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0 Subordinated Loan Agreement - Silicium de Provence SAS and Evergreen Solar Inc . 7 - December 2007 [ HERBERT SMITH LOGO ] ................................ 2007 SILICIUM DE PROVENCE SAS and EVERGREEN SOLAR , INC . Silicium (organization), de (organization), Provence (organization), SAS (organization), Evergreen (organization), Solar (organization), Inc (organization), HERBERT (person), SMITH (person), SILICIUM (organization), DE (organization), PROVENCE (organization), SAS (organization), EVERGREEN (organization), SOLAR (organization) |
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1 SUBORDINATED LOAN AGREEMENT HERBERT SMITH LLP Page 1 of 12 7 - December 2007 TABLE OF CONTENTS Clause Headings Page 1 . HERBERT (person), SMITH (person) |
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18 "DISPUTES 10 Page 2 of 12 7 - December 2007 SUBORDINATED LOAN AGREEMENT THIS LOAN AGREEMENT is made on 7th December , 2007 BETWEEN : ( 1 ) SILICIUM DE PROVENCE S . A . S ., a private company with limited liability , incorporated under the laws of France , whose registered office is situated at Usine de Saint Auban , 04 600 Saint Auban , France , represented by Mr . Frank Wouters , hereinafter referred to as the "" Borrower "", and ( 2 ) EVERGREEN SOLAR , INC ., a company incorporated in Delaware , U . S . A ., with registered number 2426798 , whose registered office is situated at 138 Bartlett Street , Marlboro , Massachusetts 01752 , U . S . A . represented by Richard Chleboski , hereinafter referred to as the "" Lender "", Hereinafter referred to severally each as a "" Party "" and jointly as the "" Parties ""." SILICIUM (organization), DE (organization), PROVENCE (organization), France (location), Usine (location), de (location), Saint (location), Auban (location), 04 (location), 600 (location), Saint (location), Auban (location), France (location), Frank (person), Wouters (person), Borrower (person), EVERGREEN (organization), SOLAR (organization), , (organization), INC (organization), 138 (location), Bartlett (location), Street (location), Marlboro (location), Massachusetts (location), 01752 (location), Richard (person), Chleboski (person), Lender (person) |
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19 WHEREAS : ( A ) The Borrower intends to develop a plant in France for the production of solar grade silicon . Borrower (person), France (location) |
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20 "( B ) Lender and Borrower have entered into an agreement for the sale and purchase of solar grade silicon on the same date hereof ( the "" Silicon S & P Agreement "")." Lender (person), Borrower (person) |
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21 "( C ) Lender and Borrower have agreed that in consideration for the Borrower entering into the Silicon S & P Agreement with the Lender , the Lender shall make available to the Borrower , by way of a subordinated loan , an amount of thirty million Euros ( EUR 30 , 000 , 000 ) ( the "" Loan "")." Lender (person), Borrower (person), Borrower (person), Lender (person), Lender (person), Borrower (person) |
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28 LOAN 2 . 1 The Lender grants the Borrower a loan of a total principal amount of thirty million Euros ( EUR 30 , 000 , 000 ) to be disbursed to the Borrower in two instalments , as follows : 2 . 1 . 1 A first instalment of fifteen million Euros ( EUR 15 , 000 , 000 ) to be paid no later than 30 November 2007 |
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29 "2 . 2 The actual disbursement date of the last instalment of the Loan to the Borrower shall be the "" Effective Date ""." Borrower (person) |
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30 2 . 3 The Loan is to be paid by the Lender into the Borrower ' s account in immediately available cleared funds as follows : Bank : ING Belgium S . A ., Succursale en France Branch : Immeuble Les Caryatides , 24 / 26 boulevard Carnot , 59042 Lille cedex Account Number : 30438 IBAN number : FR76 3043 8000 0836 8300 3000 905 BIC Number : INGBFRPP Code Guichet : 00008 No du Compte : 36830 03 0009 Cle RIB : 05 or to such other bank account as may be nominated from time to time by the Borrower to the Lender pursuant to Article 14 . Lender (person), Borrower (person), Bank (organization), Belgium (location), France (location), Immeuble (location), Les (location), Caryatides (location), 24 (location), / (location), 26 (location), boulevard (location), Carnot (location), 59042 (location), Lille (location), cedex (location), bank (organization), Borrower (person), Lender (person) |
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31 "2 . 4 The Loan shall be used by the Borrower solely to finance the works arising out of and relating to the construction of the Borrower ' s plant ( the "" Works "")." Borrower (person), Borrower (person) |
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32 For the avoidance of doubt , the Loan shall not be used to increase management remuneration , for the repayment of any indebtedness for borrowed money or for any capital distribution to the Borrower ' s equity holders . Borrower (person) |
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34 INTEREST AND REPAYMENT 3 . 1 The Borrower shall , from the Effective Date , pay interest in arrears to the Lender on the Loan outstanding from time to time , such interest calculated at a rate of three percent ( 3 %) per Calendar Year compounded annually on the actual outstanding amount of the Loan plus any accrued interest and any other amounts due hereunder ; provided that upon a failure to repay a part of the Loan when due or any other default by Borrower set forth in Page 4 of 12 7 - December 2007 Clause 18 under this Loan Agreement , the foregoing rate shall increase to an amount equal to ( a ) the twelve - month EURIBOR rate determined on the business day preceding the default as reported in the Wall Street Journal , plus ( b ) three ( 3 %) on the unpaid amount only . Borrower (person), Lender (person), Borrower (person), Wall (location), Street (location) |
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37 "3 . 3 The Borrower shall repay the Loan and interest and accrued hereunder , on the date falling five ( 5 ) years after the Effective Date ( the "" Repayment Date ""), save that the Borrower may prepay all or part of the Loan in accordance with Article 4 and provided that in the event that the Lender terminates the Silicon S & P Agreement pursuant to Article 11 . 1 thereof , the Repayment Date shall be the effective date of such termination ." Borrower (person), Borrower (person), Lender (person) |
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39 3 . 5 For the purposes of Articles L . 313 - 1 et seq ., R . 313 - 1 and R . 313 - 2 of the French Code de la Consommation , the Lender hereby informs the Borrower that the all - in rate ( taux effectif global ) of the Loan is three percent ( 3 %). Lender (person), Borrower (person) |
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40 3 . 6 All payments made by the Borrower to the Lender shall be in Euros in immediately available cleared funds by electronic transfer to an account held by Silicon Valley Bank , account number [�], swift code [�], for the credit of [�]. Borrower (person), Lender (person), Silicon (location), Valley (location), Bank (organization) |
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42 EARLY REPAYMENT 4 . 1 The Borrower shall at all times be allowed to prepay the Loan in whole or in part , without premium or penalty , provided it does so in whole multiples of EUR 100 , 000 and that ten ( 10 ) days prior written notice has been delivered to the Lender . Borrower (person), Lender (person) |
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45 REPRESENTATIONS Except as otherwise stated below , each of the Lender and the Borrower hereby represents and warrants that : ( A ) It is a company duly incorporated and validly existing under the laws of its jurisdiction of incorporation ; ( B ) The obligations expressed to be assumed by it are valid and binding obligations ; ( C ) The entry into and performance by it of this Loan Agreement do not and will not conflict with ( a ) any provision of any law or regulation applicable to it , ( b ) its constitutional documents , and ( c ) any agreement which is binding upon it or any of its assets ; and ( D ) It has the power to enter into , perform and deliver this Loan Agreement and the transactions contemplated therein . Lender (person), Borrower (person) |
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47 UNDERTAKINGS Except as otherwise stated below , each of the Lender and the Borrower hereby undertakes : ( A ) To do all such things as are necessary to maintain its corporate existence ; Page 5 of 12 7 - December 2007 ( B ) To obtain , maintain and comply with the terms of any authorisation required under any applicable law or regulation to ( i ) enable it to carry out its activities and ( ii ) perform its obligations under this Loan Agreement ; and ( C ) To comply with all applicable laws and regulations . Lender (person), Borrower (person) |
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49 "SUBORDINATION 7 . 1 In the event that insolvency proceedings are initiated against the Borrower or that it is unable to pay its debts as they fall due or in the event of any moratorium on its debts or if the Borrower has proposed any composition , assignment or arrangement to its creditors , the obligation to repay the outstanding amount of the Loan : 7 . 1 . 1 shall be subordinated to any indebtedness of the Borrower to any lending or financial institution in any way related to the Works , both present and future notwithstanding whether such indebtedness is recoverable by process of law or is conditional or unconditional ("" Financial Loans "") |
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50 7 . 2 The Borrower undertakes not to grant any security interest of any kind in respect of any Manufacturer Loan or Shareholder ' s Loan unless the Loan benefits from similar security of the same rank . Borrower (person) |
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51 7 . 3 The Lender undertakes , and acknowledges that it is a condition of this Loan Agreement , that it shall not grant any mortgage , charge , pledge , lien or other security interest of any kind or arrangement that would adversely effect the rights of the Borrower under this Loan Agreement , whether to its creditors or any other third party . Lender (person), Borrower (person) |
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52 Without prejudice to the foregoing , the Borrower acknowledges and accepts that the assets of the Lender , including without limitation Lender ' s rights under this Loan Agreement , are currently and are expected to continue to be subject to liens in favour of Lender ' s creditors . Borrower (person), Lender (person), Lender (person), Lender (person) |
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53 7 . 4 The Lender undertakes that , on the written request of the Borrower , the Lender shall cooperate with the Borrower and any creditor providing a Financial Loan , Manufacturer Loan or Shareholder ' s Loan to the Borrower , by entering , in a timely manner , into such inter - creditor agreement as may reasonably be necessary and customary for the implementation of Articles 7 . 1 and 7 . 2 above . Lender (person), Borrower (person), Lender (person), Borrower (person), Borrower (person) |
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55 COSTS The Lender and the Borrower shall each pay their own respective costs , taxes and fees in connection with the implementation of this Loan Agreement . Lender (person), Borrower (person) |
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57 PARTIAL PAYMENTS If the Lender receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under this Loan Agreement , the Lender shall apply that payment towards the obligations of the Borrower in the following order : ( A ) in or towards payment of any unpaid fees , costs and expenses |
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59 ASSIGNMENT 10 . 1 Subject to ( A ) � ( D ) below and 10 . 2 neither Party may , or may purport to , assign , transfer , mortgage , charge , pledge or otherwise encumber all or any portion of its rights , interests or obligations arising under this Loan Agreement without the prior written consent of the other Party , except that : ( A ) The Borrower may freely assign , transfer , mortgage , charge , pledge or otherwise encumber all or any portion of its rights and obligations under this Loan Agreement ( or any document or legal instrument referred to in this Loan Agreement ), ( i ) to any shareholder of the Borrower or Affiliate of such shareholder or ( ii ) to any Creditor . Borrower (person), Borrower (person) |
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61 """ Creditor ( s )"" means any bank , special purpose project company , trust company , mortgage company , insurance company , pension fund , real estate investment trust , or other lending or financial institutions ( including indirect lenders and loan participants ) providing debt , equity , lease and / or bond financing or financial services , or credit support or other credit enhancement in any way related to the construction of the Works ( B ) If the Borrower does not obtain the Lender ' s prior written consent to any such assignment , transfer , mortgage , charge , pledge or other encumbrance under sub - clause ( A ) above the Borrower shall not be released from any obligation hereunder unless and until Borrower provides an unconditional repayment guarantee to Lender in a form acceptable to Lender in its sole discretion ." bank (organization), Borrower (person), Lender (person), Borrower (person), Borrower (person), Lender (person), Lender (person) |
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62 ( C ) If the Borrower obtains the Lender ' s prior written consent to any such assignment , transfer , mortgage , charge , pledge or other encumbrance under sub - clause ( A ) above assignment the Borrower shall not have to provide a repayment guarantee to Lender and the Borrower shall be released from any obligation hereunder upon the execution of an assignment and assumption agreement whereby Borrower assigns all of its rights to the assignee and the assignee assumes all of the obligations of Borrower under this Loan Agreement . Borrower (person), Lender (person), Borrower (person), Lender (person), Borrower (person), Borrower (person), Borrower (person) |
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63 ( D ) Successive assignments of Borrower ' s rights under this Loan Agreement shall remain subject to this Article 10 . 1 provided that Silicium de Provence S . A . S . Borrower (person), Silicium (organization), de (organization), Provence (organization) |
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64 shall not be released from a guarantee provided in satisfaction of its obligations under this Article 10 . 1 as a result of an assignment that occurs after the initial assignment by the Borrower unless the Lender ' s consent is obtained in which case the Borrower shall be released and item ( C ) above shall apply . Borrower (person), Lender (person), Borrower (person) |
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65 10 . 2 The Lender may assign or transfer this Loan Agreement without the consent of the Borrower in the event of a change of control of the Lender or the sale of all or substantially all the assets of the Lender to which this Loan Agreement relates . Lender (person), Borrower (person), Lender (person), Lender (person) |
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66 Page 7 of 12 7 - December 2007 10 . 3 Any assignment , transfer , mortgage , charge , pledge or other giving of security by one Party hereunder shall not in any way diminish the other Party ' s rights and obligations or the giving Parties successor ' s rights and obligations under this Loan Agreement , including any amendments hereto 10 . 4 On the written request of the Borrower , the Lender shall cooperate with the Borrower and any Creditors , by entering , in a timely manner , into such direct agreements as may reasonably be necessary and customary for project financing of the Works . Borrower (person), Lender (person), Borrower (person) |
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67 Such agreements may include provisions which permit the Creditors , in the event of a breach of the Loan Agreement or the Silicon S & P Agreement that would permit the Lender to terminate the Loan Agreement , to : ( i ) Take - over the Loan Agreement ; ( ii ) step - in , rectify or otherwise cure any breach of this Loan Agreement ; ( iii ) assign or otherwise transfer this Loan Agreement . Lender (person) |
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79 NOTICES 14 . 1 Any notice or other communication required to be given under this Loan Agreement shall be in writing and shall be delivered to the Party required to receive the notice or communication at its address as set out below : Borrower Usine de Saint Auban , Page 8 of 12 7 - December 2007 04 600 Saint Auban , France . Borrower (person), Saint (location), Auban (location), Saint (location), Auban (location), France (location) |
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80 Attention : Frank Wouters , CEO Lender 138 Bartlett Street Marlboro , Massachusetts , 01752 U . S . A . Frank (person), Wouters (person), CEO (location), Lender (person), 138 (location), Bartlett (location), Street (location), Marlboro (location), Massachusetts (location) |
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81 Attention : Richard Chleboski , Vice President or at such other address as the relevant Party may specify by notice in writing to the other Parties . Richard (person), Chleboski (person) |
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99 The arbitration shall be conducted in English and the seat shall be Paris . Paris (location) |
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102 The following events shall be considered events of default with respect to this Loan Agreement : 18 . 1 . 1 The Borrower shall default in the payment of any part of the principal or unpaid accrued interest on the Loan [ for more than [ thirty ( 30 )] days ] after the same shall become due and payable , whether at maturity or at a date fixed for prepayment or by acceleration or otherwise ; 18 . 1 . 2 The Borrower is unable or admits its inability to pay its debts as they fall due , by reason of actual or anticipated financial difficulties or suspends making payments on any of its debts or commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness ; 18 . 1 . 3 The Borrower is in a state of suspension of payments ( cessation des paiements ) within the meaning of article L . 631 - 1 of the French Commercial Code ; 18 . 1 . 4 Any corporate action , legal proceedings or other procedures or steps are taken by reason of the Borrower ' s financial difficulties , in relation to : ( A ) The suspension of payments , a moratorium of any indebtedness , winding - up , dissolution administration or reorganisation ( other than a solvent winding - up , dissolution or reorganisation carried out with the prior written consent of the Lender , such consent not to be unreasonably withheld or delayed ) of the Borrower |
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103 18 . 1 . 5 The Borrower commences proceedings for conciliation in accordance with articles L . 611 - 4 to L . 611 - 15 of the French Commercial Code or any analogous procedure or step is taken in any jurisdiction |
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106 Upon the occurrence of an event of default under Article 18 . 1 hereof , at the option and upon the declaration of the Lender , the entire unpaid principal and accrued and unpaid interest on the Loan shall without formal notice of default ( mise en demeure ) or any other judicial or extra - judicial step ,, be forthwith due and payable , and the Lender may , immediately and without expiration of any period of grace , enforce payment of all amounts due and owing under this Loan Agreement and exercise any and all other remedies granted to it . Lender (person), Lender (person) |
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112 From time to time , the Borrower shall execute and deliver to the Lender such additional documents and shall provide such additional information to the Lender as the Lender may reasonably require to carry out the terms of this Loan Agreement . Borrower (person), Lender (person), Lender (person), Lender (person) |
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115 "22 . 1 Subject to Article 22 . 2 the Borrower shall indemnify and hold the Lender harmless from any reasonable loss , cost , liability and legal or other expense , including reasonable attorneys ' fees of the Lender ' s counsel , which the Lender may directly or indirectly suffer or incur by reason of the failure of the Borrower to perform any of its obligations under this Loan Agreement or exercise of remedies ( collectively , "" Costs ""), provided , however , the indemnity agreement contained in this Article shall not apply to liabilities which the Lender may directly or indirectly suffer or incur by reason of the Lender ' s own negligence or misconduct ." Borrower (person), Lender (person), Lender (person), Lender (person), Borrower (person), Lender (person), Lender (person) |
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119 / s / Frank Wouters SIGNED by Frank Wouters for and on behalf of SILICIUM DE PROVENCE S . A . S / s / Richard G . Chleboski SIGNED by Richard G . Chleboski for and on behalf of EVERGREEN SOLAR , INC . Frank (person), Wouters (person), Frank (person), Wouters (person), SILICIUM (organization), DE (organization), PROVENCE (organization), S (organization), Richard (person), G (person), Chleboski (person), Richard (person), G (person), Chleboski (person), EVERGREEN (organization), SOLAR (organization), , (organization), INC (organization) |
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121 "Loan Servicing Agreement - PIM Ashford Venture I LLC and Ashford Hospitality Servicing LLC LOAN SERVICING AGREEMENT Dated as of ____________ , 2008 by and between PIM ASHFORD VENTURE I , LLC AND ASHFORD HOSPITALITY SERVICING LLC THIS LOAN SERVICING AGREEMENT ( this "" Agreement ""), dated as of , 2008 , is made and entered into by and between PIM Ashford Venture I , LLC , a Delaware limited liability company ( the "" Company ""), for itself and on behalf of its Subsidiaries ( hereinafter defined ), and Ashford Hospitality Servicing LLC , a Delaware limited liability company ( the "" Ashford "")." Ashford (organization), Venture (organization), I (organization), LLC (organization), Ashford (organization), Hospitality (organization), Servicing (organization), LLC (organization), ASHFORD (organization), VENTURE (organization), I (organization), LLC (organization), ASHFORD (organization), HOSPITALITY (organization), SERVICING (organization), LLC (organization), Ashford (organization), Venture (organization), I (organization), LLC (organization), Ashford (organization), Hospitality (organization), Servicing (organization), LLC (organization) |
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123 "WITNESSETH : WHEREAS , Ashford and Prudential Investment Management , Inc ., a Delaware corporation ("" PIM ""), are parties to that certain Investment Program Agreement dated of even date herewith ( the "" Program Agreement "")." Ashford (organization), Prudential (organization), Investment (organization), Management (organization) |
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124 "Pursuant to the Program Agreement , Ashford and PIM agreed to establish an exclusive investment program ( the "" Program "") whereby PIM will identify one ( 1 ) or more investors to invest in Master Ventures ( as defined in the Program Agreement ) to make Investments ( as defined in the Program Agreement ) through such Master Ventures and Master Venture subsidiaries ( the "" Subsidiaries ""); WHEREAS , Ashford and PRISA III Investments , LLC , a Delaware limited liability company ( the "" Investor ""), have formed the Company pursuant to that certain Limited Liability Company Agreement of the Company dated as of ___________ , 2008 ( the "" Master Venture Agreement "") to invest through one or more Subsidiaries in Investments ." Ashford (organization), Ashford (organization), PRISA (organization), III (organization), LLC (organization) |
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133 "Bankruptcy Code "" shall mean the United States Bankruptcy Code , as amended from time to time , any successor statute or rule promulgated thereto . """ United (location), States (location) |
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134 "Borrower "", for an Investment , shall mean , collectively , the borrowers under such Investment . """ Borrower (person) |
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135 "Borrower Related Party "" shall mean any Affiliate of the Borrower ." Borrower (person), Borrower (person) |
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136 "For avoidance of doubt , any mezzanine lender shall be considered a Borrower Related Party if any such mezzanine lender becomes an Affiliate of the Borrower through foreclosure or other conversion of the collateral for a mezzanine loan in connection with any Property . """ lender (person), Borrower (person), lender (person), Borrower (person) |
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137 "Borrower Transfer "" means a "" Transfer ,"" as defined in the Loan Documents . """ Borrower (person) |
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138 "Business Day "" shall mean any day that is not a Saturday or Sunday , and that is not a legal holiday in New York , New York , nor a day that banking institutions or savings associations in any of the foregoing cities are closed for business . """ New (location), York (location), New (location), York (location) |
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144 "Insolvency Proceeding "" shall mean any proceeding under Title 11 of the United States Code ( 11 U . S . C ." United (location), States (location) |
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147 "or any other insolvency , liquidation , reorganization or other similar proceeding concerning the Borrower , any action for the dissolution of the Borrower , any proceeding ( judicial or otherwise ) concerning the application of the assets of the Borrower , for the benefit of its creditors , the appointment of or any proceeding seeking the appointment of a trustee , receiver or other similar custodian for all or any substantial part of the assets of the Borrower or any other action concerning the adjustment of the debts of the Borrower or the cessation of business by the Borrower , except following a sale , transfer or other disposition of all or substantially all of the assets of the Borrower in a transaction permitted under the Loan Documents ; provided , however , that following any such permitted transaction affecting the title to the Property or the Interests , the Borrower for purposes of this Agreement shall be defined to mean the successor owners to the Property or the Interests ; provided , further , however , that for the purposes of this definition , in the event that more than one entity comprises the Borrower , the term "" Borrower "" shall refer to any such entity . """ Borrower (person), Borrower (person), Borrower (person), Borrower (person), Borrower (person), Borrower (person), Borrower (person), Borrower (person), Borrower (person), Borrower (person) |
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148 "Interests "" shall mean the ownership interests in Borrower pledged to Lender pursuant to the Loan Documents ." Borrower (person), Lender (person) |
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149 "2 "" Lender "" shall mean the holder of legal title to the Loan Documents ." Lender (person) |
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150 "Initially , the Lender for each Investment and for all purposes under the Loan Documents and this Agreement shall be the Company or the Subsidiary that holds such Investment . """ Lender (person) |
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151 "Loan "", for each Investment , shall mean the loan made or acquired by Lender and evidenced and secured by the Loan Documents . """ Lender (person) |
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154 "Person "" shall mean any individual , sole proprietorship , corporation , general partnership , limited partnership , limited liability company or partnership , joint venture , insurance company , association , joint stock company , bank , trust , estate , unincorporated organization , any federal , state , county or municipal government ( or any agency or political subdivision thereof ), and any other legal entity . """ bank (organization) |
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155 "Principal Balance "", for each Loan , shall mean , at any time of determination , the initial principal balance of the Loan thereof , less any payments of principal thereon received by the Lender . """ Lender (person) |
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156 "Principal Prepayment "", for each Loan , shall mean any payment of principal made by the Borrower on the Loan that is received in advance of its scheduled payment date , whether made by reason of casualty or condemnation or otherwise . """ Borrower (person) |
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158 "Servicer "" shall mean initially Ashford or any replacement Servicer appointed in accordance with the terms of this Agreement . """ Ashford (organization) |
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166 ( b ) The Servicer shall : ( i ) provide to the Holders ( 1 ) a summary of the current status of principal and interest payments on the Loan , ( 2 ) copies of the Borrower ' s current financial statements , to the extent in the Servicer ' s possession , ( 3 ) current information , if any , as to the value of the Property , to the extent in the Servicer ' s possession , ( 4 ) copies of any default or acceleration notices sent to the Borrower with respect to the Loan and all material correspondence related thereto , ( 5 ) copies of all notices received or given by Servicer pursuant to any intercreditor agreement related to the Loan , ( 6 ) copies of any written report prepared by any consultant retained by Servicer , and ( 7 ) other information with respect to the Borrower or the Loan , requested by any Holder , to the extent in the Servicer ' s possession . Borrower (person), Borrower (person), Borrower (person) |
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167 ( ii ) receive all payments of interest , principal and other sums on account of or with respect to the Loan |
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169 Subject to the below provisions of this Section 2 , the Program Agreement and the Master Venture Agreement , the Servicer shall have authority to act on behalf of the Lender and the Holders with respect to the Loan , to transact with the Borrower and to grant or withhold consents or approvals under the Loan Documents , enforce the Loan Documents and otherwise act on behalf of the Lender and the Holders , all in accordance with Accepted Loan Servicing Practices . Lender (person), Borrower (person), Lender (person) |
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170 None of the following actions may be undertaken by the Servicer without the prior written consent of the Company : 4 ( i ) modify , amend or waive in any respect whatsoever ( A ) the interest rate , monthly payment , or other monetary or economic provisions ( including with respect to the date or time upon which any obligations are due ) of the Loan , including to defer interest payments |
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172 Without limiting the generality of the foregoing , the Servicer , acting on behalf of the Holders in accordance with the terms of this Agreement , may rely on the advice of legal counsel , accountants and other experts ( including those retained by the Borrower ) and upon any written communication or telephone conversation which the Servicer believes to be genuine and correct or to have been signed , sent or made by the proper Person . Borrower (person) |
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174 ( f ) Each Holder hereby undertakes and agrees , upon the request of the Servicer , to execute , verify , deliver and file in a timely manner any proofs of claim , consents , assignments or other action necessary or appropriate to permit the Servicer to enforce the obligations of Borrower to the Lender in respect of the Loan , and to vote any claims at any meeting of creditors or for any plan or with respect to any matter as the Servicer shall direct , subject to the provisions of this Section 2 and otherwise in accordance with the terms of this Agreement , all in order to preserve and maintain all claims against Borrower for sums due under the Loan so that the Lender will have the benefit of such claims as provided in the Loan Documents or under applicable law . Borrower (person), Lender (person), Borrower (person), Lender (person) |
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175 ( g ) Servicer shall not , without the consent of the Company , assign its rights or delegate its duties hereunder unless such assignment is to an Affiliate of Ashford ( as defined in the Master Venture Agreement ) and does not constitute a Change in Control ( as defined in the Master Venture Agreement ). Ashford (organization) |
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179 "( i ) As full compensation for its services hereunder , Servicer shall be entitled to a management fee with respect to each Investment , which shall be an annual fee payable in equal quarterly installments in arrears equal to 0 . 25 % multiplied by the Capital Contribution ( as defined in the Master Venture Agreement ) made by the Investor and Ashford ( as defined in the Master Venture Agreement ) to acquire such Investment ( the "" Management Fee "")." Ashford (organization) |
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180 "Notwithstanding the foregoing to the contrary and except as otherwise provided in Section 5 ( c ) below , with respect to any Investment that is subject to a default remaining uncured beyond any applicable notice and cure periods ( an "" Event of Default ""), Servicer shall receive a workout fee in lieu of the Management Fee with respect to such Investment , which shall be an annual fee payable for such Investment in the amount of 0 . 50 % of the Capital Contributions made by the Investor and Ashford ( as defined in the Master Venture Agreement ) to acquire such Investment ( the "" Workout Fee "")." Ashford (organization) |
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186 If a court of competent jurisdiction orders , at any time that any amount received or collected in respect of the Loan must , pursuant to any insolvency , bankruptcy , fraudulent conveyance , preference or similar law , be returned to the Borrower or paid to any Holder or any other Person , then , notwithstanding any other provision of this Agreement , the Servicer shall not be required to distribute any portion thereof to any Holder , and all Holders shall promptly on demand repay to the Servicer the portion thereof which shall have been theretofore distributed to the related Holder , together with interest thereon at such rate , if any , as the Servicer shall have been required to pay to the Borrower , the Holders , or such other Person with respect thereto . Borrower (person), Borrower (person) |
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196 The Servicer shall notify the Holders promptly if the Borrower seeks or requests a release of the lien with respect to the Loan or seeks or requests the Lender ' s consent to , or takes any action in connection with or in furtherance of , any Borrower Transfer , incurring additional indebtedness or a Principal Prepayment of the Loan . Borrower (person), Lender (person), Borrower (person) |
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197 If the Borrower requests consent to a Borrower Transfer or incurring any incur additional indebtedness , the Servicer shall obtain the prior written consent of the Company prior to the Lender ' s granting consent or agreement thereto ( which consent shall be subject to the same standard applicable to the Lender ' s ability to withhold such consent set forth in the Loan Documents ). Borrower (person), Borrower (person), Lender (person), Lender (person) |
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199 "An event of default by Servicer ( a "" Servicer Default "") hereunder shall exist in the event that one or more of the following events shall occur and be continuing beyond any applicable grace or cure periods : ( i ) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency , readjustment of debt , marshalling of assets and liabilities or similar proceedings , or for the winding - up or liquidation of its affairs , shall have been entered against Servicer ; ( ii ) Servicer shall consent to the appointment of a conservator or receiver or liquidator or liquidating committee in any insolvency , readjustment of debt , marshalling of assets and liabilities , voluntary liquidation or similar proceedings of or relating to Servicer or of or relating to all or substantially all of its property ; ( iii ) Servicer shall admit in writing its inability to pay its debts generally as they become due , file a petition to take advantage of any applicable insolvency or reorganization statute , make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations ; ( iv ) any failure on the part of Servicer to observe or perform in any material respect any covenant or agreement on the part of Servicer contained in this Agreement , which remains unremedied for a period of fifteen ( 15 ) Business Days after the date on which written notice of such failure , requiring the same to be remedied , shall have been given to Servicer by a Holder ( except that said fifteen ( 15 ) Business Day period shall be 8 extended for such period of time as shall be reasonably necessary in order to cure such default as long as Servicer shall be diligently prosecuting such cure to completion and said extended period would not reasonably be expected to materially impair a Holder ' s interest in the Loan but in no event shall such additional period exceed sixty ( 60 ) days ) |
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207 With respect to each Loan , Servicer hereby represents and warrants to each of the Holders on the date of acquisition of such Loan by the Holders : ( a ) if Servicer or any Affiliate ( as defined in the Master Venture Agreement ) of Servicer acquired the Loan , Servicer and / or such Affiliate conveying the Loan to the Holders have good title to , and are the sole holders of the Loan , free and clear of any liens , security interests , claims , charges or other encumbrances |
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221 "The Holders acknowledge and agree that the Loan represents a single "" claim "" under Section 101 of the Bankruptcy Code , and that no Holder would be a separate creditor of the Borrower under the Bankruptcy Code ." Borrower (person) |
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248 "The Lender or the Servicer on its behalf , as agent for the Holders , shall maintain a register for the recording of the names and addresses of the Holders , the name and address of each Holder ' s agent for service of process ( the "" Register "")." Lender (person) |
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252 PIM ASHFORD VENTURE I , LLC , a Delaware limited liability company By : PRISA III Investments , a Delaware limited liability company By : PRISA III REIT Operating LP , a Delaware limited partnership , its sole member By : PRISA III OP GP , LLC , a Delaware limited liability company , its general partner By : PRISA III Fund LP , a Delaware limited partnership , its manager By : PRISA III Fund GP , LLC , a Delaware limited liability company , its general partner By : PRISA III Fund PIM , LLC , a Delaware limited liability company , its sole member By : Prudential Investment Management , Inc ., a Delaware corporation , its sole member By : Name : James P . Walker Title : Vice President By : Ashford Hospitality Finance LP , a Delaware limited partnership By : Ashford Hospitality Finance General Partner LLC , a Delaware limited liability company , its general partner By : Name : David Brooks Title : Vice President Signature Page to Loan Servicing Agreement ASHFORD HOSPITALITY SERVICING LLC , a Delaware limited liability company By : Name : David Brooks Title : Vice President Signature Page to Loan Servicing Agreement SCHEDULE 1 LOAN DOCUMENTS Source : OneCLE Business Contracts . ASHFORD (organization), VENTURE (organization), I (organization), LLC (organization), James (person), P (person), Ashford (organization), Hospitality (organization), Finance (organization), LP (organization), Ashford (organization), Hospitality (organization), Finance (organization), General (organization), Partner (organization), LLC (organization), David (person), Brooks (person), ASHFORD (organization), HOSPITALITY (organization), SERVICING (organization), LLC (organization), David (person), Brooks (person) |
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254 1 ] - Union Bank of California NA and Crocs Inc . [ UNION BANK OF CALIFORNIA LOGO ] AMENDMENT NO . Union (organization), Bank (organization), California (location), UNION (organization), BANK (organization), CALIFORNIA (location) |
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256 "1 TO LOAN AGREEMENT ( this "" Amendment ""), dated as of November 21 , 2007 , is entered into by and among Union Bank of California , N . A ., ("" Bank ""), and Crocs , Inc ., a Delaware corporation ("" Borrower ""), with reference to the following facts : RECITALS A ." Union (organization), Bank (organization), California (location), Bank (organization), Delaware (organization), Borrower (person) |
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257 "The Borrower and Bank are parties to that certain Loan Agreement , dated as of May 8 , 2007 , ( the "" Loan Agreement ""), as amended from time to time , pursuant to which the Bank has provided the Borrower with certain credit facilities ." Borrower (person), Bank (organization), Bank (organization), Borrower (person) |
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258 B . Borrower has requested that Bank increase the commitment amount of certain of the existing credit facilities , extend maturity dates , and make certain other modifications to the Loan Agreement . Borrower (person), Bank (organization) |
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259 C . Bank is willing to grant such accommodations to Borrower on the terms and conditions set forth below . Bank (organization), Borrower (person) |
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269 Borrower will maintain Domestic Accounts Receivable of not less than $ 35 , 000 , 000 as of the fiscal quarter ended December 31 , 2007 and not less than $ 40 , 000 , 000 as of the fiscal quarter ended March 31 , 2008 and thereafter . Borrower (person) |
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270 """ Domestic Accounts Receivable "" means accounts receivable owing to Borrower , payable in United States dollars , arising out of the sale or lease of goods or the rendition of services by Borrower , with respect to which the account debtor is a resident of the United States .""" Borrower (person), United (location), States (location), Borrower (person), United (location), States (location) |
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274 The Bank shall have received an original of this Amendment , duly executed by the Borrower and the Bank |
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275 The Borrower shall have executed and delivered to the Bank the Revolving Note and such other documents and instruments as the Bank may reasonably require . Borrower (person), Bank (organization), Bank (organization) |
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279 All representations and warranties made in the Loan Agreement or in any other document or documents relating thereto , including , without limitation , any Loan Documents furnished in connection with this Amendment , shall survive the execution and delivery of this Amendment and the other Loan Documents , and no 1 investigation by the Bank or any closing shall affect the representations and warranties or the right of the Bank to rely thereon . Bank (organization), Bank (organization) |
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281 The Borrower is not aware of any events which now constitute , or with the passage of time or the giving of notice , or both , would constitute , an Event of Default under the Loan Agreement . Borrower (person) |
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285 The Loan Agreement and the other Loan Documents remain in full force and effect and the Borrower ratifies and confirms its agreements and covenants contained therein . Borrower (person) |
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286 The Borrower hereby confirms that , after giving effect to this Amendment , no Event of Default or Default exists as of such date . Borrower (person) |
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290 THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA . CALIFORNIA (location), CALIFORNIA (location) |
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292 This Amendment is binding upon and shall inure to the benefit of the Bank and the Borrower and their respective successors and assigns |
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298 THIS AMENDMENT , TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN , REPRESENTS THE FINAL AGREEMENT BETWEEN THE LENDERS AND THE BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR , CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES . BORROWER (person) |
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299 THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE BANK AND THE BORROWER . BANK (organization), BORROWER (person) |
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301 CROCS , INC . By : / s / Peter Case Peter Case Title : Chief Financial Officer Address : 6328 Monarch Park Place Niwot , Colorado 80503 Attention : Keith Love , Treasury Manager Telecopier : ( 303 ) 858 - 7048 Telephone : ( 303 ) 848 - 7084 UNION BANK OF CALIFORNIA , N . A . Peter (person), Case (person), Peter (person), Case (person), 6328 (location), Monarch (location), Park (location), Place (location), Niwot (location), Colorado (location), 80503 (location), Keith (person), Love (person), UNION (organization), BANK (organization), CALIFORNIA (location) |
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302 By : / s / Douglas S . Lambell Douglas S . Lambell Title : Vice President Address : 530 B Street , 4th Floor San Diego , California 92101 Attention : Douglas S . Lambell , VP Telecopier : ( 619 ) 230 - 3766 Telephone : ( 619 ) 230 - 3029 3 Source : OneCLE Business Contracts . Douglas (person), S (person), Douglas (person), S (person), 530 (location), B (location), Street (location), 4th (location), Floor (location), San (location), Diego (location), California (location), Douglas (person), S (person) |
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