned subsidiaries becomes a Borrower. That subsidiary shall become a Borrower if: |
(a) | all the Lenders approve the addition of that subsidiary; |
(b) | the Original Guarantor and that subsidiary deliver to the Agent a duly completed and executed Obligor Accession Letter; |
(c) | the subsidiary is (or becomes) a Guarantor prior to becoming a Borrower; |
(d) | the Original Guarantor confirms that no Default is continuing or would occur as a result of that subsidiary becoming an Additional Borrower; and |
(e) | the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent. |
26.2.2 | The Agent shall notify the Original Guarantor and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent). |
26.3 | Resignation of a Borrower |
26.3.1 | With the prior consent of all the Lenders, the Original Guarantor may request that a Borrower (other than the Original Borrower) ceases to be a Borrower by delivering to the Agent an Obligor Resignation Letter. |
26.3.2 | The Agent shall accept an Obligor Resignation Letter and notify the Original Guarantor and the other Finance Parties of its acceptance if: |
(a) | the Original Guarantor has confirmed that no Default is continuing or would result from the acceptance of the Obligor Resignation Letter; |
(b) | that Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents; and |
(c) | where that Borrower is also a Guarantor (unless its resignation has been accepted in accordance with Clause 26.5 (Resignation of a Guarantor)), its obligations in its capacity as Guarantor continue to be legal, valid, binding and enforceable and in full force and effect (subject to the Legal Reservations) and the amount guaranteed by it as a Guarantor is not decreased (and the Original Guarantor has confirmed this is the case). |
26.3.3 | Upon notification by the Agent to the Original Guarantor of its acceptance of the resignation of a Borrower, that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents as a Borrower. |
26.3.4 | The Agent may, at the cost and expense of the Original Guarantor, require a legal opinion from counsel to the Agent confirming the matters set out in paragraph (c) of sub-clause 26.3.2 above and the Agent shall be under no obligation to accept an Obligor Resignation Letter until it has obtained such opinion in form and substance satisfactory to it. |
26.4 | Additional Guarantors |
26.4.1 | Subject to compliance with the provisions of sub-clauses 21.15.3 and 21.15.4 of Clause 21.15 ("Know your customer" checks), the Original Guarantor may request that any of its wholly owned subsidiaries become a Guarantor. That subsidiary shall become an Additional Guarantor if: |
(a) | the Original Guarantor and the proposed Additional Guarantor deliver to the Agent a duly completed and executed Obligor Accession Letter; and |
(b) | the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions Precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent. |
26.4.2 | The Agent shall notify the Original Guarantor and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent). |
26.5 | Resignation of a Guarantor |
26.5.1 | The Original Guarantor may request that a Guarantor (other than the Original Guarantor) ceases to be a Guarantor by delivering to the Agent an Obligor Resignation Letter if all the Lenders have consented to the resignation of that Guarantor. |
26.5.2 | The Agent shall accept an Obligor Resignation Letter and notify the Original Guarantor and the Lenders of its acceptance if: |
(a) | the Original Guarantor has confirmed that no Default is continuing or would result from the acceptance of the Obligor Resignation Letter; |
(b) | no payment is due from the Guarantor under Clause 19 (Guarantee and indemnity); and |
(c) | where the Guarantor is also a Borrower, it is under no actual or contingent obligations as a Borrower and has resigned and ceased to be a Borrower under Clause 26.3 (Resignation of a Borrower). |
26.5.3 | Upon notification by the Agent to the Original Guarantor of its acceptance of the resignation of a Guarantor, that company shall cease to be a Guarantor and shall have no further rights or obligations under the Finance Documents as a Guarantor. |
26.6 | Repetition of Representations |
27. | ROLE OF THE AGENT AND THE ARRANGER |
27.1 | Appointment of the Agent |
27.1.1 | Each other Finance Party (other than the Security Trustee) appoints the Agent to act as its agent under and in connection with the Finance Documents. |
27.1.2 | 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. |
27.2 | Duties of the Agent |
27.2.1 | 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. |
27.2.2 | 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. |
27.2.3 | 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. |
27.2.4 | 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, the Arranger or the Security Trustee) under this Agreement it shall promptly notify the other Finance Parties. |
27.2.5 | The Agent's duties under the Finance Documents are solely mechanical and administrative in nature. |
27.3 | Role of the Arranger |
27.4 | No fiduciary duties |
27.4.1 | Nothing in this Agreement constitutes the Agent or the Arranger as a trustee or fiduciary of any other person. |
27.4.2 | Neither the Agent nor the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account. |
27.5 | Business with the Group |
27.6 | Rights and discretions of the Agent |
27.6.1 | The Agent may rely on: |
(a) | any representation, notice or document believed by it to be genuine, correct and appropriately authorised; |
(b) | 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; and |
(c) | a certificate from any person: |
(i) | as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
(ii) | to the effect that such person approves of any particular dealing, transaction, step, action or thing, |
27.6.2 | The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: |
(a) | no Default has occurred (unless it has actual knowledge of a Default arising under Clause 24.1 (Failure to pay)); |
(b) | any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and |
(c) | any notice or request made by a Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of each Guarantor. |
27.6.3 | The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other professional advisers or experts. |
27.6.4 | Without prejudice to the generality of clause 27.6.3 above, or clause 27.6.5 below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be desirable. |
27.6.5 | The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers of experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs |
27.6.6 | The Agent may act in relation to the Finance Documents through its officers, employees and agents and the Agent shall not: |
(a) | be liable for any error of judgment made by any such person; or |
(b) | be bound to supervise, or be in any way responsible for, any loss incurred by reason of misconduct, omission or default on the part, of any such person, |
27.6.7 | Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any information it reasonably believes it has received as Agent under this Agreement. |
27.6.8 | Without prejudice to the generality of clause 27.6.7 above, the Agent shall, as soon as reasonably practicable after written notice is provided by a Party, disclose the identity of a Defaulting Lender to the Borrower and to the other Finance Parties. |
27.6.9 | Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is 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. |
27.6.10 | The Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Agent by any Lender for the purpose of paragraph (a)(ii) of Clause 5 (Market Disruption and Alternative Interest Rates). |
27.7 | Majority Lenders' instructions |
27.7.1 | Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in it as 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 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. |
27.7.2 | The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Agent may refrain from acting unless and until it receives those instructions or that clarification. |
27.7.3 | Unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all the Finance Parties other than the Security Trustee. |
27.7.4 | 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. |
27.7.5 | 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. |
27.7.6 | 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. This clause 27.7.6 shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Transaction Security or Security Documents. |
27.8 | Responsibility for documentation |
27.8.1 | the adequacy, accuracy and/or completeness of any information (whether oral or written) provided by the Agent, the Arranger, an Obligor or any other person given in or in connection with any Finance Document or the transactions contemplated by the Finance Documents; or |
27.8.2 | the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document or the Transaction Security. |
27.9 | No duty to monitor |
27.9.1 | whether or not any Default has occurred; |
27.9.2 | as to the performance, default or any breach by any Party of its obligations under any Finance Document; or |
27.9.3 | whether any other event specified in any Finance Document has occurred. |
27.10 | Exclusion of liability |
27.10.1 | Without limiting sub-clause 27.10.2 below (and without prejudice to the provisions of sub-clause 31.11.5 of Clause 31.11 (Disruption to Payment Systems |
(a) | any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Transaction Security, unless caused by its gross negligence or wilful misconduct; |
(b) | exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Transaction Security; or |
(c) | without prejudice to the generality of paragraphs (a) and (b) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of: |
(i) | any act, event or circumstance not reasonably within its control; or |
(ii) | the general risks of investment in, or the holding of assets in, any jurisdiction, |
27.10.2 | 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. |
27.10.3 | 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. |
27.10.4 | Nothing in this Agreement shall oblige the Agent or the Arranger to carry out any "know your customer" or other checks in relation to any person on behalf of |
27.10.5 | Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the Agent arising under or in connection with any Finance Document or the Transaction Security shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages. |
27.11 | Lenders' indemnity to the Agent |
27.11.1 | Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments 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 31.11 (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 Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor or any other member of the Group that is party to a Finance Document pursuant to a Finance Document). |
27.11.2 | Subject to clause 27.11.3 below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Agent pursuant to Clause 27.11.1 above. |
27.11.3 | Clause 27.11.2 shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Agent to an Obligor. |
27.12 | Resignation of the Agent |
27.12.1 | 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 Original Borrower. |
27.12.2 | Alternatively the Agent may resign by giving notice to the other Finance Parties and the Original Borrower, in which case the Majority Lenders (after consultation with the Original Borrower) may appoint a successor Agent. |
27.12.3 | If the Majority Lenders have not appointed a successor Agent in accordance with sub-clause 27.12.2 above within 30 days after notice of resignation was given, the Agent (after consultation with the Original Borrower) may appoint a successor Agent (acting through an office in the United Kingdom). |
27.12.4 | If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under clause 27.12.3 above, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) with the written consent of the Original Borrower and Original Guarantor, agree with the proposed successor Agent amendments to this Clause 27 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties. |
27.12.5 | The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) 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 Agent under the Finance Documents. |
27.12.6 | The Agent's resignation notice shall only take effect upon the appointment of a successor. |
27.12.7 | Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under clause 27.12.5 above) but shall remain entitled to the benefit of this Clause 27. 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. |
27.12.8 | After consultation with the Original Borrower, the Majority Lenders may, by no less that 30 days' notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders), require it to resign in accordance with sub-clause 27.12.2 above. In this event, the Agent shall resign in accordance with sub-clause 27.12.2 above. |
27.13 | Confidentiality |
27.13.1 | 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. |
27.13.2 | 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. |
27.13.3 | Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would or might in its reasonable opinion constitute a breach of any law or a breach of a fiduciary duty. |
27.14 | Relationship with the Lenders |
27.14.1 | 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 Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement. |
27.14.2 | Each Secured Party shall supply the Agent with any information that the Security Trustee may reasonably specify (through the Agent) as being necessary or desirable to enable the Security Trustee to perform its functions as security trustee. Each Lender shall deal with the Security Trustee exclusively through the Agent and shall not deal directly with the Security Trustee. |
27.14.3 | Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 34.6 (Electronic Communication)) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 34.2 (Addresses) and paragraph (a)(ii) of Clause 34.6 (Electronic Communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender. |
27.15 | Credit appraisal by the Lenders |
27.15.1 | the financial condition, creditworthiness, condition, affairs, status and nature of each member of the Group; |
27.15.2 | the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; |
27.15.3 | 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 Transaction Security, 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; |
27.15.4 | the adequacy, accuracy and/or completeness of any information provided by the Agent, the Security Trustee, 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; and |
27.15.5 | the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Liens affecting the Charged Property, |
27.16 | Agent's Management Time |
27.17 | Deduction from amounts payable by the Agent |
27.18 | Reliance and engagement letters |
28. | ROLE OF SECURITY TRUSTEE |
28.1 | Trust |
28.2 | No Independent Power |
28.3 | Security Trustee's Instructions |
28.3.1 | unless a contrary indication appears in a Finance Document, act in accordance with any instructions given to it by the Agent and shall be entitled to assume that (i) any instructions received by it from the Agent are duly given by or on behalf of the Majority Lenders or, as the case may be, the Lenders in accordance with the terms of the Finance Documents and (ii) unless it has received actual notice of revocation that any instructions or directions given by the Agent have not been revoked; |
28.3.2 | be entitled to request instructions, or clarification of any direction, from the Agent as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it; and |
28.3.3 | be entitled to, carry out all dealings with the Lenders through the Agent and may give to the Agent any notice or other communication required to be given by the Security Trustee to the Lenders. |
28.4 | Security Trustee's Actions |
28.4.1 | the Security Trustee may, in the absence of any instructions to the contrary, take such action in the exercise of any of its powers and duties under the Finance |
28.4.2 | at any time after receipt by the Security Trustee of notice from the Agent directing the Security Trustee to exercise all or any of its rights, remedies, powers or discretions under any of the Finance Documents, the Security Trustee may, and shall if so directed by the Agent, take any action as in its sole discretion it thinks fit to enforce the Transaction Security. |
28.5 | Security Trustee's Discretions |
28.5.1 | assume (unless it has received actual notice to the contrary in its capacity as Security Trustee for the Secured Parties) that (i) no Default has occurred and no Obligor or any other member of the Group that is party to a Finance Document is in breach of or default under its obligations under any of the Finance Documents (ii) any right, power, authority or discretion vested in any person has not been exercised; and (iii) any notice made by the Borrower is made on behalf of and with the consent and knowledge of all the Obligors. |
28.5.2 | if it receives any instructions or directions from the Agent to take any action in relation to the Transaction Security, assume that all applicable conditions under the Finance Documents for taking that action have been satisfied; |
28.5.3 | rely on a certificate from any person: |
(a) | as to any matter or fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
(b) | to the effect that such person approves of any particular dealing, transaction, step, action or thing, |
28.5.4 | engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts (whether obtained by the Security Trustee or by any other Secured Party) whose advice or services may at any time seem necessary, expedient or desirable and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying; |
28.5.5 | along with any Receiver and any Delegate, act in relation to the Finance Documents and the Transaction Security through its officers, employees and agents and shall not: |
(a) | be liable for any error of judgment made by any such person; or |
(b) | be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person, |
28.5.6 | unless this Agreement expressly specifies otherwise, disclose to any other Finance Party any information it reasonably believes it has received as Security Trustee under this Agreement; |
28.5.7 | rely upon any communication or document believed by it to be genuine and, as to any matters of fact which might reasonably be expected to be within the knowledge of a Secured Party, an Obligor or any other member of the Group that is party to a Finance Document, upon a certificate signed by or on behalf of that person; and |
28.5.8 | refrain from acting in accordance with the instructions of the Agent or Lenders (including bringing any legal action or proceeding arising out of or in connection with the Finance Documents) until it has received any indemnification and/or security that it may in its absolute discretion require (whether by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in bringing such action or proceedings. |
28.6 | Security Trustee's Obligations |
28.6.1 | the contents of any notice or document received by it in its capacity as Security Trustee from any Obligor or any other member of the Group that is party to a Finance Document under any Finance Document; and |
28.6.2 | the occurrence of any Default or any default by an Obligor or any other member of the Group that is party to a Finance Document in the due performance of or compliance with its obligations under any Finance Document of which the Security Trustee has received notice from any other party to this Agreement or any other Finance Document. |
28.7 | Excluded Obligations |
28.7.1 | be bound to enquire as to (i) whether or not any Default has occurred (ii) the performance, default or any breach by an Obligor or any other member of the Group that is party to a Finance Document of its obligations under any of the Finance Documents or (iii) whether any other event specified in any Finance Document has occurred; |
28.7.2 | be bound to account to any other Secured Party for any sum or the profit element of any sum received by it for its own account; |
28.7.3 | be bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other information if disclosure would, or might in its reasonable opinion, constitute a breach of any law or be a breach of fiduciary duty; |
28.7.4 | be under any obligations other than those which are specifically provided for in the Finance Documents; |
28.7.5 | be obliged to carry out: |
(a) | any "know your customer" or other checks in relation to any person; or |
(b) | any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender, |
28.7.6 | notwithstanding any provision of any Finance Document to the contrary, be obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it; |
28.7.7 | without prejudice to Clause 33.1 (Order of Application), have or be deemed to have any duty, obligation or responsibility to, or relationship of trust or agency with, any Obligor or any other member of the Group that is party to a Finance Document except those to or with the Obligors which are expressly set forth in the relevant Finance Document (to the extent that the Parties are permitted by law to exclude such duty, obligation, responsibility or relationship, except to the extent arising as a result of its gross negligence or wilful misconduct); or |
28.7.8 | without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Trustee, any Receiver or Delegate, any liability of the Security Trustee, any Receiver or Delegate arising under or in connection with any Finance Document or the Transaction Security shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Trustee, Receiver or Delegate (as the case may be) or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Trustee, Receiver or Delegate (as the case may be) at any time which increase the amount of that loss. In no event shall the Security Trustee, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, |
28.8 | Exclusion of Security Trustee's liability |
28.8.1 | the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Security Trustee or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents; |
28.8.2 | the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document or the Transaction Security; |
28.8.3 | any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Finance Documents or the Transaction Security or otherwise, whether in accordance with an instruction from the Agent or otherwise, unless caused by its gross negligence or wilful misconduct; |
28.8.4 | the exercise of, or the failure to exercise, any judgement, discretion or power given to it by or in connection with any of the Finance Documents, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, the Finance Documents or the Transaction Security; |
28.8.5 | any shortfall which arises on the enforcement of the Transaction Security (to the extent that the Parties are permitted by law to exclude such responsibility or liability); or |
28.8.6 | without prejudice to the generality of clauses 28.8.1-28.8.5 above, any damages, costs, losses, any diminution in value or any liability whatsoever arising as a result of: |
(a) | any act, event or circumstance not reasonably within its control; or |
(b) | the general risks of investment in, or the holding of assets in, any jurisdiction, |
28.9 | No proceedings |
28.10 | Information from the Lenders |
28.11 | Own responsibility |
28.11.1 | the financial condition, creditworthiness, condition, affairs, status and nature of each member of the Group; |
28.11.2 | the legality, validity, effectiveness, adequacy and enforceability of any Finance Document and the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Transaction Security; |
28.11.3 | whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any other person or any of their respective assets under or in connection with any Finance Document, the Transaction Security, 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 or the Transaction Security; |
28.11.4 | the adequacy, accuracy and/or completeness of any information provided by the Security Trustee 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; and |
28.11.5 | the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Liens affecting the Charged Property, |
28.12 | Reliance and engagement letters |
28.13 | No responsibility to perfect Transaction Security |
28.13.1 | require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor or any other member of the Group that is party to a Finance Document to any of the Charged Property; |
28.13.2 | obtain any license, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Finance Documents or the Transaction Security; |
28.13.3 | register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any jurisdiction or to give notice to any person of the execution of any of the Finance Documents or of the Transaction Security; |
28.13.4 | take, or to require any of the Obligors or any other member of the Group that is party to a Finance Document to take, any steps to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Liens under the laws of any jurisdiction; or |
28.13.5 | require any further assurances in relation to any of the Security Documents. |
28.14 | Insurance by Security Trustee |
28.14.1 | The Security Trustee shall not be under any obligation to insure any of the Charged Property, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Finance Documents. The Security Trustee shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance. |
28.14.2 | Where the Security Trustee is named on any insurance policy as an insured party, it shall not be responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by the insurers or any other information of any kind, unless any Secured Party has requested it to do so in writing and the Security Trustee has failed to do so within fourteen days after receipt of that request. |
28.15 | Custodians and Nominees |
28.16 | Acceptance of Title |
28.17 | Refrain from Illegality |
28.18 | Business with the Obligors |
28.19 | Releases |
28.19.1 | pursuant to the enforcement of the Transaction Security by a Receiver or the Security Trustee; or |
28.19.2 | if that disposal is permitted under the Finance Documents, |
28.20 | Winding up of Trust |
28.21 | Powers Supplemental |
28.22 | Trustee division separate |
28.22.1 | In acting as trustee for the Secured Parties, the Security Trustee shall be regarded as acting through its agency or trustee division which shall be treated as a separate entity from any other of its divisions or departments. |
28.22.2 | If information is received by another division or department of the Security Trustee, it may be treated as confidential to that division or department and the Security Trustee shall not be deemed to have notice of it. |
28.22.3 | Notwithstanding any other provision of any Finance Document to the contrary, the Security Trustee is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty. |
28.23 | Lender's indemnity to the Security Trustee |
28.23.1 | Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Trustee, within three Business Days of demand, against any cost, loss or liability incurred by the Security Trustee (otherwise than by reason of the Security Trustee's gross negligence or wilful misconduct) in acting as Security Trustee under the Finance Documents (unless the Security Trustee has been reimbursed by an Obligor or any other member of the Group that is party to a Finance Document pursuant to a Finance Document). |
28.23.2 | Subject to clause 28.23.3 below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Trustee pursuant to clause 28.23.1 above. |
28.23.3 | Clause 28.23.2 above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Trustee to an Obligor. |
28.24 | Disapplication |
28.25 | Resignation of Security Trustee |
28.25.1 | The Security Trustee may resign and appoint one of its Affiliates as successor by giving notice to the Original Guarantor and to the Agent (on behalf of the Lenders). |
28.25.2 | Alternatively the Security Trustee may resign by giving notice to the other Parties (or to the Agent on behalf of the Lenders) in which case the Majority Lenders may (after consultation with the Original Borrower) appoint a successor Security Trustee. |
28.25.3 | If the Majority Lenders have not appointed a successor Security Trustee in accordance with sub-clause 28.25.2 above within 30 days after the notice of resignation was given, the Security Trustee (after consultation with the Agent) may appoint a successor Security Trustee. |
28.25.4 | The retiring Security Trustee shall, at its own cost, make available to the successor Security Trustee such documents and records and provide such assistance as the successor Security Trustee may reasonably request for the purposes of performing its functions as Security Trustee under the Finance Documents. |
28.25.5 | The Security Trustee's resignation notice shall only take effect upon (i) the appointment of a successor and (ii) the transfer of all of the Transaction Security to that successor. |
28.25.6 | Upon the appointment of a successor, the retiring Security Trustee shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of Clauses 27 (Role of the Agent and the Arranger) and 28 (Role of Security Trustee). 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. |
28.25.7 | The Majority Lenders may, by notice to the Security Trustee, require it to resign in accordance with sub-clause 28.25.2 above. In this event, the Security Trustee shall resign in accordance with sub-clause 28.25.2 above. |
28.26 | Delegation |
28.26.1 | The Security Trustee may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Finance Documents. |
28.26.2 | The delegation may be made upon any terms and conditions (including the power to sub-delegate) and subject to any restrictions that the Security Trustee may think fit in the interests of the Secured Parties and it shall not be bound to supervise, or be in any way responsible for any loss incurred by reason of any misconduct or default on the part of any Delegate or sub-delegate. |
28.27 | Additional Security Trustees |
28.27.1 | The Security Trustee may at any time appoint (and subsequently remove) any person to act as a separate security trustee or as a co-security trustee jointly with it (i) if it considers that appointment to be in the interests of the Secured Parties or (ii) for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Trustee deems to be relevant or (iii) for obtaining or enforcing any judgment in any jurisdiction, and the Security Trustee shall give prior notice to the Original Borrower and the Agent of that appointment. |
28.27.2 | Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Trustee by this Agreement) and the duties and obligations that are conferred or imposed by the instrument of appointment. |
28.27.3 | The remuneration that the Security Trustee may pay to any person, and any costs and expenses incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Trustee. |
29. | CONDUCT OF BUSINESS BY THE FINANCE PARTIES |
29.1.1 | interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; |
29.1.2 | 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 |
29.1.3 | oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax. |
30. | SHARING AMONG THE FINANCE PARTIES |
30.1 | Payments to Finance Parties |
30.1.1 | the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent; |
30.1.2 | 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 31 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and |
30.1.3 | the Recovering Finance Party shall, within three 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 Clause 31.5 (Partial payments). |
30.2 | Redistribution of payments |
30.3 | Recovering Finance Party's rights |
30.3.1 | On a distribution by the Agent under Clause 30.2 (Redistribution of payments), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution. |
30.3.2 | If and to the extent that the Recovering Finance Party is not able to rely on its rights under sub-clause 30.3.1 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. |
30.4 | Reversal of redistribution |
30.4.1 | each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 30.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for 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 |
30.4.2 | 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. |
30.5 | Exceptions |
30.5.1 | This Clause 30 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause 30, have a valid and enforceable claim against the relevant Obligor. |
30.5.2 | 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: |
(a) | it notified that other Finance Party of the legal or arbitration proceedings; and |
(b) | 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. |
31. | PAYMENT MECHANICS |
31.1 | Payments to the Agent |
31.1.1 | On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or 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. |
31.1.2 | Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Agent specifies. |
31.2 | Distributions by the Agent |
31.3 | Distributions to an Obligor |
31.4 | Clawback |
31.4.1 | 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. |
31.4.2 | 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. |
31.5 | Impaired Agent |
31.5.1 | If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 31.1 (Payments to the Agent) may instead either: |
(a) | pay that amount direct to the required recipient(s); or |
(b) | if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of "Acceptable Bank" and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the "Paying Party") and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the "Recipient Party" or "Recipient Parties"). |
31.5.2 | All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements. |
31.5.3 | A Party which has made a payment in accordance with this Clause 31.5.3 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account. |
31.5.4 | Promptly upon the appointment of a successor Agent in accordance with Clause 27.11 (Resignation of the Agent), each Paying Party shall (other than to the extent that that Party has given an instruction pursuant to Clause 31.5.5 below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 31.2 (Distributions by the Agent). |
31.5.5 | A Paying Party shall, promptly upon request by a Recipient Party and to the extent: |
(a) | that it has not given an instruction pursuant to Clause 31.5.4 above; and |
(b) | that it has been provided with the necessary information by that Recipient Party, |
31.6 | Partial payments |
31.6.1 | If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order: |
(a) | first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent, the Security Trustee (including of any Receiver or Delegate) and the Arranger under the Finance Documents; |
(b) | secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement; |
(c) | thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and |
(d) | fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. |
31.6.2 | The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a) to (d) of sub-clause 31.6.1 above. |
31.6.3 | Sub-clauses 31.6.1 and 31.6.2 above will override any appropriation made by an Obligor. |
31.7 | No set-off by Obligors |
31.8 | Business Days |
31.8.1 | 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 and such payment shall be deemed made on the date due. |
31.8.2 | 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. |
31.9 | Currency of account |
31.9.1 | Subject to sub-clauses 31.9.2 to 31.9.5 below, the Base Currency is the currency of account and payment for any sum due from an Obligor or other member of the Group under any Finance Document. |
31.9.2 | A repayment of an Unpaid Sum or a part of an Unpaid Sum shall be made in the currency in which that Unpaid Sum is denominated on its due date. |
31.9.3 | Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued. |
31.9.4 | Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. |
31.9.5 | Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency. |
31.10 | Change of currency |
31.10.1 | 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: |
(a) | 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 Original Borrower); and |
(b) | 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). |
31.10.2 | 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 Original 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. |
31.11 | Disruption to Payment Systems etc. |
31.11.1 | the Agent may, and shall if requested to do so by the Original Borrower, consult with the Original Borrower with a view to agreeing with the Original Borrower such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances; |
31.11.2 | the Agent shall not be obliged to consult with the Original Borrower in relation to any changes mentioned in sub-clause 31.11.1 above if, in its opinion (acting reasonably), it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; |
31.11.3 | the Agent may consult with the Finance Parties in relation to any changes mentioned in sub-clause 31.11.1 above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances; |
31.11.4 | any such changes agreed upon by the Agent and the Original 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 39 (Amendments and Waivers); |
31.11.5 | 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 31.11; and |
31.11.6 | the Agent shall notify the Finance Parties of all changes agreed pursuant to sub-clause 31.11.4 above. |
32. | SET-OFF |
33. | APPLICATION OF PROCEEDS |
33.1 | Order of Application |
33.1.1 | in discharging any sums owing to the Security Trustee (in its capacity as trustee), any Receiver or any Delegate; |
33.1.2 | in payment to the Agent, on behalf of the Secured Parties, for application towards the discharge of all sums due and payable by any Obligor or other member of the Group under any of the Finance Documents in accordance with Clause 31.5 (Partial payments); |
33.1.3 | if none of the Obligors or any other member of the Group is under any further actual or contingent liability under any Finance Document, in payment to any |
33.1.4 | the balance, if any, in payment to the relevant Obligor or other member of the Group. |
33.2 | Investment of Proceeds |
33.3 | Currency Conversion |
33.3.1 | For the purpose of or pending the discharge of any of the Secured Obligations the Security Trustee may convert any moneys received or recovered by the Security Trustee from one currency to another, at the spot rate at which the Security Trustee is able to purchase the currency (in accordance with its customary procedures) in which the Secured Obligations are due with the amount received. |
33.3.2 | The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
33.4 | Permitted Deductions |
33.5 | Discharge of Secured Obligations |
33.5.1 | Any payment to be made in respect of the Secured Obligations by the Security Trustee may be made to the Agent on behalf of the Lenders and that payment shall be a good discharge to the extent of that payment, to the Security Trustee. |
33.5.2 | The Security Trustee is under no obligation to make payment to the Agent in the same currency as that in which any Unpaid Sum is denominated. |
33.6 | Sums received by Obligors |
34. | NOTICES |
34.1 | Communications in writing |
34.2 | Addresses |
34.2.1 | in the case of any Obligor or any other member of the Group party to any Finance Document, to: |
Address: | Validus Holdings, Ltd. |
Attention: | Chief Financial Officer |
Facsimile: | +1 (441) 278-9009, |
Address: | Talbot Holdings Ltd. |
Attention: | Chief Financial Officer |
Facsimile: | +1(441) 278-9009; and |
Address: | Cahill Gordon & Reindel LLP |
Attention: | John Schuster, Esq. |
Facsimile: | +1 (212) 269-5420; |
34.2.2 | 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; and |
34.2.3 | in the case of the Agent, to: |
Address: | Wholesale Loans Servicing Agency Operations |
Fax: | +44 (0)20 7158 3204 |
Attention: | Wholesale Loans Servicing Agency Operations; |
34.2.4 | in the case of the Security Trustee, to: |
Address: | Wholesale Loans Agency |
Fax: | +44 (0)20 7158 3198 |
Attention: | Wholesale Loans Agency, |
34.3 | Delivery |
34.3.1 | Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective: |
(a) | if by way of fax, when received in legible form; or |
(b) | if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, |
34.3.2 | Any communication or document to be made or delivered to the Agent or to the Security Trustee will be effective only when actually received by the Agent or the Security Trustee and then only if it is expressly marked for the attention of the department or officer identified with the Agent's or the Security Trustee's signature below (or any substitute department or officer as the Agent shall specify for this purpose). |
34.3.3 | All notices from or to an Obligor shall be sent through the Agent. |
34.3.4 | Any communication or document made or delivered to the Original Borrower in accordance with this Clause will be deemed to have been made or delivered to each Guarantor. |
34.3.5 | All notices to a Lender from the Security Trustee shall be sent through the Agent. |
34.4 | Notification of address and fax number |
34.5 | Communication when Agent is Impaired Agent |
34.6 | Electronic communication |
34.6.1 | Any communication to be made between the Agent or the Security Trustee and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent, the Security Trustee and the relevant Lender: |
(a) | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
(b) | 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 |
(c) | notify each other of any change to their address or any other such information supplied by them. |
34.6.2 | Any electronic communication made between the Agent and a Lender or the Security Trustee 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 or the Security Trustee only if it is addressed in such a manner as the Agent or Security Trustee shall specify for this purpose. |
34.7 | English language |
34.7.1 | Any notice given under or in connection with any Finance Document must be in English. |
34.7.2 | All other documents provided under or in connection with any Finance Document must be: |
(a) | in English; or |
(b) | 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. |
35. | CALCULATIONS AND CERTIFICATES |
35.1 | Accounts |
35.2 | Certificates and Determinations |
35.3 | Day count convention |
36. | PARTIAL INVALIDITY |
37. | REMEDIES AND WAIVERS |
38. | COUNTERPARTS |
39. | AMENDMENTS AND WAIVERS |
39.1 | Required consents |
39.1.1 | Subject to Clause 39.2 (Exceptions) and Clause 28.19 (Releases) 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. |
39.1.2 | The Agent, or in respect of the Security Documents the Security Trustee, may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause. |
39.2 | Exceptions |
39.2.1 | An amendment or waiver that has the effect of changing or which relates to: |
(a) | Clause 30 (Sharing Among the Finance Parties) or this Clause 39; |
(b) | the definition of "Majority Lenders" or "Super Majority Lenders" in Clause 1.1 (Definitions); |
(c) | a change to the Obligors other than in accordance with Clause 26 (Changes to the Obligors); |
(d) | an extension to the date of payment of any amount under the Finance Documents; |
(e) | a reduction in the amount of any payment of principal, interest, fees or commission payable; |
(f) | an increase in or an extension of any Commitment; |
(g) | Clause 2.8 (Several Rights), Clause 9 (Collateralisation And Redesignation Of Letters Of Credit), Clause 19 (Guarantee and Indemnity), Clause 25 (Changes to the Lenders) or Clause 26 (Changes to the Obligors); |
(h) | any provision which expressly contemplates the need for the consent or approval of all the Lenders; |
(i) | a material change to the nature or scope of the Charged Property or the manner in which the proceeds of enforcement of the Transaction Security are distributed; |
(j) | the release of all or substantially all of the Transaction Security other than in accordance with the Security Documents; or |
(k) | any material change to the definition of "Advance Rate", "Borrowing Base" or "Eligible Securities" in Clause 1.1 (Definitions) or any material |
39.2.2 | An amendment or waiver which relates to the rights or obligations of the Agent, the Security Trustee or the Arranger may not be effected without the consent of the Agent, the Security Trustee or the Arranger as the case may be. |
39.2.3 | Notwithstanding the foregoing or any other provision of this Agreement, any provision of this Agreement may be amended by an agreement in writing entered into by the Original Guarantor, the Super-Majority Lenders and the Agent if: |
(a) | by the terms of such agreement, the Commitment of each Lender not consenting to the amendment provided for therein shall terminate (it being understood that the Original Guarantor may cause the Commitment of any such non-consenting Lender to be transferred to one or more new Lenders in accordance with Clause 25 (Changes to the Lenders) provided that no action shall be required to be taken by such non-consenting Lender (including the execution of any Transfer Certificate)); and |
(b) | at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of all amounts owing to it or accrued for its account under any Finance Document. |
39.3 | Exceptions |
39.3.1 | amend or waive this Clause 39, Clause 17 (Costs and Expenses) or Clause 27 (Role of the Agent and the Arranger); or |
39.3.2 | otherwise amend or waive any of the Agent's rights hereunder or subject the Agent or the Arrangers to any additional obligations hereunder. |
40. | COUNTERPARTS |
41. | USA PATRIOT ACT |
42. | GOVERNING LAW |
43. | ENFORCEMENT |
43.1 | Jurisdiction |
43.1.1 | The courts of England have 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"). |
43.1.2 | The parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party to this Agreement will argue to the contrary. |
43.1.3 | This Clause 43.1 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. |
43.2 | Service of Process |
43.2.1 | irrevocably appoints Talbot Underwriting Services Limited as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and |
43.2.2 | agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned. |
44. | WAIVER OF JURY TRIAL |
45. | CONFIDENTIALITY |
45.1 | Confidential Information |
45.2 | Disclosure of Confidential Information |
45.2.1 | to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information; |
45.2.2 | to any person: |
(a) | to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Related Funds, Representatives and professional advisers; |
(b) | with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers; |
(c) | appointed by any Finance Party or by a person to whom paragraph (a) or (b) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under sub-clause 27.14.2 of Clause 27.14 (Relationship with the Lenders)); |
(d) | who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (a) or (b) above; |
(e) | to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other |
(f) | to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 25.7 (Security over Lenders' rights); |
(g) | to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes; |
(h) | who is a Party; or |
(i) | with the consent of the Original Guarantor, |
(i) | in relation to paragraphs (a), (b) and (c) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; |
(ii) | in relation to paragraph (d) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; |
(iii) | in relation to paragraphs (e), (f) and (g) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances, |
45.2.3 | to any person appointed by that Finance Party or by a person to whom paragraph (a) or (b) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this sub-clause 45.2.3 if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of |
45.2.4 | to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information. |
45.3 | Disclosure to numbering service providers |
45.3.1 | Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information: |
(a) | names of Obligors; |
(b) | country of domicile of Obligors; |
(c) | place of incorporation of Obligors; |
(d) | date of this Agreement; |
(e) | the names of the Agent and the Arranger; |
(f) | date of each amendment and restatement of this Agreement; |
(g) | amount of Total Commitments; |
(h) | currency of the Facility; |
(i) | type of Facility; |
(j) | ranking of Facility; |
(k) | termination date for Facility; |
(l) | changes to any of the information previously supplied pursuant to paragraphs (a) to (k) above; and |
(m) | such other information agreed between such Finance Party and the Original Guarantor, |
45.3.2 | The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed |
45.3.3 | Each Obligor represents that none of the information set out in paragraphs (a) to (m) of sub-clause 45.3.1 above is, nor will at any time be, unpublished price-sensitive information. |
45.3.4 | The Agent shall notify the Original Guarantor and the other Finance Parties of: |
(a) | the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and |
(b) | the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider. |
45.4 | Entire agreement |
45.5 | Inside information |
45.6 | Notification of disclosure |
45.6.1 | of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (e) of sub-clause 45.2.2 of Clause 45.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and |
45.6.2 | upon becoming aware that Confidential Information has been disclosed in breach of this Clause 44 (Confidentiality). |
45.7 | Continuing obligations |
45.7.1 | the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and |
45.7.2 | the date on which such Finance Party otherwise ceases to be a Finance Party. |
Lender | Commitment ($) |
ING Bank N.V., London Branch | 12,500,000 |
Lloyds Bank plc | 12,500,000 |
Total | 25,000,000 |
1. | Corporate Documents |
(a) | A copy of the constitutional documents of each Original Obligor and each other member of the Group that is party to a Finance Document. |
(b) | A copy of a resolution of the board of directors of each Original Obligor and each other member of the Group that is party to a Finance Document: |
(i) | approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party; |
(ii) | authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and |
(iii) | authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party. |
(c) | A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above. |
(d) | A certificate of the Original Guarantor (signed by a director or officer of the Original Guarantor) confirming that neither the execution, delivery and performance by the Original Guarantor or any of its subsidiaries that is party to any Finance Document of this Agreement or the other Finance Documents to which it is a party nor compliance with the terms and provisions thereof, nor the consummation of the transactions contemplated therein: |
(i) | will contravene any applicable provision of any law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality; |
(ii) | will conflict or be inconsistent with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (other than Liens in favour of the Security Trustee pursuant to the Security Documents) upon any of its property or assets or those of any of its subsidiaries pursuant to the terms of any material indenture, mortgage, deed of trust, loan agreement, credit agreement or any other material instrument to which it or any of its subsidiaries is a party or by which it or any of its property or assets are bound or to which it may be subject; or |
(iii) | will violate any provision of its certificate of incorporation, by-laws or other organisational documents, nor those of its subsidiaries. |
(e) | A copy of a resolution of the Original Guarantor in its capacity as holder of the outstanding shares of Validus Reinsurance, Ltd., approving the terms of, and the transactions contemplated by, the Security Agreement and the Account Control Agreement. |
(f) | A certificate of the Original Guarantor (signed by a director or officer of the Original Guarantor) certifying that each copy document delivered to the Agent pursuant to paragraphs 1(a), 1(b), 1(e) and 4(c) of this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
2. | Security Documents |
(a) | The Security Agreement and Account Control Agreement duly executed by the relevant Original Obligors, Validus Reinsurance, Ltd., the Custodian, the Special Report Agent and the Security Trustee. |
(b) | A copy of all documents and instruments, including UCC financing statements where applicable, required by law in each applicable jurisdiction or reasonably requested by the Agent to be filed, registered or recorded to create and perfect the Liens intended to be created under the Security Agreement. |
(c) | A copy of the results of a recent search of the UCC (or equivalent) filings made with respect to each Original Obligor in the jurisdictions contemplated in paragraph (b) above (including Washington, D.C., and Bermuda) and in such other jurisdictions in which Collateral is located which may be reasonably requested by the Agent, and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agent that the Liens indicated by such financing statements (or similar documents) are permitted under the terms of the Finance Documents or have been released. |
3. | Legal opinions |
(a) | A legal opinion of Clifford Chance LLP, legal advisers to the Arranger and the Agent in England, substantially in the form distributed to the Original Lenders prior to signing this Agreement. |
(b) | A legal opinion of Clifford Chance LLP, legal advisers to the Arranger and the Agent in New York, substantially in the form distributed to the Original Lenders prior to signing this Agreement. |
(c) | A legal opinion of Conyers, Dill & Pearman, legal advisers to the Arranger and the Agent in Bermuda, substantially in the form distributed to the Original Lenders prior to signing this Agreement. |
4. | Other documents and evidence |
(a) | Evidence that any agent for service of process referred to in Clause 43.2 (Service of process), if not an Original Obligor, has accepted its appointment. |
(b) | A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Original Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document. |
(c) | The Original Financial Statements. |
(d) | The executed Fee Letters. |
(e) | A copy of all necessary governmental or regulatory consents required by each Original Obligor and each other member of the Group in relation to the security contained in the Security Documents (including any governmental or regulatory consents required from the Bermuda Monetary Authority or the UK Financial Services Authority). |
(f) | Evidence that as at a date no earlier than the date of this Agreement, the value of the Own FAL of the Account Party is no less than $300,000,000. |
(g) | A statement provided by the Bank of New York in relation to the value of the collateral in the Collateral Accounts as of the date of this Agreement. |
(h) | Evidence that Validus Reinsurance, Ltd. has an A.M. Best financial strength rating of at least "A-". |
(i) | The Business Plan. |
(j) | Evidence that all amounts outstanding under the Original Facility Agreement have been or will be repaid in full and all commitments and liabilities thereunder have been irrevocably cancelled and discharged, on or before the first Utilisation Date. |
(k) | Evidence that any Security issued in respect of the Original Facility Agreement shall be released on or before the first Utilisation Date. |
1. | Corporate Documents |
(a) | A copy of the constitutional documents of the Additional Obligor. |
(b) | A copy of a resolution of the board of directors of the Additional Obligor: |
(i) | approving the terms of, and the transactions contemplated by, the Obligor Accession Letter and the Finance Documents and resolving that it execute, deliver and perform the Obligor Accession Letter and any other Finance Document to which it is party; |
(ii) | authorising a specified person or persons to execute the Obligor Accession Letter and other Finance Documents on its behalf; and |
(iii) | authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including, in relation to an Additional Borrower, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party. |
(c) | A specimen of the signature of each person authorised by the resolution referred to in paragraph (b)(iii) above. |
(d) | A copy of a resolution signed by all the holders of the issued shares of the Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Guarantor is a party. |
(e) | A copy of a resolution of the board of directors of each corporate shareholder of each Additional Guarantor approving the terms of the resolution referred to in paragraph (d) above. |
(f) | A certificate of the Additional Obligor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, security or similar limit binding on it to be exceeded. |
(g) | A certificate of an authorised signatory of the Additional Obligor certifying that each copy document listed in this Part II of Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of the Obligor Accession Letter. |
2. | Legal opinions |
(a) | A legal opinion of Clifford Chance LLP, legal advisers to the Agent in England, substantially in the form distributed to the Lenders prior to signing the Obligor Accession Letter. |
(b) | A legal opinion of the legal advisers to the Agent in the jurisdiction of incorporation of the Additional Obligor, substantially in the form distributed to the Lenders prior to signing the Obligor Accession Letter. |
3. | Other documents and evidence |
(a) | An Obligor Accession Letter executed by the Additional Obligor and the Original Guarantor. |
(b) | If available, the latest audited financial statements of the Additional Obligor. |
(c) | A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Obligor Accession Letter or for the validity and enforceability of any Finance Document. |
(d) | If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, evidence that the process agent specified in Clause 43.2 (Service of process), if not an Obligor, has accepted its appointment in relation to the proposed Additional Obligor. |
From: | Talbot Holdings Ltd. |
To: | [Agent] |
1. | We refer to an agreement (the "Credit Agreement") dated 28 November 2007 (as, from time to time, amended, restated, varied, novated or supplemented) and made between Talbot Holdings Ltd. as borrower, Validus Holdings, Ltd. as guarantor, ING Bank N.V., London Branch and Lloyds Bank plc as mandated lead arrangers, Lloyds Bank plc as agent and security trustee, the financial institutions defined therein as Lenders and others. |
2. | Terms defined in the Credit Agreement shall have the same meaning in this notice. |
3. | This notice is irrevocable. |
4. | We hereby give you notice that, pursuant to the Credit Agreement we wish the Lenders to issue a Letter of Credit as follows: |
(a) | Face amount: [$/£][•] |
(b) | Utilisation Date: [•] |
(c) | Term: [•] |
(d) | Expiry Date: [•] |
5. | We would like this Letter of Credit to be denominated in [sterling/dollars]. |
6. | We confirm that, at the date hereof, the Repeated Representations are true in all material respects and no Default is continuing. |
7. | The Letter of Credit should be issued in favour of Lloyd's in the form attached and delivered to the recipient at [address of recipient]. The purpose of its issue is [•]. |
To: | Lloyds Bank plc |
1. | Terms defined in the Credit Agreement shall, subject to any contrary indication, have the same meanings herein. The terms Lender, Transferee and Portion Transferred are defined in the schedule hereto. |
2. | The Lender (a) confirms that the details in the schedule hereto under the heading "Letters of Credit" accurately summarises its participation in the Credit Agreement and the Term of any existing Letters of Credit and (b) requests the Transferee to accept and procure the transfer by novation to the Transferee of the Portion Transferred (specified in the schedule hereto) of its Commitment and/or its participation in such Letters of Credit by counter-signing and delivering this Transfer Certificate to the Agent at its address for the service of notices specified in the Credit Agreement. |
3. | The Transferee hereby requests the Agent to accept this Transfer Certificate as being delivered to the Agent pursuant to and for the purposes of Clause 25 (Changes to the Lenders) of the Credit Agreement so as to take effect in accordance with the terms thereof on the Transfer Date or on such later date as may be determined in accordance with the terms thereof. |
4. | The Transferee confirms that it has received a copy of the Credit Agreement together with such other information as it has required in connection with this transaction and that it has not relied and will not hereafter rely on the Lender to check or enquire on its behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of any such information and further agrees that it has not relied and will not rely on the Lender to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Obligors or any other member of the Group that is party to a Finance Document. |
5. | The Transferee hereby undertakes with the Lender and each of the other parties to the Credit Agreement that it will perform in accordance with their terms all those obligations which by the terms of the Finance Documents will be assumed by it after delivery of this Transfer Certificate to the Agent and satisfaction of the conditions (if any) subject to which this Transfer Certificate is expressed to take effect. |
6. | The Lender makes no representation or warranty and assumes no responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any document relating thereto and assumes no responsibility for the financial condition of the Obligors or any other member of the Group that is party to a Finance Document or for the performance and observance by the Obligors or |
7. | The Lender hereby gives notice that nothing herein or in the Finance Documents (or any document relating thereto) shall oblige the Lender to (a) accept a re-transfer from the Transferee of the whole or any part of its rights, benefits and/or obligations under the Finance Documents transferred pursuant hereto or (b) support any losses directly or indirectly sustained or incurred by the Transferee for any reason whatsoever including the non-performance by an Obligor or any other party to the Finance Documents (or any document relating thereto) of its obligations under any such document. The Transferee hereby acknowledges the absence of any such obligation as is referred to in (a) or (b) above. |
8. | This Transfer Certificate, the rights, benefits and obligations of the parties hereunder and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law. |
Lender: | |||
9. | Transferee: | ||
10. | Transfer Date: | ||
11. | Lender's Participation in the Facility: | ||
Lender's Commitment | Portion Transferred | ||
12. | Letter(s) of Credit | ||
Lender's Participation | Term and Expiry Date | Portion Transferred |
To: | The Society and Council of Lloyd's |
(a) | We have provided a multi bank Letter of Credit as agent on behalf of the Lenders which will be included in the Lloyd's Deposit of [•] (the "Corporate Member"). |
(b) | The execution and delivery by the Agent of the Letter of Credit has been duly authorised by all necessary action on the part of the Lenders and the Letter of Credit has been duly executed and delivered by the Agent on behalf of the Lenders. |
(c) | The obligations of the Lenders under the Letter of Credit constitute legal, valid and binding obligations. |
To: | The Society and the Council of Lloyd's, |
1. | Subject to the terms hereof, the Issuing Lenders shall make payments within two business days of demand of Lloyds Bank plc (the "Agent") in accordance with paragraph 4 below. |
2. | Upon a demand being made by Lloyd's pursuant to paragraph 4 below each Issuing Lender shall pay that proportion of the amount demanded which is equal to the proportion which its Commitment set out in Schedule 1 hereto bears to the aggregate Commitments of all the Issuing Lenders set out on Schedule 1 hereto provided that the obligations of the Issuing Lenders under this Credit shall be several and no Issuing Lender shall be required to pay an amount exceeding its Commitment set out in Schedule 1 hereto and the Issuing Lenders shall not be obliged to make payments hereunder in aggregate exceeding a maximum amount of [£/$][•]. Any payment by an Issuing Lender hereunder shall be made in sterling to Lloyd's account specified in the demand made by Lloyd's pursuant to paragraph 4 below. |
3. | This Credit is effective from [•] (the "Commencement Date") and will expire on the Final Expiration Date. This Credit shall remain in force until we give you not less than four years notice in writing terminating the same on the later of (a) the fourth anniversary of the Commencement Date and (b) any date subsequent to 31 December [2017/2018] as specified in such notice (the "Final Expiration Date"), our notice to be sent by registered mail for the attention of the General Manager, Members' Financial Services, at the above address. |
4. | Subject to paragraph 3 above, the Issuing Lenders shall pay to Lloyd's under this Credit upon presentation of a demand by Lloyd's on the Agent, Lloyds Bank plc at [•], marked for the attention of [•] substantially in the form set out in this Schedule 6 (Form of Letter of Credit) hereto the amount specified therein (which amount shall not, when aggregated with all other amounts paid by the Issuing Lenders to Lloyd's under this Credit, exceed the maximum amount referred to in paragraph 2 above). |
5. | The Agent has signed this Credit as agent for disclosed principals and accordingly shall be under no obligation to Lloyd's hereunder other than in its capacity as an Issuing Lender. |
6. | All charges are for the Applicant's account. |
7. | Subject to any contrary indication herein, this Credit is subject to the International Standby Practices – ISP98 (1998 publication – International Chamber of Commerce Publication No. 590). |
8. | This Credit shall be governed by and interpreted in accordance with English law and the Issuing Lenders hereby irrevocably submit to the jurisdiction of the High Court of Justice in England. |
9. | Each of the Issuing Lenders engages with Lloyd's that demands made under and in compliance with the terms of this Credit will be duly honoured on presentation. |
By: | _______________________________ |
Name and Address of Issuing Lender | Commitment ([Sterling/Dollars]) |
Total Value | ___________ |
By: | _______________________________ |
To: | [insert name of bank/credit institution] |
Collateral Description | Advance Rate | |
Matching Currency* | Non-Matching Currency* | |
Cash: U.S. Dollars or Sterling, including time deposits, certificates of deposit and money market deposits held at Bank of New York, as custodian, or that are subject to a first priority security interest of the Agent or Security Trustee. | 100% | 95% |
U.S. Government Securities: Securities issued or directly and fully guaranteed or insured by the US or any agency or instrumentality thereof (provided that the full faith and credit of the US is pledged in support thereof), including assets issued by the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, Federal Home Loan Bank or the Government National Mortgage Association. | With maturities of (x) less than three years from the date of acquisition, 98%, (y) three to ten years from the date of acquisition, 95% and, (z) more than 10 years from the date of acquisition 93%. | With maturities of (x) three years or less from the date of acquisition, 93%, (y) three to ten years from the date of acquisition, 90% and, (z) more than 10 years from the date of acquisition 87%. |
UK Government Securities: Securities issued by the United Kingdom government. | With maturities of (x) less than three years from the date of acquisition, 98%, (y) three to ten years from the date of acquisition, 95% and, (z) more than 10 years from the date of acquisition 93%. | With maturities of (x) three years or less from the date of acquisition, 93%, (y) three to ten years from the date of acquisition, 90% and, (z) more than 10 years from the date of acquisition 87%. |
Other Sovereign Debt: Debt issued or guaranteed by Canada, France and Germany and rated at least (i) AA- by S&P and (ii) Aa3 by Moody's. | With maturities of (x) less than three years from the date of acquisition, 98%, (y) three to ten years from the date of acquisition, 95% and, (z) more than 10 years from the date of acquisition 93%. | With maturities of (x) three years or less from the date of acquisition, 93%, (y) three to ten years from the date of acquisition, 90% and, (z) more than 10 years from the date of acquisition 87%. |
Investment Grade Municipal Bonds: Municipal Bonds rated at least (i) A by S&P and (ii) A2 by Moody's and maturing within five years from the date of acquisition. | 95% | 90% |
Investment Grade Non-Convertible U.S. Corporate Bonds: Non-convertible corporate bonds issued by any entity organised in the US which are "publicly traded" on a nationally recognised exchange, eligible to be settled by DTC and rated at least (i) AA- by S&P and (ii) Aa3 by Moody's. Such Collateral cannot represent more than 50 per cent. of the Borrowing Base and where provided by an individual issuer is limited to an amount of 5 per cent. of the Borrowing Base. | With maturities of (x) less than three years from the date of acquisition, 90% and (y) three to ten years from the date of acquisition, 85%. | With maturities of (x) less than three years from the date of acquisition, 85% and (y) more than two years to ten years from the date of acquisition, 80%. |
Collateral Description | Advance Rate | |
Other Securities: All other investments, obligations or securities. | 0.0% | 0.0% |
* | For the avoidance of doubt, in respect of any calculation relating to a Letter of Credit, "Matching Currency" is a reference to Collateral denominated in the same currency as the relevant Letter of Credit and "Non-Matching Currency" is a reference to Collateral denominated in any other currency. |
To: | Lloyds Bank plc |
Value | Advance Rate | Borrowing Base Contribution | ||
Cash | $_________ | x _________ | = | $________________ |
Category of Eligible Securities | ||||
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
$_________ | x _________ | = | $________________ | |
Total Borrowing Base | $________________ |
1. | Debenture dated 25 March 2003 and granted by the Original Borrower in favour of Lloyds Bank plc securing all money and liabilities due, owing or incurred by the Original Borrower to Lloyds Bank plc. |
2. | Liens over monies held in insurance broking accounts by Talbot Underwriting Risk Services Ltd held in trust for the policyholders and underwriters. |
3. | Liens over monies held in insurance broking accounts by Talbot Underwriting Risk Services (Middle East) Ltd. held in trust for the policyholders and underwriters. |
4. | Liens over monies held in insurance broking accounts by Talbot Risk Services (Labuan) Pte Ltd. held in trust for the policyholders and underwriters. |
5. | Liens over monies held in insurance broking accounts by Talbot Underwriting Services (US) Ltd. held in trust for the policyholders and underwriters. |
6. | Pledge and Security Agreement dated as of 12 March 2007 and granted by the Original Borrower in favour of JPMorgan Chase Bank, National Association securing the “Secured Obligations” as defined in the Pledge and Security Agreement. |
7. | Pledge and Security Agreement dated as of 12 March 2007 granted by Validus Reinsurance, Ltd. in favour of JPMorgan Chase Bank, National Association securing the “Secured Obligations” as defined in the Pledge and Security Agreement. |
8. | Pledge and Security Agreement dated 28 November 2007 granted by Validus Reinsurance, Ltd. in favour of Lloyd’s TSB Bank, plc securing the “Secured Obligations” as defined in the Pledge and Security Agreement. |
1. | Talbot Insurance (Bermuda), Ltd.'s reinsurance/FAL arrangements with the Account Party pursuant to the slips entered into in April 2011, January 2012, December 2012 and the slip to be entered into in November 2013. |
2. | The Original Borrower's FAL procurement and contingent fee agreement with Talbot 2002 Underwriting Capital Ltd, amended and restated in November 2012 and to be amended and restated in November 2013. |
3. | Restrictions on the movement of assets as a result of the Lloyd's Deeds entered into by the Original Borrower and its subsidiaries. |
4. | Liens over monies held in the insurance broking accounts of Talbot Underwriting Risk Services Ltd, Talbot Underwriting Risk Services (Middle East) Ltd., Talbot Risk Services (Labuan) Pte Ltd and by Talbot Underwriting Services (US) Ltd. (as described in Schedule 10 (Existing Liens)). |
1. | A Guarantee and Indemnity granted by Talbot Underwriting Holdings Ltd ("TUHL") in favour of Lloyds Bank plc in respect of certain obligations of Talbot Underwriting Services Ltd ("TUSL"), a wholly-owned subsidiary of TUHL, pursuant to which TUHL guarantees the discharge of all monies and liabilities now or hereafter due owing or incurred by TUSL to the Bank, up to a limit of £3,000,000, together with interest, commission and costs as therein provided. |
2. | A Guarantee and Indemnity granted by TUHL in favour of Lloyds Bank plc in respect of certain obligations of Talbot Underwriting Risk Services Ltd ("TURSL"), a wholly-owned subsidiary of TUHL, pursuant to which TUHL guarantees the discharge of all monies and liabilities now or hereafter due owing or incurred by TURSL to Lloyds Bank plc, up to a limit of £3,000,000, together with interest, commission and costs as therein provided. |
Name of Subsidiary | Jurisdiction of Organisation | Direct Owners | Percentage Ownership |
Validus Reinsurance, Ltd. | Bermuda | Validus Holdings, Ltd. | 100% |
Validus Research, Inc. | Canada | Validus Reinsurance, Ltd. | 100% |
Validus Specialty, Inc. | Delaware, USA | Validus Holdings (UK) Ltd. | 100% |
Validus Reaseguros, Inc. | Florida, USA | Validus Specialty, Inc. | 100% |
Validus Ventures Ltd. | Bermuda | Validus Holdings, Ltd. | 100% |
Validus America, Inc. | Delaware, USA | Validus Holdings, Ltd. | 100% |
Underwriting Risk Services Holdings (Bermuda), Ltd. | Bermuda | Validus Holdings, Ltd. | 100% |
Validus Services, Inc. | Delaware, USA | Validus Specialty, Inc. | 100% |
Validus Amalgamation Subsidiary, Ltd. | Bermuda | Validus Reinsurance, Ltd. | 100% |
Validus UPS, Ltd. | Bermuda | Validus Reinsurance, Ltd. | 100% |
Validus Re Chile S.A. | Chile | Validus Reinsurance, Ltd. | 99% |
Underwriting Risk Services, S.A. | Chile | Validus Reinsurance, Ltd. | 99% |
IPCRe Limited | Bermuda | Validus Amalgamation Subsidiary, Ltd. | 100% |
Validus Re Americas, (New Jersey) Inc. | New Jersey, USA | Validus Speciality, Inc. | 100% |
Validus Re Americas, Ltd. | Bermuda | Validus Speciality, Inc | 100% |
Validus Services (Bermuda), Ltd. | Bermuda | Validus Holdings, Ltd. | 100% |
Name of Subsidiary | Jurisdiction of Organisation | Direct Owners | Percentage Ownership |
Validus Management Europe Limited | Ireland | Validus Reinsurance, Ltd. | 100% |
AlphaCat Re 2011, Ltd. | Bermuda | Validus Reinsurance, Ltd. | 22.3% |
AlphaCat Re 2012, Ltd. | Bermuda | Validus Reinsurance, Ltd. | 37.9% |
AlphaCat 2013, Ltd. | Bermuda | Validus Reinsurance, Ltd. | 40.86% |
PαCRe, Ltd. | Bermuda | Validus Reinsurance, Ltd. | 10% |
PαCRe Investments Ltd. | Cayman | Validus Reinsurance, Ltd. | .01% |
AlphaCat Managers Ltd. | Bermuda | Validus Ventures Ltd. | 100% |
AlphaCat Adventure Fund, Ltd. | Bermuda | AlphaCat Managers Ltd. | 100% |
AlphaCat Diversified Fund Ltd. | Bermuda | AlphaCat Managers Ltd. | 100% |
AlphaCat Reinsurance Ltd. | Bermuda | AlphaCat Managers Ltd. | 100% |
AlphaCat Master Fund Ltd. | Bermuda | AlphaCat Managers Ltd. | 100% |
AlphaCat High Return Fund Ltd. | Bermuda | AlphaCat Managers Ltd. | 100% |
AlphaCat Prima Fund Ltd. | Bermuda | AlphaCat Managers Ltd. | 100% |
Talbot Entities: | |||
Talbot Holdings, Ltd. | Bermuda | Validus Holdings, Ltd. | 100% |
Talbot Capital Ltd. | Bermuda | Talbot Holdings, Ltd. | 100% |
Talbot 2002 Underwriting Capital Ltd. | UK | Talbot Holdings, Ltd. | 100% |
Name of Subsidiary | Jurisdiction of Organisation | Direct Owners | Percentage Ownership |
Talbot Underwriting Holdings Ltd. | UK | Talbot Holdings, Ltd. | 100% |
Talbot Insurance (Bermuda) Ltd. | Bermuda | Talbot Holdings, Ltd. | 100% |
Talbot Underwriting Capital Ltd. (Dormant) | UK | Talbot Holdings, Ltd. | 100% |
Talbot Underwriting Ltd. | UK | Talbot Underwriting Holdings Ltd. | 100% |
Talbot Underwriting Services Ltd. | UK | Talbot Underwriting Holdings Ltd. | 100% |
Talbot Risk Services Pte Ltd. | Singapore | Talbot Underwriting Ltd. | 100% |
Talbot Underwriting Services (US) Ltd. | Delaware, USA | Talbot Underwriting Ltd. | 100% |
Talbot Risk Services (Labuan) Pte. Ltd. | Labuan | Talbot Underwriting Ltd. | 100% |
Talbot Underwriting (MENA) Ltd. | Dubai | Talbot Underwriting Ltd. | 100% |
Talbot Underwriting Risk Services, Ltd. | UK | Talbot Underwriting Ltd. | 100% |
Flagstone Entities: | |||
Flagstone Reinsurance (Luxembourg), SARL | Luxembourg | Validus UPS, Ltd. | 100% |
Flagstone (Gibraltar) Limited | Gibraltar | Flagstone Reinsurance (Luxembourg), SARL | 100% |
Flagstone (Bermuda) Holdings Limited | Bermuda | Flagstone (Gibraltar) Limited | 100% |
Flagstone Management Services (Halifax) Limited | Nova Scotia | Flagstone (Bermuda) Holdings Limited | 100% |
IAL Leasing Ltd. | Bermuda | Flagstone (Bermuda) Holdings Limited | 100% |
Name of Subsidiary | Jurisdiction of Organisation | Direct Owners | Percentage Ownership |
Mont Fort Re Ltd. | Bermuda | Flagstone (Bermuda) Holdings Limited | 100% |
Flagstone (Mauritius) Limited | Mauritius | Flagstone (Bermuda) Holdings Limited | 100% |
Flagstone Underwriting Support Services (India) Pte. | India | Flagstone (Bermuda) Holdings Limited | 99% |
Flagstone Finance S.A. | Luxembourg | Flagstone (Gibraltar) Limited | 100% |
Flagstone Réassurance Suisse SA | Switzerland | Flagstone Finance S.A. | 100% |
Star & Shield Holdings LLC | Florida, USA | Flagstone Réassurance Suisse SA | 45.05% |
Star & Shield Services, LLC | Florida, USA | Star & Shield Holdings LLC | 100% |
Star & Shield Claims Services, LLC | Florida, USA | Star & Shield Holdings LLC | 100% |
Star & Shield Risk Management, LLC | Florida, USA | Star & Shield Holdings LLC | 100% |
S&S INS EXCHNG | Florida, USA | Star & Shield Risk Management, LLC | 100% |
L.P. Holding Limited | Cyprus | Flagstone Réassurance Suisse SA | 100% |
Limassol Power Plant Limited | Cyprus | L.P. Holding Limited | 100% |
Flagstone Management, SA | Switzerland | Flagstone Réassurance Suisse SA | 100% |
Flagstone Capital Mgmt Luxembourg SICAF-FIS | Luxembourg | Flagstone Réassurance Suisse SA | 100% |
Flagstone Réassurance Suisse SA (Bermuda Branch) | Bermuda (permit) | Flagstone Réassurance Suisse SA | 100% |
Name of Subsidiary | Jurisdiction of Organisation | Direct Owners | Percentage Ownership |
Flagstone Reinsurance Africa Limited | South Africa | Flagstone Réassurance Suisse SA |
1. | Reinsurance agreements with Group Ark Insurance Holdings Ltd. ("Group Ark") in which the Original Guarantor and/or its subsidiaries has ceded premiums to/from Group Ark. |
2. | Subscription Agreements dated December 9, 2005 by and between the Original Guarantor and each of its Members, for the purchase of the Voting Common Stock or Non-Voting Common Stock, as the case may be, and the transactions contemplated thereby. |
3. | Shareholders' Agreement dated December 12, 2005 by and among the Original Guarantor and its Members listed on the signature pages thereto, and the transactions contemplated thereby. |
4. | Warrant Agreements dated December 12, 2005, by and among the Original Guarantor and certain of its Members, to purchase Voting Common Stock of Holdings. |
5. | Warrant Agreements dated December 12, 2005, by and among the Original Guarantor and certain of its Members, to purchase Non-Voting Common Stock of the Original Borrower. |
6. | Discretionary Advisory Agreement and Risk Reporting and Investment Accounting Services Agreement dated December 8, 2005 by and among the Original Guarantor and Goldman Sachs Asset Management, LP. |
7. | Investment Management Agreement dated November 24 2009 between the Original Guarantor and Conning, Inc. |
8. | Assignment and Assumption Agreement dated December 20, 2011 by and among Validus Reinsurance, Ltd., Aquiline Capital Partners LLC and Aquiline Capital Partners II GP (Offshore) Ltd. |
To: | [•] as Agent |
From: | [Additional Lender] |
1. | We refer to an agreement (the "Credit Agreement") dated 28 November 2007 (as, from time to time, amended, restated, varied, novated or supplemented) and made between Talbot Holdings Ltd. as borrower, Validus Holdings, Ltd. as guarantor, ING Bank N.V., London Branch and Lloyds Bank plc as mandated lead arrangers, Lloyds Bank plc as agent and security trustee, the financial institutions defined therein as Lenders and others. |
2. | This letter shall take effect as an Additional Lender Accession Letter for the purpose of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in this letter unless given a different meaning in this letter. |
3. | We hereby agree to become a "Lender" and to assume a Commitment in an amount of $/£[•]. |
4. | We confirm that: |
(a) | we are an Approved Credit Institution; and |
(b) | we have received a copy of the Credit Agreement together with such other documents and information as we have required in connection with this transaction and that we have not relied and will not hereafter rely on any other Finance Party to check or enquire on our behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of any such information and further agree that we have not relied and will not rely on any other Finance Party to assess or keep under review on our behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Obligors. |
5. | We hereby undertake with each of the other parties to the Credit Agreement that we will perform in accordance with their terms all those obligations which by the terms of the Finance Documents will be assumed by us after delivery of this letter to the Agent. |
6. | Our Facility Office address and related details are as follows: |
7. | This Letter and any non-contractual obligations arising out of or in connection with it are governed by and construed in accordance with English law. |
To: | Lloyds Bank plc as Agent and Security Trustee for itself and each of the other Secured Parties |
From: | [Subsidiary] and [Original Guarantor] |
1. | We refer to an agreement (the "Credit Agreement") dated 28 November 2007 (as, from time to time, amended, restated, varied, novated or supplemented) and made between Talbot Holdings Ltd. as original borrower, Validus Holdings, Ltd. as original guarantor, ING Bank N.V., London Branch and Lloyds Bank plc as mandated lead arrangers, Lloyds Bank plc as agent and security trustee, the financial institutions defined therein as Lenders and others. |
2. | This letter (the "Obligor Accession Letter") shall take effect as an Obligor Accession Letter for the purposes of the Credit Agreement. Terms defined in the Credit Agreement have the same meaning in paragraphs 1 to 3 of this Obligor Accession Letter unless given a different meaning in this Obligor Accession Letter. |
3. | [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to be bound by the terms of the Credit Agreement and the other Finance Documents as an Additional [Borrower]/[Guarantor] pursuant to Clause [26.2 (Additional Borrowers)]/[Clause 26.4 (Additional Guarantors)] of the Credit Agreement. [Subsidiary] is a company duly incorporated under the laws of [name of relevant jurisdiction] and is a limited liability company and registered number [•]. |
4. | [Subsidiary's] administrative details for the purposes of the Credit Agreement are as follows: |
5. | This Obligor Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
[EXECUTED AS A DEED By: [Subsidiary] | |
Signature of Director | |
in the presence of | Name of Director |
Signature of witness | |
Name of witness | |
Address of witness | |
Occupation of witness] |
[Original Guarantor] |
To: | Lloyds Bank plc as Agent |
From: | [resigning Obligor] and [Parent] |
1. | We refer to an agreement (the "Credit Agreement") dated 28 November 2007 (as, from time to time, amended, restated, varied, novated or supplemented) and made between Talbot Holdings Ltd. as borrower, Validus Holdings, Ltd. as guarantor, ING Bank N.V., London Branch and Lloyds Bank plc as mandated lead arrangers, Lloyds Bank plc as agent and security trustee, the financial institutions defined therein as Lenders and others. |
2. | This is an Obligor Resignation Letter. Terms defined in the Credit Agreement have the same meaning in this Obligor Resignation Letter unless given a different meaning in this Obligor Resignation Letter. |
3. | Pursuant to [Clause 26.3 (Resignation of a Borrower)]/[Clause 26.5 (Resignation of a Guarantor)], we request that [resigning Obligor] be released from its obligations as a [Borrower]/[Guarantor] under the Credit Agreement. |
4. | We confirm that: |
(a) | no Default is continuing or would result from the acceptance of this request; and |
(b) | [•] |
5. | This Obligor Resignation Letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
ING BANK N.V., LONDON BRANCH By: /s/ M. Groen | LLOYDS BANK PLC By: /s/ Freshta Mayar |
By: |
ING BANK N.V., LONDON BRANCH By: /s/ Mer Sharman | LLOYDS BANK PLC By: /s/ Freshta Mayar |
By: |
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